Prande v. Bell

• Decision Date: 01 September 1994
• Docket Number: No. 1725,1725
• Citation: Prande v. Bell, 105 Md.App. 636, 660 A.2d 1055 (Md. App. 1994)
• Parties: Luisa PRANDE v. John T. BELL, et al. ,
• Court: Court of Special Appeals of Maryland

Page 636

105 Md.App. 636

660 A.2d 1055

Luisa PRANDE v. John T. BELL, et al.

No. 1725, Sept. Term, 1994.

Court of Special Appeals of Maryland.

July 3, 1995.

Christopher G. Hoge (Crowley, Hoge & Fein, P.C., on the brief), Washington, DC, for appellant.

Elbert R. Shore (John T. Bell, and Bell, Shore & Rehder, on the brief), Rockville, for appellees.

Argued before WILNER, C.J., and ALPERT and CATHELL, JJ.

ALPERT, Judge.

In this case of first impression, we are asked to decide whether an attorney may be held liable for malpractice because of allegedly inadequate settlements of personal injury claims.

On September 21, 1993, Luisa Prande, appellant, filed a complaint in the Circuit Court for Montgomery County, alleging legal malpractice against John T. Bell and Elbert R. Shore, appellees. The alleged malpractice arose out of two personal injury lawsuits in which appellees had represented appellant as her attorneys. Appellees filed a general denial answer, raising several affirmative defenses.

On February 7, 1994, appellant filed an Amended Complaint, naming the law firm of Bell, Cornelius & Shore and Frank S. Cornelius, a partner in the firm, as additional party defendants. On March 31, 1994, appellees Bell and Shore filed a motion for summary judgment. Appellee Cornelius filed his own motion for summary judgment on May 10, 1994, including therewith an affidavit indicating that he had withdrawn from the partnership prior to some of the acts alleged to be malpractice.

The circuit court held a hearing on both motions for summary judgment on July 21, 1994. Both motions were granted and summary judgment was entered in favor of appellees. This appeal followed, wherein appellant asks this Court to address the following three issues:

I. Whether the trial court erred in ruling that appellant was barred by the doctrine of collateral estoppel from suing her previous attorneys for legal malpractice in two personal injury cases, due to appellant's having signed a release upon settlement of the first such case and her failure to contest an alleged settlement of her second personal injury claim.

II. Whether the trial court erred in ruling that appellee Cornelius cannot be held liable for the alleged negligence of his partners because he withdrew from the partnership after one incident of alleged negligence but before the second incident.

III. Whether appellant's Amended Complaint is barred by the applicable statute of limitations whe[n] one of the two acts of alleged malpractice occurred more than three years before the filing of the Amended Complaint, but the Amended Complaint was filed less than three years after appellant discovered the basis for her cause of action.

We hold that the trial court erred in finding that appellant was collaterally estopped from bringing her legal malpractice claim and in granting summary judgment for appellee Cornelius based on the statute of limitations.

Facts and Proceedings

On April 24, 1988, in Gaithersburg, Maryland, appellant was involved in a motor vehicle accident with Susan Spillman (the "Spillman accident"). Appellant retained John T. Bell and the firm of Bell, Cornelius & Shore to represent her in her claim against Ms. Spillman for personal injuries and damages arising out of this accident. Appellant claimed that the accident was solely and exclusively due to Ms. Spillman's negligence and that she was not in any way contributorily negligent. She also alleged that, as a direct and proximate result of the Spillman accident, she suffered permanent and extensive injuries, including a severely ruptured disc in her neck for which she underwent surgery on April 2, 1990. In addition, appellant claimed loss of income and pain and suffering.

On September 26, 1988, appellant was involved in another automobile accident in Montgomery County, this time with Lance J. Wishart (the "Wishart accident"). On December 7, 1988, appellant entered into another agreement with John T. Bell and the firm of Bell, Cornelius & Shore, for representation in her case against Wishart for personal injuries and damages resulting from the accident. Appellant contended that Mr. Wishart was solely and exclusively negligent and that she was not in any way contributorily negligent in the accident. She further alleged that, as a direct and proximate result of the accident, she suffered an exacerbation of the injuries she received in the Spillman accident, as well as additional pain and suffering and loss of income.

The firm filed suit against Wishart in the District Court of Maryland for Montgomery County on appellant's behalf in June, 1989. ¹ The case against Wishart was subsequently refiled in the Circuit Court for Montgomery County, case # 65298, and trial was set for May 26, 1992. In August, 1989, the firm filed suit on appellant's behalf in the Circuit Court for Montgomery County against Spillman. ² Trial was scheduled for September 25, 1990. Elbert R. Shore handled both of appellant's cases for the firm.

Prior to the scheduled trial date for the Spillman accident, Shore advised appellant that she should settle her claim for $7,500. At that time, Ms. Prande's total medical bills exceeded $20,000 and she had continuing symptoms for which the doctors had recommended additional surgery. According to an affidavit filed by Shore, he recommended this settlement based on his consultation with Dr. Bernard Stopak, appellant's doctor, about the nature and cause of her injuries. Dr. Stopak had examined Ms. Prande in March of 1990, and had filed a report stating that she told him she had experienced neck and arm pain after the Spillman accident. The report also stated that Ms. Prande told him that she had been involved in another accident three months after the Spillman accident, but that she had not sought medical attention for that accident. According to Dr. Stopak, Ms. Prande told him that her injuries were incurred in the Spillman accident; she had not suffered any injuries in the Wishart accident. Based on this information he received from Ms. Prande, Dr. Stopak was prepared to testify that the Spillman accident had more likely than not caused Ms. Prande's neck injuries.

During her deposition taken in the case against Spillman, Ms. Prande admitted that the Wishart accident had not worsened her condition. She further stated that Dr. Nichols, her chiropractor, had told her that the Wishart accident did not cause any aggravation of her condition. Additionally, Ms. Prande told Dr. Ramon Jenkins, a physician who examined her at the request of Spillman's attorney, that as a result of the Wishart accident, "My nerves were wrought, I was not hurt." Despite these statements that she was not injured in the Wishart accident, Ms. Prande informed Dr. Nichols that she had in fact been injured in the Wishart accident. Once Shore made Dr. Stopak aware of this information, Dr. Stopak relayed that he could no longer testify on Ms. Prande's behalf. Dr. Stopak said he could not now testify to a reasonable degree of medical probability that the Spillman accident caused the injuries because his previous opinion had been based on the belief that Ms. Prande had not been injured in the Wishart accident.

In Shore's opinion, without Dr. Stopak's testimony and given Ms. Prande's inconsistent statements concerning which accident caused her injuries, there were severe problems in establishing liability against Spillman for her injuries. Shore stated in his affidavit:

Without Dr. Stopak's testimony Ms. Prande did not have expert testimony that her neck injuries were proximately caused by the Spillman accident. In addition, I felt that Ms. Prande's credibility was severely undermined by her conflicting statements as to whether she had been hurt in the [Wishart] accident. The physical evidence did not help either--the accident had occurred in a condominium drive way [sic] at moderate (15-25 mph) speed. Finally, causation and damages was [sic] further complicated because Ms. Prande had been involved in a third automobile accident in August of 1990.

Based on this, Shore concluded that Ms. Prande's case with respect to liability was weak, and he recommended that she settle her claim for $7,500. In reliance on Shore's advice that she had no other choice, Ms. Prande agreed to settle her claim against Spillman. ³ On March 26, 1992, Shore advised Ms. Prande to settle her suit against Wishart for $3,000. At that time, appellant's hospital and medical expenses were reaching $30,000 and she needed additional surgery. Shore's recommendation was based on the fact that Ms. Prande had already testified under oath in the Spillman case that she suffered no injury in the Wishart accident. Further, she testified at the deposition that she suffered her neck injuries in the Spillman accident, so it would have been difficult to prove that the injuries had been caused by the Wishart accident. Additionally, liability was contested by Wishart and Ms. Prande had even testified that Wishart had the green arrow when he struck her car and that she had entered the intersection under a yellow light. This, coupled with the fact that there were no witnesses to support Ms. Prande's claim that Wishart had been negligent, left Ms. Prande with a weak case for liability. Finally, in contravention of her fee agreement, Ms. Prande refused to pay for either Dr. Nichols or Dr. Stopak to testify. In light of these facts, Shore felt that Ms. Prande's chances at trial were slim. Thus, he recommended the settlement, and after discussing his concerns with Ms. Prande, Shore believed he had obtained her consent over the telephone to accept the offer of $3,000. Shore communicated Ms. Prande's acceptance of the settlement to Wishart's attorneys, but Ms. Prande subsequently refused to accept the settlement offer.

Wishart then filed a Motion to Enforce Settlement Agreement. This motion was accompanied by an affidavit by Shore in which he stated that Ms. Prande had authorized him...