Wooddy v. Mudd

• Decision Date: 13 May 1970
• Docket Number: No. 389,389
• Citation: 265 A.2d 458,258 Md. 234
• Parties: Louise Rossiter WOODDY v. F. DeSales MUDD.
• Court: Maryland Court of Appeals

Page 234

258 Md. 234

265 A.2d 458

Louise Rossiter WOODDY v. F. DeSales MUDD.

No. 389.

Court of Appeals of Maryland.

May 13, 1970.

[265 A.2d 459] Edward J. Skeens, Silver Hill, for appellant.

Charles E. Channing, Jr., Upper Marlboro (James P. Salmon and Sasscer, Clagett, Powers & Channing, Upper Marlboro, and M. Wayne Munday, La Plata, on the brief), for appellee.

Before HAMMOND, C. J., and BARNES, McWILLIAMS, SINGLEY and SMITH, JJ.

SMITH, Judge.

The appellant, Louise Rossiter Wooddy, sued her former attorney alleging 'breach of professional ethics, malpractice, negligence, (and) conflict of interest'. A jury returned a verdict in favor of the attorney, F. DeSales Mudd, the appellee.

Mrs. Wooddy in her appeal raises a number of questions which we shall not be obliged to answer for in Rippon v. Mercantile-Safe Deposit & Trust Co., 213 Md. 215, 131 A.2d 695 '(T)his Court has frequently held that in the interest of the orderly administration of justice and to avoid useless expense to litigants, it is the policy of this Court not to reverse for harmless error, and the burden is on the appellant in all cases to show prejudice as well as error. Sieland v. Gallo, 194 Md. 282, 71 A.2d 45; Balto. Transit Co. v. (State for Use of) Castranda, 194 Md. 421, 71 A.2d 442.' Id. at 222, 131 A.2d at 698.

(1957), Judge (later Chief Judge) Prescott said for this Court:

A motion for a directed verdict was filed on behalf of Mudd at the end of all of the evidence. The trial judge (Bowen, J.) reserved decision pursuant to Maryland Rule 552 c. After the jury's verdict he announced that were he to rule he would have granted the motion. We conclude that this motion should have been granted. Accordingly, if there is error on any of the points raised, it is not prejudicial error. We, therefore, shall affirm the judgment of the trial court and it becomes necessary to discuss only the issues presented by that motion.

In Maryland Casualty Co. v. Price, 231 F. 397 (4th Cir. 1916), it is said:

'In a suit against an attorney for negligence, the plaintiff must prove three things in order to recover: (1) The attorney's employment; (2) his neglect of a reasonable duty; and (3) that such negligence resulted in and was the proximate cause of loss to the client.' Id. at 401.

This statement has been quoted by many authorities and was quoted by this Court in Kendall v. Rogers, 181 Md. 606, 611-612, 31 A.2d 312 (1943).

In Niosi v. Aiello, 69 A.2d 57 (Mun.Ct.App.D.C.1949), the court said:

'The rule to be applied in a case where an attorney is accused of negligence in the conduct The court then went on to quote from Maryland Casualty Co. v. Price, supra, describing the portion of the opinion quoted above as a succinct statement of the rule. See also Oda v. Highway Insurance Company, 44 Ill.App.2d 235, 194 N.E.2d 489, 497 (1963); Getchell & Martin Lumber Mfg. Co. v. Employers' Liability Assur. Corp., Ltd., 117 Iowa 180, 90 N.W. 616, 62 L.R.A. 617 (1902); McLellan v. Fuller, 226 Mass. 374, 115 N.E. 481 (1917); Annot.: 45 A.L.R.2d 5 (1956), entitled 'Attorney's liability for negligence in preparing or conducting litigation', §§ 5-8; 7 Am.Jur.2d Attorneys at Law, § 188 (1963); 7 C.J.S. Attorney and Client § 146 (1937); and 2 Poe, Pleading and Practice (Tiffany's Ed.1925), § 30. The latter states:

of litigation is that such attorney is not liable for negligence if, notwithstanding the negligence, the client had no cause of action or meritorious defense as the case may be; or that if conduct of an attorney with respect to litigation results in no damage to his client the attorney is not liable. Unless a party has a good cause of action against the party proposed to be sued, the first party loses nothing by the conduct of his attorney even though the latter were guilty of gross negligence.' Id. at 60.

'For any misconduct of attorneys by which pecuniary injury is occasioned to clients, they are responsible in a civil action for damages commensurate to the injury, and they are liable also for the want to such skill, care and diligence as men of the legal profession commonly possess and exercise in such matters of professional employment; but for errors of judgment honestly committed they are not liable, even though such errors be attended with loss to the client. Their undertaking is that they will well and faithfully, with reasonable diligence, and to the best of their skill and ability, perform their duty; See also §§ 31-32 and Cochrane v. Little, 71 Md. 323, 331-332, 18 A. 698 (1889).

and their civil liability is accordingly restricted to cases of fraud, negligence and positive misconduct.'

With that background of the law, we turn to the facts. Unfortunate disagreements had arisen between Mrs. Wooddy and her husband, Dr. Arthur Overton Woodddy. ¹ Mrs. Wooddy retained Mr. Mudd to represent her. Dr. an Mrs. Wooddy had been living apart under the same roof for some time prior to the time Mrs. Wooddy first consulted Mr. Mudd in February of 1965. When efforts to reach a settlement between the parties failed, Mr. Mudd filed a bill of complaint on behalf of Mrs. Wooddy based upon constructive desertion by virtue of her husband's alleged physical abuse. This was filed on June 28, 1965. The husband countered with a cross bill on his own behalf based upon desertion. After trial a decree was passed on October 18, 1966, granting the husband a divorce a vinculo matrimonii from the wife on the ground of her desertion.

Stripped of all the excess verbiage, which in another setting might be called 'salesman's 'puffing", the contentions of Mrs. Wooddy may be summarized as four in number, namely (1) the divorce suit should have been on the ground of adultery and Mr. Mudd was negligent in not bringing the action on that ground; (2) Mr. Mudd negligently examined title to the Jarwood Clinic property and negligently advised Mrs. Wooddy that she and Dr. Wooddy owned an undivided one-half interest in the property as tenants by the entireties when the half interest was in fact owned solely by Dr. Wooddy, the contention being that if Mrs. Wooddy had known this the divorce action would have been based upon adultery; (3) there was a conflict of interest in that Mr. Mudd was chairman of the advisory board and attorney for the La Plata We shall examine each of the contentions of Mrs. Wooddy reciting such additional facts as may be necessary. All of the facts are examined bearing in mind that the evidence and all logical and reasonable inferences deducible therefrom must be considered in a light most favorable to the appellant. Ackerhalt v. Hanline Brothers, 253 Md. 13, 14, 252 A.2d 1 (1969).

branch of Maryland National Bank and while so connected permitted Mrs. Wooddy to sign papers by which a small part of the Jarwood Clinic property was conveyed to a corporation which in turn leased to Maryland National Bank, Mrs. Wooddy receiving one-fourth of the stock. of the corporation; and (4) Mr. Mudd was guilty of a conflict of interest in that he executed an affidavit as to the bona fides of the consideration as agent for Suburban Trust Company in a $360,000.00 deed of trust from corporations in which Dr. and Mrs. Wooddy had an interest and at the same time advised Mrs. Wooddy to personally endorse a note pursuant to the original loan commitment. It was contended that the latter two transactions should have been used to effectuate a desired settlement.

DIVORCE ACTION

The evidence presented by Mrs. Wooddy as to the negligence of Mr. Mudd in not bringing a divorce action on the ground of adultery fell far short of establishing that there was a sound basis for charging Dr. Wooddy with adultery.

Under the provisions of Code (1965 Repl.Vol.), Art. 35, § 9 Mr. Mudd was called as an adverse witness. Mrs. Wooddy was bound by his testimony unless it was contradicted. Lusby v. Nethken, 256 Md. 469, 476, 260 A.2d 640 (1970); First Nat'l Realty v. State Roads Comm., 255 Md. 605, 615-616, 258 A.2d 419 (1966); Larsen v. Romeo, 254 Md. 220, 225, 255 A.2d 387 (1969); and Williams v. Wheeler, 252 Md. 75, 249 A.2d 104 (1969).

Mr. Mudd said, 'Well, I informed her, I am sure, that on the basis of the facts she gave me, the only ground she had was constructive desertion.' He went on to say In the trial of this case three women were mentioned with whom Dr. Wooddy was alleged to have been involved. With reference to one, Mrs. Wooddy admitted that she had no evidence other than Dr. Wooddy's admission. On cross-examination she said relative to that woman, '(I)t was a known fact between Mr. Mudd and myself that this was something that we probably would not be able to prove' Mr. Mudd testified that when this woman's name was presented to him he immediately took the deposition of Dr. Wooddy. There came into this record Dr. Wooddy's statement at the deposition that he at no time ever had had sexual intercourse with a woman other than his wife and that he had not informed his wife that he had committed adultery with any woman.

that he 'thought that she had a fair chance [265 A.2d 462] of obtaining a divorce', and that he was instructed to endeavor to obtain a property settlement agreement, along with a conversion of the separation into a voluntary separation which would create a ground for divorce 18 months later. He said that he attempted to do this up to the time the suit was filed and 'even after the suit', he 'guess(ed)'.

The second woman named was a hospital technician who occupied an apartment in the same apartment house in which Dr. Wooddy resided after he moved out of the Wooddy home. Testimony relative to this young lady came solely through Mr. Mudd. It was alleged that Mrs. Wooddy repeated to him that the then seven-year-old son of Dr. and Mrs. Wooddy had reported to his mother that when he visited with his father Dr. Wooddy and this young lady had one or more meals together. According to the testimony, Dr. Wooddy moved into this apartment house in September of 1965. Mr. Mudd said...