Woods v. Kerpelman
| Decision Date | 20 October 2016 |
| Docket Number | No. 1972,1972 |
| Parties | NATASHIA WOODS v. SAUL E. KERPELMAN, ET AL. |
| Court | Court of Special Appeals of Maryland |
UNREPORTED
Eyler, Deborah S., Graeff, Raker, Irma S. (Senior Judge, Specially Assigned), JJ.
Opinion by Eyler, Deborah S., 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.
In the Circuit Court for Baltimore City, Natashia Woods ("Natashia"), the appellant, sued Saul E. Kerpelman, Saul E. Kerpelman & Associates, P.A., and Brian Stuart Brown, Esq., a principal in the firm (collectively "Kerpelman"), the appellees, for legal malpractice arising out of Kerpelman's handling of two lead paint lawsuits. Kerpelman moved to dismiss on the ground that the action was time-barred. After hearing argument, the circuit court granted the motion.
On appeal, Natashia presents three questions for review, which we have combined and rephrased as two:
For the following reasons, we answer the first question in the affirmative and shall reverse the judgment of the circuit court and remand for further proceedings. Our disposition of the first question makes it unnecessary to address the second.
Because Natashia appeals from the grant of a motion to dismiss, we recite the facts as alleged in her first amended complaint. There were no factual findings below, and, of course, we do not make factual findings.
Natashia was born on July 22, 1982. In 1986, her mother, Annette Woods ("Annette"), hired Kerpelman to pursue a claim against Kenneth Mumaw, her formerlandlord, for injuries Natashia sustained from exposure to lead paint at the rental property. On December 9, 1986, through Kerpelman, Annette, as next friend of Natashia, filed a lead paint premises liability suit against Mumaw, in the Circuit Court for Baltimore City ("1986 Lead Paint Case"). Natashia Woods v. Kenneth B. Mumaw, et al
., Case No. 24-C-86-343014.1 In interrogatories Kerpelman propounded to Mumaw in that case, Mumaw was asked whether he had liability insurance for the alleged injuries. Mumaw did not respond to the interrogatories.
In 1988, Kerpelman advised Annette to settle Natashia's claim against Mumaw for $1,000. Annette followed this advice and, on November 1, 1988, entered into a settlement agreement on behalf of Natashia for that amount. The settlement agreement did not include a provision that would render it void upon the discovery of available insurance coverage or other undisclosed assets. As part of the settlement, judgment was entered in favor of Annette, on behalf of Natashia, against Mumaw, for $1,000. The judgment was satisfied in 1989.
In 2003, Natashia, then 20 years old, hired Kerpelman to sue Mumaw and other landlord defendants for injuries she had suffered as a result of ingesting lead-based paint at properties in which she had lived as a child in Baltimore City. The property owned byMumaw was the same property at issue in the 1986 Lead Paint Case. Natashia had no knowledge of that case, however. By then, Kerpelman knew that Mumaw in fact had liability insurance coverage for the period of time relevant to Natashia's lead paint claim. Kerpelman did not tell Natashia about the 1986 Lead Paint Case or the settlement of that case.
On June 24, 2003, through Kerpelman, Natashia filed suit in the Circuit Court for Baltimore City against Mumaw and seven other individuals, estates, and entities, alleging that she had suffered injuries as a result of ingesting lead-based paint while residing at the properties they owned ("2003 Lead Paint Case"). Natashia Woods v. Baltimore 132 P'Ship et al
, Case No. 24-C-03-004574. In September 2003, Mumaw filed an answer to the complaint. He did not raise the affirmative defense of res judicata. A May 3, 2005 trial date was scheduled.
On April 4, 2005, Mumaw filed a motion to dismiss Natashia's claim against him on the ground of res judicata, based on the judgment entered in the 1986 Lead Paint Case. At that point, "for the first time," Mr. Kerpelman told Natashia about that case and the $1,000 settlement that had been reached in 1988. He advised her that Mumaw's motion to dismiss would be denied because he had waived the defense of res judicata by failing to raise it in his answer. Kerpelman filed an opposition to the motion to dismiss on that basis.
Also on April 13, 2005, Kerpelman filed a motion to revise in the 1986 Lead Paint Case, under Rule 2-535(b), seeking to set aside the judgment for fraud, mistake, orirregularity. In a supporting affidavit, Mr. Kerpelman attested that Mumaw had not responded to the interrogatories propounded to him; it had been his (Mr. Kerpelman's) practice "not to entertain settlement negotiations for any case until [he] was satisfied as to the existence, or lack thereof, of any insurance coverage which may be available to cover client's claims against a defendant"; he would "never [have] settle[d] a claim for the sum of $1,000, unless it had been represented to [him] that there was no insurance"; for that reason, he was "sure that [he] was told, either by [Mumaw or his counsel] that there was no insurance to cover [Natashia's claim]"; and he had since learned from Mumaw's current counsel that there "is insurance coverage for [Natashia's claim]." Kerpelman asserted that he had been "falsely induced" into settling the 1986 Lead Paint Case for "an amount far less than its actual value." On June 6, 2005, the circuit court entered an order denying the motion to revise. No appeal was taken from that order.
Meanwhile, in the 2003 Lead Paint Case, Kerpelman, Mumaw's counsel, and counsel for the other defendants jointly requested a postponement of the May 3, 2005 trial date. The court obliged, and the trial was postponed to September 21, 2005. On May 4, 2005, Mumaw filed an amended answer raising res judicata as an affirmative defense. See Md. Rule 2-341 (2004) (). Kerpelman advised Natashia that it was too late for Mumaw to file an amended answer. Kerpelman filed a motion to strike the amended answer on that basis.
On May 20, 2005, the circuit court heard argument on Kerpelman's motion to strike Mumaw's amended answer and Mumaw's motion to dismiss. It held both motions sub curia. On August 30, 2005, the court entered an order denying Kerpelman's motion to strike the amended answer and granting Mumaw's motion to dismiss. Kerpelman advised Natashia that he would note an appeal from that order when there was a final judgment resolving all of the claims against all of the defendants, and that the court's grant of Mumaw's motion to dismiss would be "vacated on appeal."
A month after the court dismissed Natashia's claim against Mumaw, it sent a hearing notice for the September 21, 2005 trial date. Two days later, it issued an order approving a request for postponement of that trial date until February 7, 2006. Trial did not take place on that date. In May 2007, the court issued a notice of contemplated dismissal pursuant to Rule 2-507(c).2 Kerpelman successfully moved to defer dismissal until December 31, 2008. In August 2008 and March 2009, the court again deferred dismissal of the case under Rule 2-507(c). Also at this time, Kerpelman was representing Natashia's younger brother in a lead paint case against Mumaw involving the same property during the same timeframe. In 2009, Kerpelman advised Natashia that her brother's lawsuit had been settled for $450,000 and that Mumaw's insurance carrier had paid the entire settlement.
On April 13, 2010, there having been no activity in the 2003 Lead Paint Case for yet another 12 months, the court dismissed all of Natashia's remaining claims for lack of prosecution. During the almost five year period from the entry of the order dismissing Natashia's claim against Mumaw in the 2003 Lead Paint Case until the entry of the order dismissing her remaining clams in that case, Kerpelman had been telling Natashia that he was "diligently pursuing her claims against the remaining lead paint [defendants]."
Two days after all the remaining claims in the 2003 Lead Paint Case were dismissed, Natashia, through Kerpelman, noted an appeal to this Court. Kerpelman presented two issues for review: whether the circuit court erred in denying Natashia's motion to strike Mumaw's amended answer and whether the circuit court erred in granting Mumaw's motion to dismiss.
On November 1, 2012, this Court issued an unreported 9-page opinion answering both questions in the negative and affirming the judgment of the circuit court. Woods v. Baltimore 132 P'Ship et al., No. 252, Sept. Term 2010. We explained that Rule 2-341 permits parties in civil actions to amend their pleadings without leave of court up to 30 days before the trial date;3 that under subsection (c) of that rule, an amendment may seek, inter alia, to "change the nature of the action or defense"; and that any decision to permit an amendment of the pleadings lies within the discretion of the court and is rarely subject to reversal on appeal. We held that there was no abuse of discretion by the trial court inallowing Mumaw to amend his answer to add the defense of res judicata. We further held that the defense was a complete bar to Natashia's claim against Mumaw. Our mandate issued on December 3, 2012.4
On June 25, 2015, Natashia filed the instant malpractice suit against Kerpelman. In her first amended complaint, she alleged that Kerpelman...
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