Doe v. Howe, 4061.

• Decision Date: 19 December 2005
• Docket Number: No. 4061.,4061.
• Citation: 626 S.E.2d 25
• Parties: John DOE, Appellant, v. Gedney M. HOWE, III, and Gedney M. Howe, III, P.A., Respondents.
• Court: South Carolina Court of Appeals

Page 25

626 S.E.2d 25

John DOE, Appellant, v. Gedney M. HOWE, III, and Gedney M. Howe, III, P.A., Respondents.

No. 4061.

Court of Appeals of South Carolina.

Heard November 7, 2005.

Decided December 19, 2005.

Rehearing Denied February 16, 2006.

COPYRIGHT MATERIAL OMITTED

Desa A. Ballard, of West Columbia, for Appellant.

A. Camden Lewis, of Columbia, M. Dawes Cooke Jr. and James H. Elliott Jr., both of Charleston; for Respondents.

GOOLSBY, J.:

This appeal involves claims by the appellant John Doe against the respondents Gedney M. Howe, III, and Gedney M. Howe, III, P.A., for legal malpractice and breach of fiduciary duty. The trial court granted summary judgment to Howe and his law firm. Doe appeals. We affirm the grant of summary judgment on Doe's action for legal malpractice, vacate the dismissal of Doe's action for breach of fiduciary duty, and remand the breach of fiduciary duty claim for a written order pursuant to our opinion in Bowen v. Lee Process Systems Co.¹

FACTS

We set forth the facts below, as we must, viewed in the light most favorable to Doe, the party against whom the trial judge granted summary judgment. We glean these facts from three sources: the allegations of the pleadings, the testimony given in depositions, and the statements of fact given in affidavits. We assume these facts are true only for the purpose of the summary judgment motion and determine merely whether they, when properly viewed, present triable issues.²

Doe, who was born September 2, 1962, is Howe's former client. From 1968 to 1980, Doe attended Porter-Gaud, a private school in Charleston. In 1977, Edward Fischer, a teacher at Porter-Gaud, began sexually molesting Doe. At the time, Doe was fourteen years old and in the ninth grade. Doe and Fischer continued to have sexual contact until 1982, two years after Doe became an adult and no longer attended Porter-Gaud.

Seventeen years later, in June 1999, Doe retained Howe and Howe's brother, Donald Howe, to represent him in an action against Porter-Gaud arising from the abuse Doe said Fischer inflicted upon him. Howe expressed concern to Doe early on that the statute of limitations presented a problem and could prevent Doe from recovering on any claim against Porter-Gaud.

Notwithstanding the statute of limitations, Porter-Gaud offered to settle Doe's claim. Based upon Howe's advice and without filing suit, Doe settled with Porter-Gaud for $88,000 in May 2000. A few months later, in October 2000, a parent of another of Fischer's victims received jury verdicts against Porter-Gaud and the estates of two former officials of the school totaling $105 million dollars. The attorneys who obtained these verdicts had also succeeded in defeating summary judgment on at least four occasions.

After learning of the verdicts, Doe contacted Donald Howe the following month to inquire about the possibility of rescinding his settlement with Porter-Gaud. According to Doe, Donald Howe knew of no way to set aside the settlement, but nevertheless agreed to talk with his brother about the matter. Doe stated he never received an answer to his inquiry from either Donald Howe or Gedney Howe.

The attorneys who obtained the multi-million dollar verdict later settled all the sexual abuse cases brought against the Porter-Gaud defendants, with each student claimant receiving an average of $2 million dollars each.

After Doe settled with Porter-Gaud, he discovered Howe had enrolled his son in Porter-Gaud during the time Howe had represented Doe. Doe also learned Howe had made significant financial contributions to Porter-Gaud since 1996. Howe never divulged to Doe these personal relationships with Porter-Gaud. In addition, Doe learned in 2001 that Howe represented Porter-Gaud in a bad-faith action against its insurer regarding payment of claims made by Fischer's victims and their parents.

Doe then brought the present action. The trial judge subsequently granted Howe's motion for summary judgment, holding that, because Doe's action against Porter-Gaud would have been untimely, Doe could not provide evidence that he "`most probably' would have received a larger settlement than he did" or that "he `most probably' would have prevailed on the underlying claim at trial."

In the same order, the trial judge denied a motion by Doe to recuse himself based on disclosures that (1) the judge had contacted Howe on an unrelated matter and (2) the judge's law clerk had applied for a position with the law firm of one of Howe's attorneys.

Doe filed this appeal after the trial judge denied his motion for reconsideration.

DISCUSSION

1. Doe contends the trial judge abused his discretion in failing to disqualify himself.

At the conclusion of the summary judgment hearing, the trial judge invited counsel for both parties to his chambers to disclose that he had previously contacted Howe to inquire whom his wife should contact to apply for a position at the new Charleston School of Law. He did not, however, ask Howe to otherwise assist his wife in securing employment with the school and he did not know of anything that indicated Howe did in fact exercise any influence on her behalf.

Two days after the hearing, the judge also disclosed to attorneys for the parties that his law clerk had an employment application pending with the law firm representing Howe. He assured counsel he would not allow the law clerk to have any further involvement with the case for that reason.

In support of his claim of judicial prejudice in this case, Doe argues (1) he was highly suspicious and mistrustful of people and the legal system because of his victimization by Fischer, Porter-Gaud, and Howe; (2) the trial judge "gratuitously" included the issue of damages in his ruling; (3) Howe had already made an unsuccessful motion before another judge in this case for summary judgment on the ground of the running of the statute of limitations; and (4) the trial judge's, to quote Doe's brief, "abhorrence" of deciding a matter involving an attorney influenced the judge's decision in this case.

As to the first contention, we are not aware of any decision recognizing the emotional fragility of a litigant as a ground for mandatory disqualification of a trial judge. Further, Doe cites no authority for this proposition in his brief. In any case, we hold the emotional fragility of a litigant, without more, provides no basis for disqualification of a judge.

As to the second contention, the mere fact that a judge includes an issue not raised by the parties does not indicate bias or prejudice. It is not at all unusual for a judge to include in an order an issue not raised by a party.³ Besides, there are rules by which a party can challenge an order that includes matters not properly before the court.⁴ The record does not suggest that Doe attempted to avail himself of these procedures.

As to the third contention, the fact that a judge would reach an outcome different from that reached by another judge does not give rise to an inference of prejudice. Judges differ all the time in their approach to the law. One need only look at the number of dissenting and concurring opinions that sometimes accompany appellate court decisions or at the number of times an appellate court reverses the decisions of other tribunals.⁵

And as to the fourth contention, although the trial judge expressed a dislike of having to sit in judgment of lawyers, he also said "it is what judges must do." Judging others is not an easy task. Just because a judge may dislike having to make a decision in a particular kind of case does not translate into his or her being unable to make an impartial and well-reasoned decision. What every litigant has a right to expect from a judge is that he or she be fair⁶ and, to paraphrase the inscription that appears on the seal of this court, he or she give the litigant his or her due, no more and no less. This we are satisfied the trial judge endeavored to do in this instance. His acknowledgment of the grave responsibility that judges have in deciding cases tells us as much.

"Under South Carolina law, if there is no evidence of judicial prejudice, a judge's failure to disqualify himself will not be reversed on appeal."⁷ "It is not enough for a party to allege bias; a party seeking disqualification of a judge must show some evidence of bias or prejudice."⁸

Because Doe made no showing here of actual prejudice, we find no abuse of discretion in the trial judge's refusal to disqualify himself. If anything, the trial judge demonstrated sensitivity toward any concerns Doe might have had regarding his impartiality by voluntarily making full disclosure of his and his law clerk's contacts with Howe and Howe's counsel.

2. Doe contends the trial judge improperly granted summary judgment on the basis that his underlying cause of action was barred by the statute of limitations.

As we understand from his brief, Doe contends that, under Rule 56 of the South Carolina Rules of Civil Procedure and Black v. Lexington School District No. 2,⁹ the question of whether the statute of limitations barred his underlying action was a matter for jury determination. He further contends evidence that "competent attorneys did, in fact defeat summary judgment on the statute of limitations in cases exactly like [his case]" was sufficient to create a genuine issue of material fact as to whether the statute of limitations was an insurmountable bar to his claim against Porter-Gaud. He makes no contention that a triable issue of fact exists regarding whether the statute of limitations would have been raised as an affirmative defense in the underlying action.¹⁰

We recognize, as Doe argues, the supreme court in Black stated "the issue of whether a defendant is estopped from claiming the statute of limitations is ordinarily a question of fact";¹¹ however, in the very same sentence in the opinion the court also noted that, nevertheless, "summary judgment is appropriate where there is no...