Thompson v. D'Angelo

• Decision Date: 29 April 1974
• Citation: 320 A.2d 729
• Parties: Charles C. THOMPSON, Sr., Administrator of the Estate of Charles C. Thompson, Jr., Plaintiff Below, Appellant, v. James P. D'ANGELO and Harvey Porter, Defendants Below, Appellees.
• Court: United States State Supreme Court of Delaware

Page 729

320 A.2d 729

Charles C. THOMPSON, Sr., Administrator of the Estate of Charles C. Thompson, Jr., Plaintiff Below, Appellant, v. James P. D'ANGELO and Harvey Porter, Defendants Below, Appellees.

Supreme Court of Delaware.

April 29, 1974.

Upon appeal from the Superior Court.

Joseph Donald Craven, Wilmington, for plaintiff below, appellant.

William F. Taylor, of Young, Conaway, Stargatt & Taylor, Wilmington, for James P. D'Angelo, defendant below, appellee.

Roger P. Sanders, of Prickett, Ward, Burt & Sanders, Wilmington, for Harvey Porter, defendant below, appellee.

CAREY and DUFFY, JJ., and BROWN, Vice Chancellor, sitting.

BROWN, Vice Chancellor:

Appellant, Charles C. Thompson, Sr., as administrator of the estate of his son, Charles C. Thompson, Jr., seeks a reversal of an order of the Superior Court denying his motion for summary judgment and granting summary judgment to the appellees, James P. D'Angelo and Harvey Porter. ¹ Appellees are members of the Delaware bar and Porter is a member of the Pennsylvania bar as well. The action against them seeks damages for malpractice based upon allegations of fraud and conflict of interests in their joint representation of Thompson as administrator.

The Court below held that in an action for malpractice the plaintiff has the burden of proving the existence and extent of the injury alleged as well as the fact that the misconduct of the attorney was a proximate cause of the injury. It further found that the appellant Thompson had failed to adequately establish a basis in law for his claim. See Thompson v. D'Angelo, Del.Super., 312 A.2d 639, 640 (1973).

While the situation is not overly complicated, the factual background as well as the position taken by the parties deserves some comment. Charles C. Thompson, Jr., a resident of Delaware, died on March 15, 1969, in an automobile accident which occurred near Chadd's Ford, Pennsylvania. He was unmarried, and his next of kin were his mother and his father, the appellant herein. With him at the time of the accident was Charlotte Yates, a minor of seventeen years, who was also unmarried but who was pregnant. She was injured in the collision.

Some two weeks after the accident, the appellant Thompson retained D'Angelo to bring suit for the wrongful death of his son. Some three weeks after this Thompson also referred Miss Yates to D'Angelo and he agreed to represent her as well in her personal injury claim. Thereafter, on July 31, 1969, over four months after the death of Charles C. Thompson, Jr., a male child was born out of wedlock to Charolotte Yates, which child she named Charles C. Thompson, III based on her assertion that he was the child of the deceased.

On August 20, 1969, appellant, represented by D'Angelo, applied for letters of administration on his son's estate, his stated purpose being 'to institute suit for wrongful death'. The petition designated his next of kin to be his mother and father. The child was not mentioned. D'Angelo enlisted the services of Porter to file suit in the United States District Court for the Eastern District of Pennsylvania and suit was filed by Porter on January 19, 1970. The named plaintiffs were Charles C. Thompson, Sr. as administrator of his son's estate, Beulah Yates, individually and as parent and natural guardian for her daughter, Charlotte A. Yates, and Charlotte A. Yates, a minor, individually. Although the child was not named as plaintiff, the complaint did contain an allegation that the decedent left surviving him a son, Charles C. Thompson, III.

Thereafter, as the result of negotiations and his interpretation of the Pennsylvania Survival and Wrongful Death Statutes as affected by Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968), ² Porter negotiated a settlement of the wrongful death action for the sum of $7,000, on the basis that the proceeds would be payable to the child, Charles C. Thompson, III. A separate settlement of the claim of Charolotte A. Yates was also obtained.

On January 19, 1971, Porter filed a petition in the District Court for approval of settlement and compromise. The petition alleged, Inter alia, that the decedent was survived by an illegitimate son and that the child was entitled to recover under the Pennsylvania Survival and Wrongful Death Statutes, but it also stated, as partial justification for the modest amount of the settlement, that there was 'a substantial legal question of the paternity of the minor'. This petition was approved by an order entered by the District Court on January 22, 1971. The order directed that the settlement amount, less costs and counsel fees, be paid to Beulah and Charlotte Yates on behalf of the child.

A check for $7,000 was thereupon issued by the insurance carrier for the District Court defendants, but apparently was made payable to the appellant as administrator, not to Mrs. Yates and her daughter on behalf of the child. Porter forwarded the check to D'Angelo who obtained appellant's endorsement. Thereafter, this check was negotiated by counsel, fees deducted, and a check for the balance of $4,400 drawn in favor of Beulah and Charlotte Yates. Appellant and Charlotte Yates came together to D'Angelo's office and Miss Yates was given the check. Together they went to cash it. Miss Yates obtained the endorsement of her mother, negotiated the check and tendered one-half, or $2,200 to the appellant. ³ The refused, claiming that at this point he first became aware that he was not to receive the entire proceeds as administrator. He supports his late awareness of the situation with his assertion that because he is unable to read and write, he had thus relied on D'Angelo as to anything he signed, and that D'Angelo had never fully explained it to him. D'Angelo denies this by his answer and affidavit.

When appellees learned that a problem existed, Porter referred the matter to yet another Delaware attorney to petition the Court of Chancery to have Charlotte Yates appointed guardian for the property of her child. Appellant obtained the services of his present attorney and intervened, claiming that the proceeds rightfully belonged to him as administrator. The Vice Chancellor ruled, and correctly in our opinion, that the effort of the appellant was an attempt to collaterally attack the order entered by the District Court and, as such, could not be maintained. He suggested that the proper remedy would be to seek relief from the order in the District Court. Claiming financial inability, appellant chose not to do so, nor did he appeal the Vice Chancellor's ruling. Instead he elected to pursue his remedy through this malpractice action in the Superior Court. As indicated previously, the Court below, on the above facts, granted summary judgment against the appellant stating simply, and without going into any detail as to the reasons, that appellant had 'failed to establish a specific loss to the estate arising from the conduct of Defendant counsel'. 312 A.2d 640.

Appellant Thompson takes the position that he has demonstrated a specific loss in the amount of $7,000 because he brought the action as personal representative on behalf of the estate, the action was settled in favor of the plaintiff, but the funds were diverted through his attorneys' application to the District Court to a nonparty, the illegitimate child, who had no legal standing as his son's heir. In support of this, he makes much of the fact that the settlement check issued by the insurance carrier was made payable to him as administrator despite the language of the District Court order.

Appellees, on the other hand, take the position that the Court below properly denied appellant's motion for summary judgment because the record indicates that there is a genuine dispute as to various material facts (pertinent to the administrator's legal rationale) particularly on the issue of the explanation given to the appellant prior to the settlement of the claim and his knowledge and approval of the settlement in favor of the child. On this point we clearly agree, and the record contains sufficient factual inconsistencies to make any detailed discussion of them unnecessary.

In addition, appellees alleged as affirmative defenses in the Court below (1) that appellant was estopped from bringing the action by virtue of the decision of the Vice Chancellor, (2) that the Vice Chancellor's decision was res judicata as to the claims of malpractice, (3) that the trial court lacked jurisdiction over the subject matter because the fund claimed by appellant was on deposit in the Court of Chancery as a result of the guardianship application and (4) the trial court lacked jurisdiction over the subject matter because of the order of the District Court.

The motion of D'Angelo for summary judgment was based solely on these affirmative defenses, and Porter's motion, which was for dismissal, judgment on the pleadings and/or summary judgment, was also based primarily on these affirmative defenses. Indeed, since appellees admit to a genuine issue as to the factual sequence of events leading up to the District Court order, it would seem that the validity of the decision of the Court below would have to depend on one or more of the affirmative defenses even though it did not say so. In fact, it is the position of appellees here that although the Court below did not predicate its ruling on the Chancery decision, their arguments on this point were fairly presented to it was consequently we may thus affirm the grant of summary judgment in their favor on this basis. See Rhein v. Wark & Company, Del.Supr., 4 Stacey 10, 174 A.2d 132 (1961).

Thus, it seems, appellant is totally dissatisfied with the decision of the Court below, and appellees seek to disassociate themselves with the literal manner in which...