Before Schwelb, Farrell and Ruiz, Associate Judges.
The opinion of the court was delivered by: Ruiz, 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.
Appeals from the Superior Court of the District of Columbia (Hon. Richard A. Levie, Trial Judge) (Hon. Judith E. Retchin, Trial Judge)
Submitted November 16, 199
Opinion for the court by Associate Judge Ruiz.
Concurring opinion by Associate Judge Schwelb at p. ___.
In this consolidated appeal, Jervon Herbin challenges first, the dismissal of his complaint alleging that appellee Janet Hoeffel willfully destroyed documents which Herbin asserted that he needed for his defense in a Virginia criminal case. Herbin also opposes the dismissal of a second complaint he filed against Hoeffel and the members of the board of the D.C. Public Defender Service (PDS) for his apparent failure to properly serve any of the named defendants within the deadline fixed by the court. In her motion to dismiss the first complaint, Hoeffel argued that Herbin had failed to state a claim upon which relief could be granted. However, because Hoeffel presented facts not pled on the face of the complaint in her motion, and because the trial court apparently relied on those facts in dismissing the complaint without giving Herbin an opportunity to respond, we hold that the trial court failed to comply with Rule 12 (b)(6), and reverse and remand the first case for further proceedings consistent with this opinion. We also reverse and remand the dismissal of Herbin's second complaint for failure to effect service as it was the trial court's obligation, pursuant to Super. Ct. Civ. R. 54-II, to serve process on behalf of Herbin, who was proceeding in forma pauperis.
Herbin was a client of PDS where Hoeffel worked as an attorney. *fn1 Herbin was charged with several offenses in the Circuit Court of Virginia, Loudoun County, and informed his Virginia counsel that he had spent some time in various psychiatric institutes in the past and that he had given those records to Hoeffel for safe-keeping. Although Herbin's attorney attempted to obtain these alleged records from Hoeffel, she informed him that she did not have the documents and did not wish to be contacted anymore regarding the matter.
Herbin then filed a complaint on July 9, 1996, alleging that Hoeffel "willfully, deliberately, and maliciously withheld, or disguarded [sic] and or destroyed documents which I need to present as evidence in an upcoming case." On November 1, 1996, the Superior Court stayed the action, pending resolution of Herbin's criminal case in Virginia, noting that "there are remedies available to plaintiff in the criminal proceeding to recover his file and its contents from his former attorney." In June 1997, Herbin was convicted of the charged offenses and sentenced to 92 years in prison. Following his sentencing in Virginia, the stay in the underlying action in Superior Court was lifted. After a series of motions from both parties, Hoeffel eventually filed a motion to dismiss for failure to state a claim under Super. Ct. Civ. R. 12 (b)(6), arguing that Herbin's allegations were too vague, and that he had failed to plead any causal connection between Hoeffel's alleged wrongful withholding of the documents and his conviction in Virginia. The trial court dismissed Herbin's complaint with prejudice in a one-page order that did not set out the reasons for dismissal.
In a second complaint, filed June 3, 1997, Herbin again brought suit against Hoeffel, this time also naming the board members of PDS and alleging that Hoeffel had provided the Commonwealth of Virginia with a copy of his pre-sentence report from a prior criminal charge in the District of Columbia which enabled Virginia prosecutors to locate his whereabouts and serve him with a search warrant. In doing so, Herbin contended, Hoeffel breached a duty of ...