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Charles R. Dashiell, Jr., et al. v. Charles E. Meeks, Jr. No. 27, September Term, 2006 Headnote: There is no requirement that an appellate court must consider portions of the record from a prior case that it has ordered to be obtained as a supplement to the record in a subsequent case. The Court of Special Appeals did not abuse its discretion by doing exactly that in this case. In so holding, we affirm the judgment of the Court of Special Appeals that: (1) the Circuit Court for Wicomico County erred as a matter of law in finding that Meeks's claim was barred by the statute of limitations; (2) the Circuit Court for Wicomico County, in a summary judgment context, did not abuse its discretion in denying Dashiell's motion based on judicial estoppel grounds; and (3) upon remand Dashiell is free to assert the claims of limitations, judicial estoppel, and any other defenses upon remand.

Circuit Co urt for W icomico C ounty Case No.: 22-C-03-001343

IN THE COURT OF APPEALS OF MARYLAND No. 27 September Term, 2006

Charle s R. Da shiell, Jr., et al. v. Charles E. M eeks, Jr.

Bell, C. J. Raker Wilner Cathell Harrell Battaglia Greene, JJ.

Opinion by Cathell, J. Harrell, J., Diss ents

Filed: December 14, 2006

This instant case arises from an attorney malpractice claim filed by Charles E. Meeks, Jr. ("Meeks"), respondent, against Charles E. Dashiell, Jr., Esquire ("Dashiell"), petitioner.1 In 1989, Meeks asked Dashiell to draft a prenuptial agreement to protect his family business in the event that his upcoming marriage to Melanie Davis ("Davis") did not last. According to Meeks, the initial draft that Dashiell reviewed with him contained a waiver of alimony provision, but the version ultimately signed by Meeks and Davis failed to contain such a provision. Meeks asserted that, at the earliest, he did not learn of this discrepancy until he separated from his wife on May 10, 2001. During divorce proceedings before the Circuit Court for Worcester County (held prior to the instant Wicomico County case), he asked that court to grant Davis rehabilitative alimony. Meeks also sought to have the divorce court declare the prenuptial agreement enforceable as executed. That court granted Meeks's request to pay Davis rehabilitative alimony in addition to granting his motion seeking to enforce the prenuptial agreement. On October 24, 2003, Meeks sued Dashiell in the Circuit Court for Wicomico County alleging that Dashiell was negligent in omitting the alimony waiver provision from the prenuptial agreement and counseling Meeks to sign the prenuptial agreement without reading it. Dashiell moved to dismiss the complaint or, alternatively, for summary judgment on the grounds that the malpractice claim was barred by judicial estoppel or barred by the three-year statute of limitations. On May 14, 2004, the trial judge, treating the motion as a

Meeks also filed suit against Dashiell's law firm, Hearne & Bailey, P.A. B oth Dash iell and H earne & Bailey, P.A . will be c ollective ly referred to herein as "Da shiell."

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motion for summary judgment, ruled that judicial estoppel did not bar the claim, but that the statute of limitations expired three years after Meeks signed the agreement. Meeks appealing to the Court of Special Appeals, argued that the trial court erred by not applying the discovery rule.2 Dashiell argued that the claim was barred by the statute of limitations and, alternatively, that the trial court erred by not finding that the claim was barred by judicial estoppel. The appeal initially was heard by a three judge panel and then by the Court of Special Appeals sitting en banc. After argument and on its own motion, but prior to ruling on the issues before it, the Court of Special Appeals ordered that the entire record from the prior divorce proceedings in the Circuit Court for Worcester County, to include the transcripts of the hearing in the divorce case regarding the enforcement of the prenuptial agreement, be delivered to the Court of Special Appeals. The intermediate appellate court, however, after having obtained that record did not consider it and based solely on the record in the Wicomico County case, found that the trial court erred in ruling as a matter of law that the malpractice claim was barred by the statute of limitations. 3 The Court of Special Appeals declined to rule on the trial court's finding with respect to judicial estoppel. The Court of Special Appeals vacated the judgment of the Circuit Court for
The discovery rule tolls the running of the statute of limitations until the potential plaintiff discov ers or sh ould ha ve disc overed the alleg ed injur y, Frederick Road Ltd. Partnersh ip v. Brown & Sturm , 360 Md. 76, 95, 756 A.2d 963, 973 (2000). We discuss the rule in more detail below. The dissent argued that the court should have considered the record from the divorce case. Meeks v . Dashiell , 166 Md. App. 415, 890 A.2d 779 (2006) (Deborah E yler, J. dissenting).
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Wicomico County and remanded the matter to that court for further proceedings. Meeks v. Dashiell, 166 Md. App. 415, 890 A.2d 779 (2006). Dashiell filed a petition for writ of certorari, which this Court granted on June 14, 2006. Meeks v. Dashiell, 393 Md. 245, 900 A.2d 751 (2006). Dashiell presented one question for our review: "Should an appellate court consider on its review portions of the record the appellate court ordered be obtained and supplemented into the record?" We hold that there is no requirement that an appellate court must consider portions of the record from a prior case that it has ordered to be obtained as a supplement to the record in a subsequent case and that the Court of Special Appeals did not abuse its discretion by doing exactly that in this case. In so holding, we affirm the judgment of the Court of Special Appeals that: (1) the Circuit Court for Wicomico County erred as a matter of law in finding that Meeks's claim was barred by the statute of limitations; (2) the Circuit Court for Wicomico County, in a summary judgment context, did not abuse its discretion in denying Dashiell's motion based on judicial estoppel grounds; and (3) upon remand, in addition to any other defenses he may have, Dashiell is free to assert the claim of judicial estoppel if that claim is supported by a more fully developed record in the trial court as the case progresses. I. Facts
On October 24, 2003 , Meeks filed a com plaint in the C ircuit Court for Wicomico County alleging that Dashiell was negligent for omitting the waiver of alimony provision from a prenuptial agreement he was employed to draft and for assuring Meeks that there was no need to read the prenuptial agreement b efore sign ing it when Dashiell kn ew or sho uld

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have known that the agreement did not contain a waiver of alimony provision. Meeks had retained Dashiell to d raft a prenuptial agreement between, his ex-wife, Davis and himself. Meeks and Davis signed the agreement on or about November 3, 1989, and were married on November 4, 1989. The original draft of the agreement allegedly contained a waiver of alimony provision, but the final agreement executed by Meeks and Davis did not contain that provision. Meeks further alleged that Dashiell told him there was no need to read the agreement before sig ning it. He also claimed that he did not know that the waiver of alimony provision was missing until, as a result of his separation from his wife on May 10, 2001, he finally read the p renuptial ag reement. After separating from Davis and learning of the missing waiver of alimony provision, Meeks filed for absolute divorce in the Circuit Court for Worcester County on February 7, 2002. In his complaint for divorce, he asked that his wife be granted rehabilitative alimony and the divorce court granted the request. On July 11, 2002 , Meeks filed a M otion to Enforce the Antenuptial Agreement he signed which the divorce court granted on October 28, 2002. On June 11, 2003, the Circuit Court for Worcester County entered a judgment for absolute divorce. Su bsequen tly, Meeks filed the above described malpractice claim on October 24, 2003. The Co urt of Spe cial Appe als summ arized wh at happen ed next: "No answer was filed in the case. Instead, Dashiell's initial response to Meeks's complaint was a motion entitled `Motion to Dismiss, or in the alternative, Motion for Summary Judgment.' Because the motion relied upon three attached ex hibits that we re not part of the comp laint, we sha ll treat

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Dashiell's motion as a motion for summary judgm ent. See Maryland R ule 2322(c). "In the motion for summar y judgment, Dashiell asserted that `the material facts in this case are undisputed and judgment should be entered for the Defend ants as a matter of law.' The motion set forth three alternative bases for entering jud gment fo r Dashiell: `[1 ] The Plain tiff's claim is barred under the doctrine of judicial estoppel. [2] The Plaintiff's claim is also barred under the applicab le statute of limitations. [3] The Plaintiff's cause of action fails sinc e the D efend ants did not cau se the all eged d amag es.' ... "In Dashiell's supporting memorandu m, he emphasize d that Meeks's Complaint for Divorce , filed in the Worcester County divorce action, included as one of its several prayers for relief a request that Davis `be award ed rehabilitative alimony.' Dashiell further emphasized that, in the divorce action, Meeks had filed a motion asking the Circuit Court for Worcester County to enforce the antenuptial agreemen t dated Novem ber 3, 1989. There was no mention in Meeks's motion of any dissatisfaction on his part with the terms of that agreement. Th e docket entries from the divorce action reflect that after Meeks filed the motion to enforce the prenuptia l agreement, the Circuit Court for Worcester County conducted a hearing and granted the motion. The docket entry for June 11, 2003, states: `Court finds the Antenuptial Agreem ent to be a v alid agreem ent, and G rants the M otion to Enfo rce the A ntenup tial Agr eemen t.' ... "At the hearing on Dashiell's motion for summary judgment, the motion judge took issue with Dashiell's contention that M eeks wa s attempting to pursue a remedy in the malpractice action that was clea rly inconsistent w ith Meeks 's successf ul efforts to enforce the prenuptial agreement, as executed, in the Worcester Co unty divorce action. The follow ing colloquy appears in the transcript from the hearing on Dash iell's motion f or summ ary judgmen t: [COU NSEL F OR DA SHIELL ]: In this court he says [the prenu ptial agreem ent] wasn 't my deal. THE COU RT: No , wait a minute. understan d why his po sition is incons istent. But I don't

[COUNSEL FOR D ASHIE LL]: It's inconsistent, Your Honor, because in Worcester County he says to the Court in h is

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motion to e nforce the settlement, this w as my agreem ent. THE COU RT: He said I entered into a contract, and the contract did n ot provid e for a wa iver of al imony. [. . .] [COUNSEL FOR DASH IELL]: And he says to the Court, Judge, in Worcester County, this is my deal, specific ally enforce it, honor it, meaning that it's the full and final agreeme nt of the pa rties. It's everything th at

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