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D.C. Court of Appeals Declines To Follow Exhaustion of Appeals Rule in Legal Malpractice Action
In Bleck v. Power, 955 A.2d 712 (D.C. Sept. 4, 2008), the D.C. Court of Appeals affirmed the trial court's ruling that the plaintiff's malpractice suit was barred by the three-year statute of limitations. The issue was when the cause of action for legal malpractice accrued.
The legal malpractice suit arose out of a claim under a long-term disability policy. The plaintiff's claim for LTD benefits was denied, and she then retained an attorney to represent her in seeking reconsideration. On May 14, 1999, the insurer rendered a final decision denying the claim. The attorney agreed to bring a lawsuit on the plaintiff's behalf. However, the lawsuit was not filed until May 10, 2002, almost three years later.
The insurer moved to dismiss the suit as time-barred by a policy provision specifying that any action to recover benefits had to be brought within two years from the end of the time within which proof of total disability was required. The trial court granted the motion to dismiss.
The plaintiff discharged the attorney and hired new counsel, who filed a motion for reconsideration. This motion was denied on Jan. 7, 2004, and there was no appeal.
Nearly three years later, on Jan. 5, 2007, the plaintiff filed a legal malpractice action against the defendant in D.C. Superior Court. The defendant attorney moved to dismiss the complaint as barred by the three year statute of limitations. The defendant argued that the limitations period began to run on July 29, 2003, when the court dismissed the plaintiff's suit against the insurer. The plaintiff argued that the statute of limitations did not begin to run until her motion for reconsideration was denied on Jan. 7, 2004.
The trial court granted the defendant's motion to dismiss.
On appeal, the D.C. Court of Appeals affirmed.
The Court reasoned that the plaintiff could have initiated a malpractice actioin against the attorney immediately after the contractual deadline was missed for commencing an action against the disability insurer. In cases where an attorney has missed a deadline for filing suit, the injury occurred when the client's action was legally subject to dismissal, rather than the actual, but fortuitous, date of dismissal.
D.C. does follow the continous representation rule, under which a client's legal malpractice claim does not accrue until the attorney's representation concerning the particular matter in inssue is terminated, even if the client knows before then that her attorney has made an injurious error. However, in this case, the plaintiff by August 2003 knew that the attorney had missed the contractual filing deadline, and she had replaced him with new counsel. This was more than three years before she filed suit.
The plaintiff argued that the statute of limitations on her legal malpractice claim was tolled while her timely Rule 59(e) motion was pending, because there was no final, appealable judgment until the court denied that motion. The D.C. Court of Appeals rejected that argument. In situations where an attorney's error results in a loss at trial, the Court has specifically declined to adopt an "exhaustion of appeals rule", pursuant to which the cause of action for malpractice would accrue only when the adverse judgment is affirmed on appeal.
Posted by David B. Stratton on 04/21/2009 at 01:07 PM
District of Columbia •
Legal Malpractice •
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Legal Malpractice Suit in D.C. Dismissed For Plaintiff’s Lack of Expert Testimony
In Footbridge Limited Trust v. Zhang, 584 F.Supp. 2d 150 (D.D.C. Nov. 5, 2008), Judge Kollar-Kotelly dismissed a legal malpractice suit due to plaintiff's lack of expert testimony to support the claim. The suit arose out of a real estate closing in which the plaintiff had loaned certain non-party borrowers $1.5 million, through Cambridge Holdings Group. Cambridge Holdings at the time employed the defendant attorney. Plaintiff alleged that the defendant attorney's negligence was responsible for a seven month delay in the recordation of its security interests on the property that was purchased. During the seven month period, a bank recorded a mortgage as to which a security interest in the same property was pledged. Subsequently, the borrowers defaulted on their loan and filed for bankruptcy. The plaintiff attempted to foreclose on its security interests, but alleged that because of the intervening security interest of the bank, it received only $467,959 from the sale instead of $2.25 million.
The defendant attorney denied any responsibility for the delay in the recordation, and denied having attended the loan closing or having any knowledge of the loan transaction.
The defendant moved for summary judgment after the close of discovery, on the grounds that the plaintiff had not presented any expert testimony in support of its claims. The plaintiff argued that an attorney's failure to file a lien instrument for over one-half year following a real estate closing demonstrates a lack of skill and care so obvious that the trier of fact can find negligence as a matter of common knowledge.
The Court acknowledged that under D.C. law, there is a "common knowledge" exception to the requirement that a legal malpractice claim must be supported by expert testimony. The following examples are under the "common knowledge" exception: allowing the statute of limitations to run on a client's claim; permitting entry of default judgment against the client; failing to instruct the client to answer interrogatories; failing to allege affirmative defenses; failing to file tax returns; failing to follow the client's explicit instructions; and billing a client for time not spent providing services. Beyond that, the "common knowledge" exception is narrowly applied.
Here, the Court noted that the defendant attorney was not employed by the plaintiff, and that there is no allegation that the attorney received instructions from his own client which he failed to follow. The Court stated that "lt is entirely unclear what duties an attorney owes not only to his client, but to ta third-party, by merely attending a loan closing (even assuming that there was evidence that [defendant] attended the closing, which tere is not)." The Court also pointed out that on the issue of proximate cause of plaintiff's damages, to evaluate the parties conflicting evidence, the jury would need to know the effect that priority security interests have on properties subject to multiple unrelated liens, and particularly how those liens are paid when they are subject to a bankruptcy proceeding.
Accordingly, because the plaintiff did not produce a timely expert report, the Court granted the defendant's motion for summary judgment.
Dwight D. Murray, Esq. of Jordan Coyne & Savits, LLP participated in the defense of this matter.
Posted by David B. Stratton on 04/08/2009 at 02:12 PM
District of Columbia •
Legal Malpractice •
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Daubert Challenge to Mold Expert Results In Dismissal of Legal Malpractice Claim
In Young v. Burton, 567 F.Supp.2d 121 (D.D.C. July 22, 2008), the plaintiffs filed a legal malpractice claim based on the defendants' alleged failure to file a timely personal injury lawsuit. The underlying suit was a claim for damages suffered by plaintiffs as a result of exposure to toxic mold while residing at an apartment building. In order to succeed on their legal malpractice claim, plaintiffs were required to show that they could have recovered in the underlying tort suit. To make this showing, the plaintiffs relied on the expert testimony of Dr. Ritchie Shoemaker as to the cause, nature, and extent of their injuries from exposure to toxic mold.
At the close of discovery, the defendants moved to exclude Dr. Shoemaker's testimony, on the grounds that his opinions were not based on a reliable methodology, and that regardless, Dr. Shoemaker did not follow his own methodology with respect to plaintiffs.
In a lengthy and well-reasoned opinion, Judge Huvelle concluded that Dr. Shoemaker's diagnosis of plaintiffs, as well as his opinions relating to general and specific causation, were not sufficiently grounded in scientifically valid principles and methods to satisfy Daubert. The defendants' motions were granted.
In a subsequent ruling, Judge Huvelle granted the defendants' motions for summary judgment on the grounds that the plaintiffs had no expert testimony to support their underlying claims.
Deborah Murrell Whelihan, Esq. was lead counsel for one of the defendants in this matter, and further inquiries regarding this matter may be directed to her.
Posted by David B. Stratton on 04/07/2009 at 02:19 PM
District of Columbia •
Legal Malpractice •
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D.C. Court of Appeals Recognizes Defense of Judgmental Immunity in Legal Malpractice Action
In Biomet, Inc. v. Finnegan Henderson LLP, No. 07-CV-813 (D.C. March 19, 2009), the Court formally recognized the defense of judgmental immunity in legal malpractice actions. Concerning this defense, the Court stated the following:
Essentially, the judgmental immunity doctrine provides that an informed professional judgment made with reasonable care and skill cannot be the basis of a legal malpractice claim. Central to the doctrine is the understanding that an attorney's judgmental immunity and an attorney's obligation to exercise reasonable care coexist such that an attorney's non-liability for strategic decisions 'is conditioned upon the attorney acting in good faith and upon an informed judgment after undertaking reasonable research of the relevant legal principals and facts of the given case.'
Id. The Court also observed that if judgmental immunity were not recognized as a defense, that would
"mean that 'every losing litigant would be able to sue his attorney if he could find another attorney who was willing to second
guess the decisions of the first attorney with the advantage of hindsight.'
The Court also pointed out that "no claim of legal malpractice will be actionable for an attorney's reasoned exercise of informed judgment on an unsettled proposition of law." Id., at p. 10. This unsettled law exception to malpractice liabiity is a specific application of the judgmental immunity doctrine.
Posted by David B. Stratton on 04/05/2009 at 12:42 PM
District of Columbia •
Legal Malpractice •
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