Walton v. Logan, 1725
| Decision Date | 05 December 2017 |
| Docket Number | No. 1725,1725 |
| Parties | JOHN J. WALTON, JR. v. JAMES R. LOGAN, et al. |
| Court | Court of Special Appeals of Maryland |
JOHN J. WALTON, JR.
v.
JAMES R. LOGAN, et al.
No. 1725
COURT OF SPECIAL APPEALS OF MARYLAND
September Term, 2016
December 5, 2017
Circuit Court for Baltimore City
Case No. 24C15003444
UNREPORTED
Eyler, Deborah S. Berger Zarnoch, Robert A. (Senior Judge, Specially Assigned), JJ.
Opinion by Zarnoch, J.
*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.
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On June 29, 2015, appellant John J. Walton ("Walton") filed a legal malpractice claim in the Circuit Court for Baltimore City against his former attorney, appellee James R. Logan ("Logan") and his law firm, James R. Logan, P.A. ("Logan, P.A.").1 Walton's allegations stemmed from Logan's filing of a bankruptcy petition on Walton's behalf, after which adversary proceedings were brought against Walton for failing to disclose certain income and legal proceedings in his petition. After multiple motions hearings and pre-trial orders, the circuit court granted summary judgment in favor of Logan. The circuit court concluded, after Walton failed to timely designate an expert for his case in chief, that Walton could not prevail without expert testimony to establish the standard of care.
On appeal to this Court, we review the trial court's rulings to address two key questions: (1) whether the circuit court abused its discretion in denying Walton's motion to modify the scheduling order to permit his designation of an expert witness after the deadline; and (2) whether the circuit court erred in granting Logan's motion for summary judgment based on Walton's inability to establish, through expert testimony, that Logan breached the requisite standard of care.
Walton alleged in his complaint that, as a result of Logan's failure to advise Walton of discrepancies and missing information in his petition, the United States Trustee filed an
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adversary proceeding2 against Walton delaying his bankruptcy case and requiring additional counsel fees to correct the omissions and discrepancies.3 Walton claimed that the delay in the proceedings and the need to hire separate counsel to represent him ultimately caused more than $100,000 in damages. Walton's bankruptcy case ultimately closed in August of 2013.
After Walton filed a complaint against Logan on July 9, 2015, the circuit court entered a pre-trial scheduling order ("scheduling order") on October 8, 2015, which included a standard track timeline for the completion of discovery and the filing of all pre-trial motions. Three deadlines in the scheduling order are especially pertinent to this case: First, Walton was required to designate an expert witness for his case in chief by January 8, 2016; second, Logan was to designate an expert witness for his defense by April 8, 2016; and third, Walton was to designate any rebuttal expert witnesses by May 9, 2016. Additionally, the scheduling order required that all discovery issues, including the resolution of any discovery disputes, were to be completed by June 8, 2016, and any motions for summary judgment were to be filed by July 9, 2016. Finally, a jury trial was to begin on September 22, 2016.
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Walton did not designate an expert witness for his case in chief by January 8, 2016 as the scheduling order required. Approximately a month after the deadline, Walton's attorney contacted Logan's attorney and requested that Logan consent to a modification of the scheduling order. Logan's attorney informed Walton's attorney that Logan would not be willing to consent to a modification, however, and that Logan had already started the process of designating expert witnesses for his defense. Some time later, Walton's attorney confirmed the substance of the conversation in a letter to Logan's attorney, dated March 29, 2016, which said:
This is [to] confirm our discussion a month or so ago, wherein I requested whether or not Mr. Logan would consent to a motion to modify the scheduling order to permit Mr. Walton to designate an expert after January 8, 2016. You indicated that Mr. Logan would not consent. However, you also indicated that Mr. Logan was in the process of identifying an expert witness, which he planned to designate. In addition, Mr. Logan stated in his interrogatory answers that he would disclose an expert witness, presumably by April 8, 2016. If Mr. Logan has changed his mind, please inform me as soon as possible, because Mr. Walton may want to designate an expert even if Mr. Logan does not.
On April 8, 2016, Logan filed his designation of two experts as required by the scheduling order. Then, on May 9, 2016, Walton mailed a "Plaintiff's Designation of Experts" to Logan's attorney, which included the name of the expert witness, Marc Kivitz, his address, a statement indicating his curriculum vitae was attached, and that he "will testify regarding breach of the applicable standard of care and associated negligence and damages." On July 5, 2016, Walton's attorney mailed a copy of "Plaintiff's Supplement to Plaintiff's Expert Witness Designation," which included Kivitz's expert report. Nowhere
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in the filing did Walton indicate that the expert would testify as a rebuttal witness only. Logan filed a motion to strike Walton's expert witness on June 8, 2016, and the circuit court held a hearing on the matter on August 4, 2016.
During the hearing, the court inquired into the circumstances of Walton's designation, whether he intended to call Kivitz as a rebuttal witness only, and the reason Walton's attorney had not included all of the information required under Md. Rule4 2-402(g)5 with the designation. The court gleaned primarily two arguments made by Walton's attorney in response to its inquiries and noted the following:
I've been the discovery judge here for a while. And so I'm not big about pointing and saying[,] but his stuff didn't have the same information. This is here on the motion that has been filed with respect to Mr. Kibitz. And whether in fact you had violated the scheduling order by not identifying this expert on time and by not providing the information that is required under 2-402. Your response to that is, he's a rebuttal witness. I think that's what you're telling me. Although you did use his affidavit, or report, or something on a Motion for Summary Judgment[.] [ . . . ] And then B) . . . you're saying to me, I think, that Judge, the Defendants, when they identified their experts, they didn't comply with 2-402. Well, that other argument is a little too late, because you didn't file a motion with respect to that.
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The court went on to consider various factors in determining whether to grant the motion to strike Walton's expert witness, including the prejudice to the Defendants in permitting the rebuttal witness to testify in Walton's case in chief, how to cure the prejudice caused by the delay, the importance of the expert's testimony, whether there was any bad faith on Walton's behalf, among other relevant facts. Ultimately, the court denied the motion to strike, explaining, "I am going to deny the Motion to Strike the Plaintiff's expert witness designation and I am permit[ing] the Defendants to depose Plaintiff's expert, Mark Kibitz, at a mutually agreed upon time and location prior to August 29th of 2016." At the end of the hearing, Logan's attorney asked the court to clarify whether the expert's testimony would be limited to rebuttal only. The court indicated that it was denying the motion to strike with the understanding that Walton was calling the witness only as rebuttal and that the order would therefore include language to that effect.
On June 23, 2016, which was prior to the hearing on Logan's motion to strike Walton's expert witness, Walton filed a consent motion to modify the scheduling order. In it, he requested, "to the extent that it may be necessary, to modify the scheduling order solely to extend the time by which to provide expert reports and to depose experts."6 On August 29, 2016, the circuit court held a hearing on the motion, during which the circuit court asked Walton's attorney, numerous times, why he had not requested an extension of the deadline to designate an expert for his case in chief prior to the deadline to do so.
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After hearing the arguments of both parties during a lengthy conference at the bench,7 the court gave the following order:
I'm denying the request to modify the scheduling order. The request, which was filed on June 23rd, is requesting me to modify something that ended back in January. And the case has proceeded along under the current scheduling order and I [cannot], at this point, modify something that ended in January. There is prejudice to the Defendants. And so I'm denying the request for modification and the case will proceed to trial . . . September 22nd.
On July 8, 2016, Walton and Logan both filed motions for summary judgment. Walton attached to his motion his rebuttal expert's report. At the hearing on September 16, 2016, which focused primarily on Logan's summary judgment motion, Walton's primary argument was that the trial could proceed without an expert for Walton's case in chief because Logan's alleged malpractice was so obvious that expert testimony was unnecessary. The court took the arguments under advisement and, on September 21, 2016, granted summary judgment in favor of Logan and James R. Logan, P.A. In its written opinion and order, the court explained its rationale:
In argument before me, counsel for the Plaintiff proffered . . . he intended to adduce evidence concerning such things as the Defendant's performance at a "341" hearing, in filling our various schedules required by federal bankruptcy laws, and the difference between and effects of proceeding under Chapter 7 and 11 of the federal bankruptcy laws. Not withstanding the esoteric nature of such matters...
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