Herbin v. Hoeffel

• Decision Date: 29 August 2002
• Docket Number: No. 99-CV-1371, No. , No. 99-CV-1575, No. 00-CV-18.
• Citation: 806 A.2d 186
• Parties: Jervon L. HERBIN, Appellant, v. Janet C. HOEFFEL, et al., Appellees.
• Court: D.C. Court of Appeals

806 A.2d 186

Jervon L. HERBIN, Appellant, v. Janet C. HOEFFEL, et al., Appellees.

Nos. 99-CV-1371, 99-CV-1575, and 00-CV-18.

District of Columbia Court of Appeals.

Submitted December 18, 2000.

Decided August 29, 2002.

Jervon L. Herbin, pro se.

Blair G. Brown, Washington, DC, was on the brief for appellee Janet C. Hoeffel.

Before SCHWELB, RUIZ, and REID, Associate Judges.

RUIZ, Associate Judge:

Jervon L. Herbin filed civil suits for damages against Janet Hoeffel and officers and members of the board of the D.C. Public Defender Service. He appeals the trial court's grant of summary judgment to appellee Hoeffel on Herbin's claim of spoliation of evidence, and the trial court's order of dismissal for failure to state a claim of his complaint based on a breach of client confidences against Hoeffel and the PDS defendants. We affirm in part, and reverse and remand in part.

I. STATEMENT OF THE CASE

A. Background

We review these cases for the second time. In July of 1996, appellant filed an action pro se (hereinafter Claim I), alleging that Hoeffel, a former attorney with PDS he claims represented him,¹ "willfully, deliberately, and maliciously withheld or disguarded [sic] and/or destroyed documents" which he asserts were necessary to present as evidence in his upcoming criminal defense to charges of malicious wounding, forcible sodomy, attempted rape and abduction in Loudoun County, Virginia.² The following year appellant filed a related complaint against Hoeffel and officers and members of the board of PDS (hereinafter Claim II), alleging that on February 20, 1996, Hoeffel breached a duty of confidence she owed to him by providing information to prosecutors in Virginia which "enabled such officials to serve a search warrant" on him, and that the PDS defendants authorized or failed to prevent it, or to train or monitor Hoeffel. The trial court dismissed both complaints and Herbin appealed. In Herbin v. Hoeffel, 727 A.2d 883 (D.C.1999) (Herbin I), we reversed, holding that dismissal of the complaint in Claim I was improper because the trial court had erroneously converted Hoeffel's motion to dismiss into a motion for summary judgment by relying on information outside the complaint without first giving appellant notice of his right to present additional material in support of his opposition. See id. at 887. With respect to Claim II, we held that the trial court was required by Superior Court Civil Rule 54-II to assist appellant, who was proceeding in forma pauperis, to serve process on the PDS defendants and therefore could not dismiss that action based on appellant's failure to effect service. See id. at 888.

B. Claim I

Following remand, Hoeffel filed a motion for summary judgment in Claim I, the spoliation complaint, which appellant opposed. The trial court (Hon. Richard A. Levie) granted summary judgment for Hoeffel, reasoning that the tort of spoliation of evidence does not apply to those situations in which the evidence allegedly destroyed is to be used in a criminal case. The trial court further ruled that, even assuming the tort applies, appellant could not state a cause of action because he had not shown that the unavailability of the documents impaired his defense in the criminal case, that the documents were material to his defense, or that his defense would have had a significant possibility of success even if he had the documents.

C. Claim II

In Claim II, following remand, the trial court (Hon. Robert I. Richter) did not reach the issue of service of process because he dismissed the complaint for failure to state a cognizable claim. The court ruled that while "the assertion that a confidence was breached by a lawyer may, under some circumstances, constitute an actionable claim, ... where there is no causal connection made to the alleged harm, the complaint is deficient." Appellant, believing that Herbin I addressed the merits of Claim II, subsequently filed a "Motion to Vacate Erroneous Order Dismissing with Prejudice Plaintiff's Complaint and to Reinstate the Complaint in the Instant Action." The trial court denied his motion, noting that Herbin I upheld the factual sufficiency of the complaint in Claim I, not Claim II.

Herbin appealed from the judgments in both cases and, at his request, we consolidated his appeals from the trial court's orders in Claim I (No. 99-CV-1371) and Claim II (Nos. 99-CV-1575 and 00-CV-18).³

II. ANALYSIS

A. Claim I

In his appeal from summary judgment for Hoeffel in his claim for spoliation of evidence, appellant contends that there are genuine issues of material fact as to whether Hoeffel had a duty to preserve documents for him and whether she deprived him of documents that would have assisted his defense in the criminal case.⁴ Appellee argues that the tort of spoliation of evidence does not apply to evidence to be used in a criminal case and that, even assuming it does, appellant has failed to prove a cause of action. She contends, as the trial court determined, that even assuming that appellee had a duty to preserve the documents, appellant has failed to present any evidence showing a connection between the unavailability of the documents and his ability to present a defense in his criminal trial.

We review a grant of summary judgment de novo to ensure that there is no genuine issue of material fact and that the prevailing party is entitled to judgment as a matter of law. See Colbert v. Georgetown Univ., 641 A.2d 469, 472 (D.C. 1994) (en banc). In ascertaining whether any material facts are in dispute, we view the entire record and we do so in the light most favorable to the party opposing the motion. See Ferrell v. Rosenbaum, 691 A.2d 641, 646 (D.C.1997).

In Holmes v. Amerex Rent-A-Car, 710 A.2d 846 (D.C.1998), we held that in order to prevail on a claim for the tort of negligent or reckless spoliation of evidence to be used in a civil case, a plaintiff must show, based on reasonable inferences derived from both existing and spoliated evidence,

(1) existence of a potential civil action; (2) a legal or contractual duty to preserve evidence which is relevant to that action; (3) destruction of that evidence by the duty-bound defendant; (4) significant impairment in the ability to prove the potential civil action; (5) a proximate relationship between the impairment of the underlying suit and the unavailability of the destroyed evidence; (6) a significant possibility of success of the potential civil action if the evidence were available; and (7) damages adjusted for the estimated likelihood of success in the potential civil action.

Id. at 854. We did not in Holmes decide whether a spoliation claim will lie where the evidence lost is for use in a criminal proceeding, nor do we here. Assuming, arguendo, that the tort of spoliation applies when the underlying action is a criminal case, and that appellee destroyed evidence she was bound to preserve,⁵ we agree with the trial court that appellant has failed to show a proximate relationship between the documents he alleges she wrongfully destroyed and his defense in the criminal case.

Appellant's claim is that the documents would have provided a basis for an insanity defense against the criminal charges. He claims that the documents being held by appellee contained:

Medical records from Area C—Mental Health, Commonwealth Psychiatric Center, Area B—Mental Health Facility, Psychiatric Institute of Washington, Freedom of Information Act requests to the D.C. Parole Board which were prepared by Janet C. Hoeffel, EEG brain scan test results, Personally written notations on Mental Health Records from D.C. forensic Legal Services, and my attempt to voluntarily commit myself to St. Elizabeth's Hospital in Aug. of 1980.

Even assuming that all of the documents listed above existed and had been entered into evidence in the criminal case, appellant has not demonstrated that they would have shown he was suffering from a mental disease at the time of committing the criminal offense that entitled him to an insanity defense.⁶ Appellant introduced evidence at his criminal trial of a history of physical and sexual abuse, drug use and institutionalization, including two institutionalizations during 1976-78, as well as evidence of treatment for drug and sexual problems. He attended a sex offender program at the August Institute from October 1993 to November 1994. Dr. Selvog, the Institute's Assistant Clinical Director, who had interviewed appellant three months before the attack that led to his criminal prosecution, testified on his behalf, but did not opine that appellant suffered from mental illness.⁷ Appellant also presented evidence of traumatic events that preceded the attack: that he had just broken up with his girlfriend, that he had been shot, and that he attempted suicide. Plaintiff sought four jury instructions relating to his insanity plea. None was given because the judge in the criminal trial ruled that there was "no evidence ... that at the time the offense was committed [appellant] was suffering from a mental disease or disorder."⁸ Appellant's conviction was affirmed on appeal. See Herbin v. Commonwealth, 28 Va.App. 173, 503 S.E.2d 226 (1998).

On appeal from the trial court's dismissal of his spoliation claim, appellant fails to establish how additional documents containing information about previous institutionalizations similar to what he presented in the criminal trial would have helped his insanity defense to charges of rape, sodomy and malicious wounding committed in January 1996. Thus, because appellant has failed to present evidence of a proximate relationship between the unavailability of the allegedly destroyed documents and an impairment of his insanity defense, we agree with the trial court that summary judgment was proper because he cannot establish a necessary element of the tort of spoliation of evidence.⁹

B. Claim II

Appellant also contends that the trial court erred in dismissing his complaint...