Garman v. Angino

• Decision Date: 30 March 2020
• Docket Number: No. 1079 MDA 2018,1079 MDA 2018
• Citation: 230 A.3d 1246
• Parties: Kent GARMAN and Kelly Garman Appellants v. Richard ANGINO, Esquire and Angino and Rovner
• Court: Pennsylvania Superior Court

230 A.3d 1246

Kent GARMAN and Kelly Garman Appellants

v.Richard ANGINO, Esquire and Angino and Rovner

No. 1079 MDA 2018

Superior Court of Pennsylvania.

Argued May 8, 2019

Filed: March 30, 2020

Clifford E. Haines, Philadelphia, for appellants.

Louis J. Isaacsohn, Philadelphia, for appellees.

BEFORE: BOWES, J., OLSON, J., and STABILE, J.

OPINION BY BOWES, J.:

Kent and Kelly Garman appeal from the May 30, 2018 order granting summary judgment in favor of Appellees Richard Angino, Esquire, ("Angino") and the law firm of Angino and Rovner (the "Law Firm"), and dismissing their complaint in this legal malpractice action. We conclude that the trial court erred in holding that res judicata , collateral estoppel, and the one recovery rule would have foreclosed the Garmans from recovering their verdict in the underlying medical malpractice action. Hence, we vacate the judgment and remand for further proceedings.

The following facts are pertinent to our review. Angino and the Law Firm represented the Garmans in two medical malpractice actions. The first action ("Garman I" ) involved a claim for injuries sustained by Mrs. Garman when a sponge was left behind during her 1993 cesarean section ("C-section") performed by Sohael Raschid, M.D. at Chambersburg Hospital. Following the surgery, Mrs. Garman experienced abdominal pain that her doctors attributed to a uterine fibroid. During a myomectomy on September 18, 1997, a surgical procedure to remove the fibroid, the sponge was discovered in her left lower abdomen. An abscess had formed around the sponge.

The Garmans, represented by Angino and the Law Firm, filed a medical malpractice action against Raschid and Chambersburg Hospital for their negligence in leaving behind the surgical sponge. A jury found in favor of the Garmans and awarded $521,588.68 in damages.

Mrs. Garman underwent another C-section on June 27, 1999. Again, she experienced abdominal pain after the surgery. A CT scan in 2006 revealed a retained foreign body in her abdomen. Mrs. Garman underwent surgery on May 23, 2006, to remove that foreign body, which was determined to be a second surgical sponge. The sponge was located in her right upper abdomen and it had adhered to her bowel. In order to remove it, surgeons had to perform a bowel resection.

On October 10, 2007, Angino and the Law Firm filed a complaint on behalf of the Garmans ("Garman II ") against the physicians and hospital involved in the 1997 myometomy when the first sponge was removed, namely Dr. Heine, Raschid, and Chambersburg Hospital, and the parties involved in the 1999 C-section, Ellen Tourtelot, M.D. and the Milton S. Hershey Medical Center. They alleged that either the defendants negligently left the second sponge during the 1997 or 1999 surgeries, or they were negligent in failing to timely discover and remove it. During the course of discovery, an expert retained by the Garmans opined that the source of the second retained sponge was the first surgery performed by Raschid in 1993. The Garmans sought permission to amend their complaint more than three years after the discovery of the second sponge to add allegations that the Garman I defendants Raschid and Chambersburg Hospital were negligent in leaving behind this second sponge. Despite an objection by these defendants that the amendment was barred by the statute of limitations, the trial court granted leave to amend.

Garman II proceeded to a jury trial on March 9, 2010. The jury returned a verdict in favor of the Garmans, and against Chambersburg Hospital and Raschid, allocating sixty-five percent of the negligence to the Hospital and thirty-five percent to Raschid. The jury found no negligence on the part of the other defendants. In addition, the jury determined that the Garmans "did not know [and] could not have known by the exercise of reasonable diligence prior to December 28, 2007, that the sponge removed from Mrs. Garman's body on May 23, 2006 was placed there during the 1993, 1997 or 1999 surgery." Verdict Slip, 3/17/10, at 1. The jury awarded damages of $735,000.

The trial court denied Raschid and Chambersburg Hospital's motion for judgment notwithstanding the verdict, and added delay damages to the award. Raschid and Chambersburg Hospital timely appealed to this Court arguing, inter alia , that claims related to the 1993 surgery were barred by the statute of limitations.¹ We agreed, finding that the trial court erred in permitting the amended complaint, which added a new cause of action for negligence arising from the 1993 surgery, after the expiration of the statute of limitations. Thus, we vacated the judgment and dismissed all claims related to the 1993 surgery, but affirmed the judgment with respect to the jury's findings of no negligence on the part of the other defendants with regard to the 1997 and 1999 surgeries. Garman v. Heine , 32 A.3d 825 (Pa.Super. 2011) (unpublished memorandum at 13), appeal granted , 616 Pa. 591, 52 A.3d 223 (Pa. 2012), dismissed as improvidently granted , 620 Pa. 48, 65 A.3d 912 (Pa. 2013).

The Garmans initiated the instant legal malpractice action against Angino and the Law Firm. They maintained that the negligence of Angino and the Law Firm in failing to timely seek amendment of the Garman II complaint to assert negligence claims against Raschid and Chambersburg Hospital for their negligence during the 1993 C-section resulted in the loss of their $700,000 verdict. Following the close of the pleadings, Angino and the Law Firm moved for summary judgment based on the statute of limitations, res judicata , collateral estoppel, and the one satisfaction rule. The trial court denied the motion with regard to the statute of limitations, finding that "genuine issues of material fact exist with regard to the applicability of the equitable discovery rule." Order, 5/21/18, at 1. However, prior to trial, the trial court granted summary judgment in favor of Angino and the Law Firm based on the other three affirmative defenses. Trial Court Order, 5/30/18, at ¶12 (holding "[t]he one satisfaction rule and the doctrines of res judicata and collateral estoppel apply to render the judgment in Garman II uncollectible").

The Garmans timely appealed, complied with the trial court's Pa.R.A.P 1925(b) order, and the trial court issued its opinion in response. The Garmans present four issues for our review, which we have re-ordered for ease of disposition:

1. Did the trial court below err, as a matter of law, in entering summary judgment in favor of [Angino and the Law Firm] on the application of [the one satisfaction rule, collateral estoppel, and res judicata ], (the "Three Affirmative Defenses") when the record was insufficient to justify judgment in their favor?

2. In entering summary judgment in favor of [Angino and the Law Firm], did the trial court below err, as a matter of law, by making factual assumptions and/or drawing inferences in favor of [Angino and the Law Firm], construing the record in the light most favorable to them, in violation of the standard of review?

3. Was the trial court's application of the [Three Affirmative Defenses] to determine that in this legal malpractice case [the Garmans] could not have won their underlying case, when these Three Affirmative Defenses had already been specifically and finally rejected by the trial and appellate courts in the underlying case, precluded by the doctrines of collateral attack and/or the coordinate jurisdiction rule?

4. Was the trial court's application of the Three Affirmative Defenses to the facts of the underlying case, when the Three Affirmative Defenses had already been specifically and finally rejected by the courts in that case, precluded by the doctrines of collateral estoppel and/or judicial estoppel?

Appellants’ brief at 5-6.

Our scope of review of a trial court's order granting summary judgment is plenary. Kowalski v. TOA PA V, L.P. , 206 A.3d 1148, 1156 (Pa.Super. 2019). Furthermore,

[w]e view the record in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Only where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to a judgment as a matter of law will summary judgment be entered. ... [O]ur standard of review is clear: the trial court's order will be reversed only where it is established that the court committed an error of law or abused its discretion.

Id . (quoting Abrams v. Pneumo Abex Corp. , 602 Pa. 627, 981 A.2d 198, 203 (2009) ).

The issue herein involves the viability of a legal malpractice action. As our Supreme Court recognized in Kituskie v. Corbman , 552 Pa. 275, 714 A.2d 1027, 1030 (1998), "a legal malpractice action is distinctly different from any other type of lawsuit ... because ... a plaintiff must prove a case within a case since he must initially establish by a preponderance of the evidence that he would have recovered a judgment in the underlying action[.]" Only then is the plaintiff permitted to prove that the attorney was negligent in the handling of the underlying case, and that his negligence was the proximate cause of the plaintiff's loss. Id . However, as we explained in Heldring v. Lundy Beldecos & Milby, P.C. , 151 A.3d 634, 644-45 (Pa.Super. 2016), "[a] legal malpractice action does not litigate the same cause of action as the underlying case in which the malpractice allegedly occurred" as the parties and the issues are different.

The instant case is unusual among legal malpractice actions as the underlying medical negligence case was fully litigated, and the Garmans prevailed at trial. The judgment was vacated on appeal because the amendment to the complaint to add claims related to the 1993 surgery was subsequently determined to have been untimely. This Court concluded that, despite the jury verdict, recovery was barred by the statute of limitations.

In their defense to claims of legal malpractice, Angino and the Law...