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Hogue v. Hopper

April 22, 1999

DALE CURTIS HOGUE, SR., APPELLANT,
v.
DONALD J. HOPPER, ET AL., APPELLEES



Before Wagner, Chief Judge, and Schwelb and Reid, Associate Judges.

The opinion of the court was delivered by: Schwelb, 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. Evelyn C. Queen, Trial Judge)

Argued October 27, 199

In this action brought by Dale C. Hogue, Sr., an attorney, against Donald J. Hopper, a certified public accountant, *fn1 alleging professional negligence, breach of fiduciary duty, and breach of contract, the trial Judge sustained Hopper's defense of collateral estoppel and granted summary judgment in Hopper's favor. On appeal, Hogue contends that the doctrine of collateral estoppel was erroneously applied. We affirm in part, reverse in part, and remand.

I.

From July 1993 to June 1994, Hogue was a partner in the law firm of Mason, Fenwick & Lawrence (MFL). On June 30, 1994, MFL merged with the law firm of Popham, Haik, Schnobrick & Kaufman (PHSK), which acquired most of MFL's assets. MFL ceased to exist.

A dispute arose between Hogue and PHSK as to the amounts to which Hogue was entitled upon the winding up of MFL. Hogue claimed that MFL had not rendered him an accounting for his share of the partnership assets; that MFL had filed, to Hogue's detriment, an improperly prepared 1994 partnership tax return; that MFL had not paid Hogue compensation due to him as a partner; and that he was entitled to unpaid pension benefits, a bonus, and other items. Hogue also claimed that an item which MFL treated as a $50,000 loan to Hogue was in fact an advance payment of compensation, and that he was not liable for that amount.

In conformity with an agreement between the partners, Hogue's claim was submitted to arbitration. On May 28, 1996, the arbitrator issued a brief written decision in which he rejected most of Hogue's claims and held, inter alia, that Hogue was not entitled to an additional accounting or to the additional compensation requested by him. The arbitrator also denied Hogue's claim with respect to the 1994 income tax return, and he made a substantial award to the law firm on its counterclaim, which was largely based on the disputed $50,000 loan.

On May 5, 1997, Hogue filed a motion in the Superior Court to set aside the arbitrator's award. On August 13, 1997, the trial Judge denied Hogue's motion. On July 1, 1998, this court affirmed the trial Judge's order in an unpublished memorandum opinion and judgment. Hogue v. Popham, Haik, Schnobrick & Kaufman, No. 97-CV-960 (D.C. July 1, 1998).

Meanwhile, on November 14, 1996, Hogue brought the present action against Hopper. Hopper had been retained by MFL to provide accounting services in connection with the merger, and he had testified before the arbitrator as a witness for MFL. Hogue alleged that Hopper audited and prepared MFL's year-end balance sheets and income statements and prepared the partnership's income tax return, and that Hopper carried out these tasks in an unprofessional manner and to Hogue's substantial detriment. Hogue also alleged that, prior to the merger, Hopper had made incorrect representations to Hogue regarding the tax consequences and other consequences of the proposed merger, and that

"[a]s a proximate result of [Hopper's] failure to follow generally accepted accounting principles, in violation of his duties as a certified public accountant, and his obligations to [Hogue], [Hogue] suffered damages in the sum of $365,000 in making business decisions based on [Hopper's] statements and reports."

Hopper filed a motion for summary judgment, arguing that all of Hogue's claims against him were precluded by the arbitrator's decision. Agreeing ...


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