McCartney v. Dunn & Conner, Inc.

• Court: Pennsylvania Superior Court
• Writing for the Court: MONTEMURO
• Citation: McCartney v. Dunn & Conner, Inc., 563 A.2d 525, 386 Pa.Super. 563 (Pa. Super. Ct. 1989)
• Decision Date: 01 September 1989
• Parties: Ronald L. McCARTNEY, Appellant, v. DUNN & CONNER, INC., Andrew J. Conner and Robert C. Ward, Appellees. 1234 PITTS. 1988 1235 PITTS. 1988

Page 525

563 A.2d 525

386 Pa.Super. 563

Ronald L. McCARTNEY, Appellant, v. DUNN & CONNER, INC., Andrew J. Conner and Robert C. Ward, Appellees.

1234 PITTS. 1988

1235 PITTS. 1988

Superior Court of Pennsylvania.

Argued April 24, 1989.

Decided July 14, 1989.

Reargument Denied Sept. 1, 1989.

Robert Lesuer, Erie, for appellant.

Theodore O. Struk and Stephen M. Houghton, Pittsburgh, for appellees.

Before MONTEMURO, JOHNSON and CERCONE, JJ.

MONTEMURO, Judge:

This is a consolidated appeal, filed by Ronald L. McCartney, M.D., from two Orders entered by the Court of Common Pleas of Erie County on July 25, 1988. Under No. 01234 Pittsburgh 1988, the trial court granted appellees' motion for a partial summary judgment, filed initially on January 6, 1988. Under No. 01235 Pittsburgh 1988, the trial court granted appellees' motion for summary judgment, filed initially on April 27, 1988. Appellees are the law firm Dunn & Conner, Inc., and Andrew J. Conner and Robert C. Ward. Following a careful review of the extensive record in this case, we affirm the entry of summary judgment and the entry of partial summary judgment.

On October 15, 1986, the appellant filed a complaint, claiming that the appellees had been negligent in their legal representation of the appellant in a prior lawsuit which arose and was ultimately litigated in the state of Texas. In an Opinion filed by the trial court on March 29, 1988, the court accurately sets forth the facts underlying the Texas lawsuit:

[Appellant] is a board certified radiologist. He left his practice in California in 1975 to become associated with Huguley Memorial Seventh-Day Adventist Medical Center, Inc. (hereinafter "Huguley"). At that time, the medical center was under construction. On August 25, 1976, [appellant] and Huguley executed a written agreement entitled "Provision of Radiology Services Agreement" which essentially provided that the [appellant] was being employed by Huguley to organize, supervise and operate a radiology department at Huguley. Article 9.02 of the agreement granted each party the right to terminate the agreement on ninety (90) days written notice to the other party.

On December 24, 1975, [appellant] signed three more documents--a Letter of Intention and two Notes. The thrust of these writings was that the hospital would advance living expenses to the [appellant] during the period of time that the hospital was being constructed and the radiology department was being organized, and that once the radiology unit was operational, the [appellant] would pay back to Huguley the sum of the advances made.

The hospital opened in early 1977 and in September of that year, the governing board of the hospital gave [appellant] a ninety-day notice of termination, as required by the Radiology Services Agreement. [Appellant] left the employ of the hospital in December of 1977. In November of 1978, he brought suit against Huguley alleging that: (1) Huguley had breached an oral agreement to employ the [appellant] as head of the radiology unit for at least five (5) years; (2) that Huguley breached the medical staff bylaws by terminating the [appellant] without notice and a hearing; and, (3) that the wrongful discharge had caused the [appellant] to be defamed. Huguley counterclaimed for the loans it had made to the [appellant] to subsidize him prior to the opening of the hospital.

Op. of Trial Court, March 29, 1988, at 1-3.

In the instant appeal, the parties do not dispute the fact that in October of 1978, the appellant contacted the appellees regarding his Texas litigation. At that point in time, appellant's Texas counsel, Timothy Kelly, Esquire, had asked to be relieved from representing him in the lawsuit against Huguley. Appellant alleges in his complaint against the appellees that an attorney-client relationship was established at the initial October 1978 meeting and that this relationship continued through to the conclusion of the Texas litigation. R.R. at 12a. Appellees, on the other hand, claim that no attorney-client relationship arose until February of 1981, when an attorney in appellee law firm Dunn & Conner, Robert C. Ward, Esquire, agreed to appear on behalf of the appellant in the impending Texas trial. R.R. at 62a. Prior to this time, appellees aver that appellant was handling the Texas litigation pro se, and that appellees had agreed to merely assist the appellant in securing Texas counsel. R.R. at 63a. It is undisputed that Texas counsel, Jeffrey Walker, Esquire, was employed in November of 1979. Attorney Walker thereafter tried the defamation action in November of 1979. The defamation action was resolved unfavorably to appellant. Attorney Walker was dismissed as counsel in January of 1980. R.R. at 13a. Appellant was then represented by Robert C. Ward at the trial on the remaining claims against Huguley. After three days of trial, the trial court in Texas entered a judgment of non-suit against appellant on his claims against Huguley and, after deliberation on Huguley's counterclaim, the jury returned a verdict in favor of Huguley in the amount of $95,000.00. This result was affirmed by the Fifth Circuit Court of Appeals in May of 1981.

We will first address the trial court's disposition of appellees' motion for partial summary judgment (No. 01234 Pittsburgh 1988). Pursuant to Rule 1035 of the Pennsylvania Rules of Civil Procedure, summary judgment is to be entered only in cases where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Pa.R.C.P. 1035(b). In determining whether a summary judgment should be granted, the trial court must examine the record in the light most favorable to the nonmoving party. Johnson v. Baker, 346 Pa.Super. 183, 185, 499 A.2d 372, 373 (1985) (citation omitted). The trial court in the present case held that appellees' legal representation of appellant as to the theories of liability actually raised by the appellant in his complaint against Huguley was not negligent as a matter of law. The trial court correctly recognized that when a "... plaintiff alleges that [a] defendant lawyer negligently provided services to him or her as a plaintiff in the underlying action, he or she must establish that he or she would have recovered a judgment in the underlying action in order to be awarded damages in the malpractice action, which are measured by the lost judgment." Duke & Co. v. Anderson, 275 Pa.Super. 65, 71, 418 A.2d 613, 616 (1980) (citation omitted). Appellant was precluded by Texas law from maintaining an action against Huguley for failure to follow medical staff bylaws. See Weary v. Baylor University Hospital, 360 S.W.2d 895 (Tex.Civ.App.1962). In regard to the appellant's claim that Huguley breached an oral contract to employ him for a minimum five-year term, it is clear that the appellant failed to prevail on this claim not because of any legal malpractice but because of a lack of evidence. The Fifth Circuit Court of Appeals affirmed the directed verdict in favor of Huguley on this claim after noting that appellant "... failed to produce any evidence of the alleged [oral] agreement...." R.R. at 96a. The Court of Common Pleas of Erie County aptly recognized that "no amount of care exercised by the [appellees] in their role as legal counsel could have produced evidence that does not exist." Op. of Trial Court, March 29, 1988, at 5-6.

Appellant further contends that the partial summary judgment motion should not have been granted because appellees were negligent in failing to advise him to amend his complaint against Huguley to include a "tortious interference with prospective and existing contractual relations" cause of action. Appellees contend that appellant failed to raise this particular contention of legal malpractice in his complaint, filed October 15, 1986, and that the Statute of Limitations has now run, thus preventing an amendment of the complaint. Moreover, appellees contend that even if this claim of legal malpractice had been included in a timely manner in appellant's original complaint, appellees are entitled to judgment as a matter of law because by the time the appellees were handling the Texas lawsuit, the Statute of Limitations had already run on a tortious interference cause of action. Brief for Appellees at 17. Finally, appellees argue that because Huguley was legally justified in terminating Dr. McCartney, there is no viable claim for tortious interference with contractual relations under Texas law.

Our review of the record reveals that the appellant did file a motion to amend his complaint against appellees herein on July 8, 1988, seeking to specifically plead that the appellees' failure to raise different theories of liability in the Texas action constituted legal malpractice. R.R. at 265a. The trial court failed to rule on appellant's motion to amend the complaint. Our Supreme Court has held that:

... the right to amend should be liberally granted at any stage of the proceedings unless there is an error of law or resulting prejudice to an adverse party.... An amendment introducing a new cause of action will not be permitted after the Statute of Limitations has run in favor of a defendant.... This would constitute "resulting prejudice" to the adverse party. However, if the proposed amendment does not change the cause of action but merely amplifies that which has already been averred, it should be allowed even though the Statute of Limitations has already run.

Schaffer v. Larzelere, 410 Pa. 402, 406-407, 189 A.2d 267, 270 (1963). It was an abuse of discretion for the trial court to have refused to consider the motion to amend the complaint. Appellant's proposed amendment is not a new cause of action, but an amplification of allegations of negligent legal representation which are a part of his...