Before Schwelb, Reid, and Washington, Associate Judges.
The opinion of the court was delivered by: Schwelb, Associate Judge
Appeal from the Superior Court of the District of Columbia
(Hon. Shellie F. Bowers, Trial Judge)
Opinion for the court by Associate Judge Schwelb.
Dissenting opinion by Associate Judge Reid, at p. 18.
In this action for legal malpractice, the trial judge granted the attorney's motion for summary judgment on the grounds that the suit was barred by the three-year statute of limitations. See D.C. Code § 12-301(8) (1995). The client appeals, contending that the action was timely under the "discovery rule" and related equitable principles. We conclude that a genuine issue of material fact is presented as to whether, in the exercise of reasonable diligence, the client should have known or suspected at the relevant times that the attorney's conduct was wrongful. Accordingly, we reverse.
On March 29, 1989, Willie L. Ray, Sr., was killed when the car he was driving collided with a bus. Mr. Ray died intestate, leaving his widow, Bertha L. Ray, and the couple's five adult children: Willie Jr., Anthony, Karl, Lenora, and Eric. Willie Jr. was appointed personal representative of his father's estate.
Willie Jr. and his mother asked the defendant, Thomas H. Queen, Esquire, an attorney who was also a friend and neighbor of the Ray family, to represent them in connection with the accident that led to the death of the decedent. In his capacity as personal representative, Willie Jr. signed a retainer agreement engaging Mr. Queen's services to seek recovery from the bus company and its driver. Mr. Queen filed a survival action on Willie Jr.'s behalf in the United States District Court. In January 1990, the case was settled for a lump sum payment of $225,000 to Willie Jr., as personal representative, and monthly payments of $1,551.42 over a ten-year period to the decedent's widow.
In conformity with the negotiated agreement resolving the survival action, Mr. Queen received, and presented to Willie Jr., a settlement check in the amount of $225,000 payable to Willie Jr. as personal representative. Acting in conformity with Mr. Queen's instructions, *fn1 Willie Jr. endorsed the check and returned it to Mr. Queen, who placed it in his escrow account. Mr. Queen then disbursed the proceeds of the settlement check as follows: $5,000 to each of the Ray children, *fn2 and the balance, after deduction of Mr. Queen's counsel fee, to the decedent's widow. According to Willie Jr.'s deposition testimony, Mr. Queen effected this distribution of the settlement proceeds without discussing it with Willie Jr. or with the other Ray children, and without informing him or them of the provisions of D.C. Code §§ 19-303, -306 (1997), which govern the distribution of an intestate's estate. Section 19-303 provides that "[w]hen the intestate leaves a surviving spouse and a child, or a descendant of a child, the surviving spouse is entitled to one-third."
Mr. Queen was fully aware that the distribution of the entire settlement proceeds to the decedent's widow was not in conformity with the intestacy statute. Shortly after the settlement, Mr. Queen prepared, and Mrs. Ray executed, the following "Authorization":
I, Bertha Mae Ray, the surviving widow of Willie Lee Ray, hereby acknowledge the fact that under the laws of intestacy, I realize that I am entitled to 1/3 of my deceased husband's estate and that my five (5) children, collectively, are entitled to 2/3 of my deceased husband's estate. However, in view of the fact that I was totally dependent upon my husband, I have instructed my attorney, Thomas H. Queen, Esquire, to disburse the net proceeds of the settlement in the amount of $130,601.94 as follows:
1. Each of my five (5) children is to receive a payment of $5,000 each.
2. The remaining $105,601.94 shall be paid to me directly.
I hereby agree to indemnify and save harmless my attorney, Thomas H. Queen, from any claims or suits which may be presented by any of my five (5) children, or their heirs, or anyone acting in their interest, who attempts to obtain payment of any amount that any such child shall claim to be due as the intestate portion of my deceased husband's estate.
On February 8, 1990, in a letter that accompanied the "Authorization," Mr. Queen stated that Mrs. Ray needed to sign the document "in order to make certain that I am protected from any claims that any of your children might make in the future." Willie Jr. was not apprised of this "Authorization," and his siblings were likewise unaware of it.
Mrs. Ray, who was suffering from diabetes and other ailments and unable to work, purchased a house in Mitchellville, Maryland. Willie Jr. acknowledged in his deposition that he knew that the home could only have been acquired with the proceeds of the settlement check, and that it was known to all of the Ray children that their mother had the settlement money. Although Willie Jr., as personal representative of his father's estate, was responsible for informing the court as to the estate's assets, he made no inquiry of Mr. Queen or anyone else as to the disposition of the $225,000 that the bus company had paid in settlement of the survival action. Indeed, Willie Jr. testified that he did not read the relevant documents, but simply carried out Mr. Queen's instructions. According to Willie Jr., his mother had intimated to him that all of the children would receive shares of the money after her death. *fn3
Bertha Mae Ray died on March 10, 1996. In going through her effects, the Ray children discovered the "Authorization" and associated correspondence. In his deposition testimony, Willie Jr. characterized the documents as "shocking." A few days after Mrs. Ray's death, the contents of her will were disclosed to her children. It turned out that Mrs. Ray had left the house in Mitchellville and most of her other assets to her youngest son, Eric, who had been living with her and looking after her. The other children, according to Willie Jr., were "very disappointed," for they believed that their mother had deceived them by promising to set aside some of the money for them and by subsequently breaking her promise. Willie Jr. testified, however, that he and his siblings had not believed that their mother was legally obligated to leave the money to them "until we found out about the intestacy laws," an event that coincided with the discovery of the "Authorization" after Mrs. Ray's death.
On September 18, 1996, Anthony L. Ray, who had been substituted for Willie Jr. as the father's personal representative, and three of Anthony's siblings, *fn4 filed this suit against Mr. Queen. The plaintiffs alleged that the defendant breached his professional obligation to them, inter alia, by concealing his arrangement with their mother and by distributing the settlement proceeds to her when the children were entitled to receive two thirds of the proceeds under the intestacy laws. On September 20, ...