O'Neil v. Bergan, 81-1034.

Citation452 A.2d 337
Case DateOctober 21, 1982
CourtCourt of Appeals of Columbia District

William J. Chen, Jr., Washington, D.C., for appellant.

David N. Webster, Washington, D.C., with whom Ronald G. Precup and Lucien Hilmer, Washington, D.C., were brief, for appellees.

Before KELLY, MACK, and FERREN, Associate Judges.

FERREN, Associate Judge:

This case presents two principal questions: whether the trial court erred (1) in directing a verdict in favor of appellees, partners in the law firm of Williams & Connolly,1 on the ground that appellant had failed to make out a prima facie case of legal malpractice or breach of contract; or (2) in refusing appellant permission to call defense counsel as a witness, and in denying appellant's motion to disqualify defense counsel on ethical grounds. Finding no error, we affirm.


In reviewing a directed verdict, we must consider the evidence in the light most favorable to appellant. See Mills v. Cosmopolitan Insurance Agency, Inc., D.C.App., 424 A.2d 43, 46 (1980). From this viewpoint, the evidence at trial established the following facts:

Appellant, Eleanor O'Neil, is a minority shareholder in the A.P. Woodson Company (Woodson), a home heating oil corporation owned almost entirely by her family. In December 1973, Woodson offered to redeem O'Neil's and her children's shares for $656,719.50. This price was the "fair market value" of the stock as determined under a 1972 stockholders' agreement providing that "fair market value" would be calculated based on the appraised value of company property and on a "good-will factor." Woodson was willing to pay the full purchase price in cash, or to give O'Neil cash plus a real estate parcel known as "Ward Court." O'Neil refused this offer.

O'Neil decided she needed an attorney to represent her in further dealings with Woodson. In June 1975, after hiring and dismissing two attorneys, she approached the the firm of Williams & Connolly. The firm assigned John Mendenhall, a tax specialist, to represent O'Neil. Mendenhall accepted her retainer and introduced her to Paul Wolf, who would assist him.2 O'Neil informed Mendenhall that she wished to investigate suspected wrongdoing by Woodson's management and to have Woodson redeem her stock and her children's stock for its "actual value," in exchange for cash and the Ward Court property.

Over the next fifteen months, Mendenhall met with O'Neil (and with members of her family who acted as her advisors) at least six times, and communicated with her by mail and by telephone. Mendenhall procured from Woodson and turned over to O'Neil information about (1) the company's tax returns, (2) corporate income paid out as dividends, (3) the sale of certain real estate by the company, (4) the hiring and firing of company employees, and (5) corporate expenditures for executive compensation, employee bonuses, entertainment and travel allowances, insurance premiums, club fees, and loans. O'Neil testified that Williams & Connolly assembled "thousands" of documents for her.

In December 1975 and January 1976, Mendenhall took action to forestall Woodson's sale of the Ward Court real estate. When Woodson's attorney notified Mendenhall that the company contemplated selling the property, Mendenhall consulted O'Neil and, at her instruction, wrote to Woodson threatening court action if the sale went through. Woodson did not sell the property.

In August 1976, O'Neil's mother informed her that Mendenhall was planning to leave Williams & Connolly. O'Neil telephoned Mendenhall, and he confirmed that he expected to leave the firm in October 1976. O'Neil asked him to represent her at Woodson's annual stockholders' meeting before he left, and he agreed. Mendenhall attended the meeting in September 1976 and distributed a letter written by O'Neil which alleged that Woodson's attorney had insulted her.

Just before leaving the firm, Mendenhall met with O'Neil. He introduced her to his partner, Raymond Bergan, a negotiation specialist, and told her that Bergan would handle her affairs for Williams & Connolly. Mendenhall pointed out that he would be traveling frequently to Washington, D.C., from his new home in New York and would be available to assist Bergan during the transition period.

In November 1976, O'Neil telephoned Bergan and requested him to inform Woodson that he had replaced Mendenhall as her counsel. Bergan asked O'Neil to notify the company herself, and she did so. In December 1976, Bergan obtained information for O'Neil about the termination of a Woodson employee, Jack Cooper, and forwarded it to her by mail. Between January and June 1977, O'Neil met with Bergan several times.3 Bergan obtained answers from Woodson to eighteen additional questions posed by O'Neil about the Cooper termination, as well as information about the termination of another Woodson employee, Gerald Furst.

In June 1977, Bergan telephoned O'Neil and set up a meeting to discuss terms for redemption of her stock and her children's stock. O'Neil told Bergan that as compensation for these shares she wished to receive a cash payment, as well as the Ward Court property, and an assurance that her ex-husband would continue as a vice president of Woodson. O'Neil and Bergan agreed that the price of her stock and her children's stock should total $1.25 million.

About one month after the meeting, in July 1977, Bergan sent O'Neil a draft letter to Woodson proposing an asking price for the stock of $1.5 million. O'Neil telephoned Bergan's office and instructed his secretary not to send Woodson the draft letter. She then discharged Williams & Connolly as her attorneys.

At the close of appellant's evidence — consisting of evidence by O'Neil, her ex-husband, her son, and her former brother-in-law4appellees moved for a directed verdict on the ground that the jury could not properly deal with either the contract or the malpractice claim because appellant had not offered the expert testimony necessary to establish the standard of care. Appellees also argued that the evidence in any event did not establish liability or damages. Counsel for appellant replied that the evidence was sufficient to show that, in fifteen months, appellees had devised "no game plan," had failed to obtain the value of the stock, had not followed O'Neil's instructions to propose a total price of $1.25 million for the stock, had not prepared a redemption agreement, and had abandoned O'Neil as a client — all resulting in "a prima facie case of no performance" and thus malpractice, as well as a breach of contract. Counsel for appellant conceded that the value of the Woodson stock had increased during the period of appellees' representation but argued that his client had been damaged because "she has lost the use of money" during that period.

The trial court granted appellees' motion for a directed verdict, stating,

The case went forward both on a theory of contract and on a theory of tort, mal legal, in malpractice. There has been no expert testimony making reference to standards of care. I have seen no proof here independently of any expert testimony which would support a charge in malpractice. I have seen no proof of damages. I have seen no proof of breach of contract.

The Court, at this stage of the proceedings, resolving inferences in the light most favorable to the Plaintiff, still feels that there is not a case to go to the jury and it grants the motion.

The court entered judgment accordingly, and appellant timely noted this appeal.


Appellant contends the trial court erred in directing a verdict for appellees, since reasonable jurors could have determined, from evidence of record, that appellees failed to perform their contract in good faith "in a reasonably skillful manner," and also committed professional malpractice, because: (1) Mendenhall did not prepare a stock redemption agreement; (2) Mendenhall and Bergan did not make "reasonable efforts" to determine the "value" of O'Neil's and her children's stock; (3) Mendenhall did not provide "an appropriate transition" when he left the firm; and (4) Bergan asked O'Neil herself to notify Woodson that he was her attorney.

A. Attorney Malpractice

The elements of an action for professional negligence are the same as those of an ordinary negligence action. "The plaintiff bears the burden of presenting evidence 'which establishes the applicable standard of care, demonstrates that this standard has been violated, and develops a causal relationship between the violation and the harm complained of.'" Morrison v. MacNamara, D.C.App., 407 A.2d 555, 560 (1979) (citations omitted). A uniform standard of care applies in actions for negligence: reasonable care under the circumstances. Morgan v. District of Columbia, D.C.App., 449 A.2d 1102, 1108-09 (1982). Inherent in such reasonable care, however, is the requirement "that those with special training and experience adhere to a standard of conduct commensurate with such attributes." Morrison, supra at 560. Thus, "a lawyer must exercise that degree of reasonable care and skill expected of lawyers acting under similar circumstances." Id. at 561:

The question then becomes: how is the plaintiff to establish for the trier of fact the expected degree of reasonable care and skill appropriate to the case? In the medical malpractice context, the rule in this jurisdiction is that a plaintiff must present expert testimony establishing the applicable standard of care unless common knowledge warrants an inference of negligence. Baylor v. United States, D.C.App., 407 A.2d 664, 669 (1979); Harris v. Cafritz Memorial Hospital, D.C.App., 364 A.2d 135, 137 (1976) (per curiam), cert. denied, 430 U.S. 968, 97 S.Ct. 1650, 52 L.Ed.2d 359 (1977); Haven v. Randolph, 161 U.S.App.D.C. 150, 151, 494 F.2d 1069, 1070 (1974) (per curiam); Smith v....

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