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11/13/91 CONNORS v. THOMAS M. REES

DISTRICT OF COLUMBIA COURT OF APPEALS


November 13, 1991

CONNORS, FISCINA, SWARTZ & ZIMMERLY, APPELLANT
v.
THOMAS M. REES, ET AL., APPELLEES; DEAN SWARTZ, APPELLANT V. CONNORS, FISCINA, SWARTZ & ZIMMERLY, APPELLEE

Appeals from the Superior Court of the District of Columbia; Hon. Gladys Kessler, Trial Judge.

Rogers, Chief Judge, Ferren, Associate Judge, and Belson,* Senior Judge.

The opinion of the court was delivered by: Belson

This case arises out of the actions of a law firm's "managing partner" who took several clients with him when he left the law firm's employment. The firm, Connors, Fiscina, Swartz & Zimmerly ("CFSZ"), filed a complaint alleging that the attorney, Dean Swartz, tortiously interfered with contractual relations between the firm and its clients and defamed the firm and its partners through representations he made to the clients shortly before he left the firm. CFSZ appeals the finding of the trial Judge, without jury, that the firm had failed to establish that Swartz's actions had wrongfully caused clients to execute substitution agreements with the firm Swartz was attempting to join, the Boccardo law firm, and to terminate their relationship with CFSZ. *fn1 Swartz cross-appeals, contending that the trial Judge erroneously excluded evidence that would have established the truth of his statement that CFSZ was experiencing severe financial difficulties and, generally, that the trial Judge erred in making findings regarding defamation which were not supported by the record. *fn2 We affirm.

I.

In the summer of 1981, three persons who were both medical doctors and attorneys, Dr. Paul Connors, Dr. Salvatore Fiscina, and Dr. James Zimmerly asked attorney Dean Swartz to join with them in forming a "premier" plaintiff's medical malpractice firm to be called Connors, Fiscina, Swartz & Zimmerly (hereinafter "CFSZ"). Connors, Fiscina, and Zimmerly would work only part-time in the evenings and on weekends, continuing to work full-time at their government jobs. As partners, they would decide matters of policy. In addition, they would lend the necessary funds to support CFSZ until income could be realized from the Conclusion of cases. Swartz would work full-time as an employee of CFSZ. Although he had no equity interest, he would have the title, "managing partner." He would not draw a salary but would be compensated from the collection of legal fees from cases that he referred to the firm and from cases on which he worked for the firm. The other associates hired by CFSZ had compensation arrangements similar to Swartz's.

By early 1982, conflicts had developed between Swartz and the three partners, Swartz becoming dissatisfied with the financial arrangement, and Connors, Fiscina, and Zimmerly growing dissatisfied with Swartz's handling of the cases. During this period, Swartz avoided several meetings with the partners. Finally, on April 24, 1982, Swartz met with Connors, Fiscina, and Zimmerly, but only to give them his letter of resignation and copies of termination agreements he had obtained from CFSZ clients.

Prior to his resignation, Swartz had contacted Thomas M. Rees, a partner with the Boccardo law firm, about joining that firm. Impressed with Swartz and the potential clients he proposed to bring with him, Rees informed Swartz that he had no authority to hire him, but intended to recommend him to James F. Boccardo, the senior partner of the firm. Rees further told Swartz that potential clients needed to execute a substitution agreement, designating the Boccardo law firm as their attorney. To assist Swartz with the drafting and execution of the substitution agreement, Rees sent him several Boccardo law firm brochures.

Armed with the form substitution agreements and termination agreements, Swartz proceeded to contact several clients whom he hoped to take with him to the Boccardo law firm. Between April 15, 1982, and April 21, 1982, Swartz met with Calvin W. Shives (April 15th), Irene P. Krueger (April 16th), Richard and Gladys Hemphill (April 16th), Alexandria Sloan (April 17th), and Loretta E. Washington (April 21st) either at their homes or their work to inform them that he was leaving CFSZ to join the Boccardo law firm. After providing each client with the Boccardo law firm brochure and emphasizing particular facts about the firm, Swartz informed each client of his or her options: to remain with CFSZ, to go with him to Boccardo, or to retain other counsel. Each client signed the termination agreement and substitution agreement at his or her meeting with Swartz.

Only the Hemphills expressed any doubts about signing the agreements. *fn3 In the course of the meeting in which Swartz first told the Hemphills that he was leaving the firm, he also told them that CFSZ planned to sell their case to a Wisconsin firm for $50,000 and that CFSZ lacked the financial resources to press the Hemphills' case. The Hemphills spoke with Swartz several times after the meeting, expressing their concerns about their representation. In a further effort to convince the Hemphills to go with him to the Boccardo law firm, Swartz wrote a letter to them repeating his earlier statements that CFSZ planned to have a Wisconsin law firm handle the case and stating that a possible conflict may have existed with the partners' medical practices. Swartz also informed the Hemphills that he had "bought" Mr. Hemphill's medical records from CFSZ. Having lost all confidence in both Swartz and CFSZ, the Hemphills decided to follow the earlier advice of their personal attorney that they retain Marvin Ellin, Esq., to represent them in their medical malpractice claim.

With respect to CFSZ's claim of tortious interference with contractual relations, the trial Judge found at a bench trial that Swartz had "flatly and unequivocally misrepresented the status of his future employment and firm affiliation," that he had "knowingly and intentionally emphasized those facts about [the Boccardo] firm which would be particularly appealing to these particular clients," and that he "blatantly lied to the Hemphills and Ms. Krueger about the intention of to 'auction off' or sell their cases to a Wisconsin law firm." *fn4 Nevertheless, the trial Judge concluded that the evidence failed to establish that this conduct was "responsible for the severing of the contractual relationship" between the clients and CFSZ. Rather, the trial Judge concluded, the cause of the clients' "flight" from CFSZ was "the fact that the lawyer with whom they had a close and satisfying professional relationship was leaving the firm, and the fact that they had no such relationship with any of the firm's other lawyers all of whom . . . were faceless strangers." *fn5 (Emphasis added.)

The trial Judge concluded with respect to CFSZ's defamation claim that Swartz's statements to the Hemphills that CFSZ planned to sell their cases to a Wisconsin firm and that he had "bought" the Hemphills' medical records from CFSZ were defamatory per se. Finding that Swartz neither believed nor had any reasonable basis to believe these statements, the trial Judge concluded that Swartz was not protected by a qualified privilege to make them. The trial court awarded CFSZ $2,500 in compensatory damages and $7,500 in punitive damages for defamation.

II.

CFSZ contends that the trial Judge erred in failing to find that Swartz's tortious conduct proximately caused CFSZ's clients to terminate their relationship with the firm. *fn6 They argue that the trial Judge improperly applied the doctrine of proximate cause by failing to consider whether Swartz's conduct was a "substantial factor" in the clients' decisions to leave. To prevail on its claim, CFSZ had to prove that Swartz's intentional misrepresentations caused the clients to leave CFSZ. See Tuxedo Contractors, Inc. v. Swindell-Dressler Co., 198 U.S. App. D.C. 426, 429, 613 F.2d 1159, 1162 (1979); see also Technology for Energy Corp. v. Scandpower, A/S, 880 F.2d 875, 877 (6th Cir. 1989), cert.denied, 110 S.Ct. 868, 596 A.2d 35,41 (1991) (1990). See generally Dalo v. Kivitz, No. 90-712, slip op. at 15 (D.C. August 7, 1991) ("proximate cause exists when there is a 'substantial and direct causal link'").

The trial Judge's thorough written opinion dealt explicitly with the issue of proximate cause:

the misrepresentations about the Boccardo law firm, about the financial precariousness of Connors, Fiscina, and about the plan to "sell" their cases to the Wisconsin firm were of no determinative weight and were not the cause, proximate or otherwise, of their decision to terminate their retainer agreements with Connors, Fiscina.

(Emphasis added.) The trial Judge later specified that by this language it meant "to make it clear that it was excluding the possibility that those misrepresentations were substantial or contributing or Concurring causes of the breach."

The trial court's Conclusion that it was not Swartz's misconduct that caused CFSZ's clients to leave CFSZ is a finding of fact that will not be set aside unless clearly erroneous. See District of Columbia v. Freeman, 477 A.2d 713, 716 (D.C. 1984) ("existence of proximate cause is a question of fact"); Tuxedo Contractors, Inc., supra, 198 U.S. App. D.C. at 429, 613 F.2d at 1162; D.C. Code § 17-305(a) (1989); see also W. KEETON, THE LAW OF TORTS, § 129, at 991 (5th ed. 1984). The trial court based its finding of no proximate cause on the unequivocal testimony of the clients that they had a close and satisfying professional relationship with Swartz, that they had no relationship with any other attorney at CFSZ, and, in some instances, that they would have followed Swartz anywhere. *fn7 Having reviewed the record and the trial Judge's thorough findings of fact and Conclusions of law, we cannot say that the trial Judge's finding was clearly erroneous. *fn8

III.

Swartz contends that the trial Judge's finding of defamation with respect to his statements that CFSZ was suffering financial difficulties is flawed by the trial Judge's improper exclusion of evidence. At trial, Swartz offered for admission into evidence, through the testimony of Dr. John Burroughs, several documents relating to the financial difficulties of CFSZ. The trial Judge excluded the documents without permitting Swartz first to make a proffer, and apparently without examining them. This, Swartz asserts, was an abuse of discretion. See Nolan v. Nolan, 568 A.2d 479, 487-89 (D.C. 1990); see also Weiner v. Kneller, 557 A.2d 1306, 1309-12 (D.C. 1989); see generally Johnson v. United States, 398 A.2d 354, 364 (D.C. 1979).

Even if we assume, however, that the exclusion of these documents was error, any error was harmless. See Johnson, supra, 398 A.2d at 366-67. Although the trial Judge concluded that the statements Swartz made in the letter to the Hemphills about the financial stability of CFSZ were defamatory per se, it further found that under the circumstances, Swartz may have had a reasonable belief that this statement was true and thus, that he had a qualified privilege in making the statement. At most, the excluded documents would further support the trial Judge's finding that Swartz may have had a reasonable belief in the truth of these statements, and her Conclusion that these remarks were not "so excessive, intemperate, unreasonable, and abusive as to forbid any other reasonable Conclusion than that defendant was actuated by express malice." Ashford v. Evening Star Newspaper Co., 41 App. D.C. 395, 405 (1914). In any event, Swartz was not held liable for defamation based on statements that he made regarding CFSZ's financial stability. Finally, we are unpersuaded by Swartz's other challenges to the trial Judge's rulings on defamation and find those rulings amply supported by the record.

Affirmed.


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