Before Terry and Reid, Associate Judges, and Newman, Senior Judge.
The opinion of the court was delivered by: Terry, Associate Judge
Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.
Appeal from the Superior Court of the District of Columbia (Hon. Richard S. Salzman, Trial Judge)
Submitted October 22, 1998
Appellant seeks reversal of an order dismissing his legal malpractice action for failure to prove liability. He argues that the entry of a default against appellee established liability, and that the only remaining issue before the trial court was the amount of damages which he was entitled to recover. We agree with appellant, reverse the order of dismissal, and remand the case for further proceedings on the sole issue of damages.
Appellant Lockhart was employed as a police officer with the Metropolitan Police Department (MPD) for approximately twenty-one years. While he worked at the Police and Fire Clinic as a drug screening manager, one of his assigned duties was to notify the police department's Internal Affairs Division (IAD) whenever a urine specimen submitted by a police applicant tested positive for a controlled substance. Following standard procedures, Lockhart reported to IAD the positive results of a urinalysis test submitted by an applicant. Thereafter a second urinalysis yielded a negative reading, and the applicant was hired.
Mr. Lockhart's referral of the test results to IAD apparently displeased his supervisor, Inspector Winston Robinson. As a result, Lockhart was directed to give a written explanation of his reasons for informing IAD of the police applicant's positive test results. After he submitted his explanation, IAD looked into the matter and found that Lockhart had followed the correct procedures. Inspector Robinson was later transferred to a non-supervisory position. *fn1
After Robinson was transferred, he and other supervisors began to harass Lockhart and initiated an IAD investigation of him in retaliation for what he had done. Although the IAD investigation cleared him of any wrongdoing, Mr. Lockhart nevertheless elected to retire from the police department. Soon thereafter he applied for a management analyst position at the United States Department of Commerce. In response to the Department's reference checks, some of his past supervisors at MPD stated that Lockhart was a "marginal performer . . . was not a team player, that he lacked good judgment, and that he was certainly not qualified as an analyst." As a result, Mr. Lockhart was not hired by the Department of Commerce.
On August 13, 1992, Mr. Lockhart hired Maxine Cade, an attorney, to file a wrongful discharge and defamation action against the District of Columbia. Mr. Lockhart paid Ms. Cade $10,000 as a retainer. On October 6, 1992, Ms. Cade filed a complaint in the Superior Court alleging defamation, intentional infliction of emotional distress, and harassment, naming as defendants the Mayor, the Chief of Police, and two police department employees (but not the District of Columbia). The defendants filed a motion to dismiss the complaint, which was granted on July 29, 1994. The court ruled that Mr. Lockhart had failed to exhaust his administrative remedies under the Comprehensive Merit Personnel Act and that the Mayor and Chief of Police could not be held liable under the doctrine of respondeat superior.
B. The Legal Malpractice Action
On October 20, 1995, Mr. Lockhart -- represented by new counsel --filed a complaint in the Superior Court against Ms. Cade alleging legal malpractice, breach of contract, and breach of fiduciary duty. The complaint stated that Ms. Cade had been professionally negligent in the following respects:
"When the Plaintiff's failure to exhaust his administrative remedies was raised as an issue by the defendants in their motion to dismiss, Cade failed to advise the court that because Plaintiff was no longer employed by the MPD at the time of his job interview with the Department of Commerce, ...