Preview:

REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1697 September Term, 2002

JEFFREY SUPIK, et ux., v. BODIE, NAGLE, DOLINA, SMITH & HOBBS, P.A., et al.

Adkins, Krauser, Sharer, JJ.

Opinion by Sharer, J. Filed: October 29, 2003

In

this

legal

malpractice

case,

the

Circuit

Court

for

Baltimore County granted summary judgment in favor of appellees, ruling that the negligence claim of appellants, Jeffrey Supik and Shirley Supik, was time-barred by Maryland's three-year statute of limitations. On March 31, 2000, the Supiks filed a legal malpractice action against their former attorneys, Thomas Dolina, Michael Smith, and Kelly Koermer, and the law firm by which they were employed, Bodie, Nagle, Dolina, Smith & Hobbs, P.A.1 The Supiks had retained Bodie,

Nagle in 1993 to represent them in a toxic tort action against several pest control companies, and in an action against their homeowners' insurer regarding the terms of coverage related to the damages caused by the toxic tort. On the recommendation of Bodie,

Nagle, the Supiks settled with all of the defendants in that case. The crux of the legal malpractice case is that, after the

settlements, the Supiks came to believe that they had settled the toxic tort case against the pest control companies for less than full value. The Supiks filed a claim against appellees alleging,

among other things, professional negligence, breach of fiduciary duty, negligent misrepresentation, and fraudulent

misrepresentation. Following the completion of discovery, Bodie, Nagle moved for summary judgment on the basis that appellants knew, or reasonably
1

For the sake of clarity, we shall refer to the law firm defendants, now appellees, as "Bodie, Nagle."

should have known, about the negligent representation prior to March 31, 1997. Therefore, appellees argued that Maryland's threeyear statute of limitations on legal malpractice barred the action. The trial court agreed.2 Appellants have presented us with one question: Did the trial court err in granting the motion for summary judgment on the grounds that the statute of limitations accrued more than three years prior to the filing of appellants' complaint? We answer "Yes," because a legal cause of action did not arise until the Supiks settled the underlying tort case, as that event fixed the date of their injury. Moreover, to the extent that a cause of action might have arisen prior to the date of settlement, the question of limitations in this case is one of fact; thus, it was error for the court to grant summary judgment. FACTUAL and PROCEDURAL BACKGROUND Jeffrey and Shirley Supik, appellants, own property at 3523 and 3525 North Rolling Road in Baltimore. On March 17, 1993, the

Supiks retained Bodie, Nagle to represent them in toxic tort litigation stemming from their alleged exposure to chlordane3 that was applied on their property in 1980 and 1981. The toxic tort

We have not overlooked our opinion in Vogel v. Touhey, 151 Md. App. 682 (2003), in which we held that a litigant who had accepted a settlement of her claims was precluded from recovery, in a subsequent malpractice action against her attorney, by the doctrine of judicial estoppel. That issue was not raised in this case, either at the circuit court or on appeal.
3

2

A synthetic toxic compound used in pesticides.

-2-

litigation, filed August 5, 1994, involved claims against two companies, B&B Exterminators, Inc. and its successor in interest, Home Paramount Pest Control Company. The Supiks also sued their homeowners' insurer, American Insurance Company (a subsidiary of Fireman's Fund Insurance Company), as a result of a dispute about the extent of coverage provided by their policy. Most of Bodie, Nagle's representation of the Supiks occurred in 1995, 1996, and early 1997. Throughout the representation, the

Supiks relied on the advice of Bodie, Nagle pursuant to the fiduciary attorney-client relationship. There is no dispute that

the Supiks often questioned certain advice given by Bodie, Nagle, but they nonetheless agreed to follow the advice, because they presumed that the lawyers knew best, as discussed infra. Among the more significant controversies between the Supiks and Bodie, Nagle were (1) the attorneys' several attempts to settle the case without informing the Supiks, misinforming the Supiks regarding settlement, and/or botched settlement efforts, and (2) Bodie, Nagle's waiver of the Supiks' right to trial by jury over their objection and without their consent.4 An array of events occurred which the parties have addressed in their briefs, highlighting the imperfect attorney-client

relationship.

The Supiks assert:

In support of its motion for summary judgment, Bodie, Nagle relied primarily on those particular events.

4

-3-

(a) that the Appellees requested that Appellants keep a journal describing what had happened to them during the time they were exposed to Chlordane and that, despite representations by the Appellees that the journal would be kept confidential, the journal was turned over to defense counsel [and ultimately used to cross-examine appellants during depositions]; (b) [in regard to appellants' likelihood of prevailing against their homeowner insurer] a dispute between the Appellees and the Appellants arose in connection with the extent of coverage for property loss under their homeowners' policy for compensation related to Chlordane exposure. Appellants believed they had full replacement value whereas Appellees believed the policy provided for fair market compensation for property loss. [Appellants were never able to convince appellees, and they felt as though they should have been able to settle for more than $22,000.] (c) that one of the Appellees, Kelly Koermer, represented to Appellants that a demand could be made upon the homeowner[s'] insurer in the amount of $450,000.00 [in 1995], when later [in 1996] it was learned by Appellants that the settlement demand had actually been made as to all the defendants in the Toxic Tort Case, and not just simply the homeowner[s'] insurer defendant, American Insurance Company. (d) that in the latter part of 1996, Appellee, Thomas Dolina, advised Appellants that he did not believe they would prevail on the multiple chemical sensitivity claims they were asserting. Although Appellants did not agree with Mr. Dolina's assessment, they agreed to drop their multiple chemical sensitivity claim. (e) that Mr. Dolina advised Appellants he was concerned they would lose their psychological claim for damages in the case if it were to proceed to trial. This upset Mr. Supik who was concerned that the Appellants were -4-

adopting the defense spin that the Appellants suffered pre-existing psychological conditions. [Appellants felt that Dolina was not giving accurate information in this regard.] (f) that Mr. Dolina made a demand on behalf of the Appellants in the amount of $550,000.00 [in December 1996] which they had not authorized and which upset them when they learned about it. (g) that Mr. Dolina advised Appellants that, in his opinion, Appellants' case had an approximate settlement value of $300,000.00 Mr. Supik disagreed with that assessment but did not discuss the issue with any of the Appellees. [Although, appellee Kelly Koermer had "often said don't worry about it, that's Tom, he always deals with the case as a devil's advocate."] (h) that as of January 2, 1997, Appellants did not believe they had sufficient information to consider the possibility of any settlement discussions, despite Mr. Dolina's desire to discuss settlement with the homeowners' insurer. (i) that on January 6, 1997, Mr. Dolina wrote to Appellants advising that he was considering converting the case from a jury trial to a bench trial. Appellants were unhappy with Mr. Dolina's recommendation to convert their case [as] is reflected in a letter dated January 14, 1997. (j) that Appellants later learned that Mr. Dolina had, despite their objection, converted the case to non-jury. This angered Appellants, who demanded that Mr. Dolina reverse his actions and change the case back to a jury trial because they believed they had a better chance of success if the case were heard by a jury. (k) that Appellees represented to Appellants that they had received an estimate from -5-

someone willing to demolish of the two contaminated $9,500.00. The Appellees, provide Appellants with estimate despite repeated requests for same.

or dispose of one properties for however, did not copies of that written and oral

(l) that on March 7, 1997, the Appellants reluctantly agreed to settle their claim with the homeowner[s'] insurer for $22,000.00 despite their strong desire not to settle the claim. Appellants depict their decision to settle the Homeowners' Case as being made under duress. (m) that following their settlement of the Homeowners' Case, Appellants and the Appellees continued their efforts to prepare for the Toxic Tort Case against B&B and Home Paramount [scheduled for April 1, 1997]. The Appellants expressed concerns as to the method by which they were being prepared [in a March 19, 1997, letter to Mr. Dolina]. (n) that throughout the years 1996 and 1997, Appellants made numerous requests for copies of the reports and depositions generated in their case so they would be able to evaluate any settlement offers conveyed and have a better understanding as to the extent of their health conditions and the extent of any contamination to their persons and property. Such requests were made verbally and in writing, although Appellants did not receive all the requested documents until sometime after December of 2000. The essence of the Supik's malpractice action is that they settled the toxic tort case against the pest control companies for less than full value.5 Unknown to the Supiks, the attorneys had

The Supiks settled first with their homeowners' insurer on March 7, 1997, for $22,000. The Supiks, however, felt that they were under "duress" to settle, or otherwise "forced" to settle, by appellee Dolina. Nonetheless, they agreed to the settlement. Their malpractice claim is not based on the settlement with their homeowners' insurer. They did not raise this issue in their complaint

5

-6-

relied on remediation estimates from the pest control companies without seeking an independent estimate from an expert of their own choosing. The settlement with B&B Exterminators, Inc. and Home

Paramount Pest Control Company occurred on April 1, 1997, and was placed on the record in open court on April 3, 1997.6 In early May 1997, the Supiks spoke with one of the experts who had planned to testify on their behalf had their case gone to trial. They learned from him that they had made a "major mistake"

by settling the toxic tort case for $175,000 because, in the expert's view, the claim had a much higher value.7 As a result of

this information, the Supiks sent a letter to Bodie, Nagle on May 6, 1997, seeking to repudiate the agreement. Bodie, Nagle informed the Supiks that they could not repudiate the settlement agreement, but the Supiks insisted otherwise. Bodie, Nagle then moved to

strike their appearance as counsel for the Supiks, which the court granted on July 8, 1997. The Supiks persisted in their efforts to repudiate the

settlement agreement by filing, pro se, motions in the circuit court. They were unsuccessful and appealed the circuit court's

against Bodie, Nagle, other than footnoting the issue for general background purposes. The settlement was memorialized in a Settlement Agreement and Release on May 21, 1997. In disbursement of the settlement proceeds, the Supiks received a net of $56,791.88. See Supik, et ux, v. B&B Exterminators, Inc., et al, No. 72, Sept. Term, 1998, slip op. at 3 (Md. Ct. Spec. App., Oct. 22, 1, cert. denied , 352 Md. 619 (1999).
7 6

-7-

denial of their motion to vacate the judgment to this Court in 1998. In an unreported opinion, we held that the trial court had enforced the settlement agreement. Supik v. B&B

properly

Exterminators, Inc., No. 72, Sept. Term, 1988 (Md. Ct. Spec. App., Oct. 22, 1998), cert. denied, 352 Md. 619 (1999). On March 31, 2000, the Supiks, again acting pro se, filed a sixteen-count legal malpractice complaint against Bodie, Nagle, which answered on May 2, 2001, raising an affirmative defense of statute of limitations, in addition to other defenses, and a general denial of the facts alleged. September 9, 2002. After the conclusion of discovery, Bodie, Nagle moved for summary judgment on the grounds that the Supiks knew, or reasonably should have known, about their negligent representation prior to March 31, 1997. The trial court, although expressing some A trial date was set for

reluctance, granted summary judgment, ruling that the Supiks were legally put on inquiry notice prior to March 31, 1997 (the day prior to the effect of the settlement agreement with the tort defendants). In finding that the Supiks had been put on notice (or that a reasonable person in their position would have been put on notice), the circuit court relied primarily on the fact that they felt under "duress" to settle the claim against their homeowners' insurer for $22,000, as of March 7, 1997; in essence missing the three-year

-8-

statute of limitations deadline by twenty-four days.

The court

opined that it was that event, not the later settlement with the tort defendants, that put the Supiks on notice. The Supiks subsequently retained counsel and have noted a timely appeal to this Court. STANDARD of REVIEW At the summary judgment stage, a trial court's function "is to determine whether there is a [genuine] dispute as to any material fact sufficient to require an issue to be tried." Frederick Rd.

Ltd. P'ship v. Brown & Sturm, 360 Md. 76, 93 (2000) (citations omitted); see also Md. Rule 2-501(e) (2003); Murphy v. Merzbacher, 346 Md. 525 (1997). Accordingly, our review on appeal requires us

to determine whether a genuine dispute of material fact existed, and if the trial court was legally correct. 360 Md. at 93. Frederick Rd, supra,

Summary judgment is not a substitute for trial;

rather it is applied to dispose of cases when no genuine dispute of material fact exists. Okwa v. Harper, 360 Md. 161, 178 (2000). A

trial court, in granting a motion for summary judgment, is limited to ruling on matters of law, and may not resolve factual disputes. Id. (citation omitted). As such, all facts, and reasonable

inferences therefrom, must be viewed in a light most favorable to the non-moving party, here the Supiks. Id. (citation omitted).

Yet, at the same time, Maryland's appellate courts have repeatedly stated that the determination of when a cause of action -9-

"accrues" under

Download Supik v. Bodie.pdf

Maryland Law