Appeals from the Superior Court of the District of Columbia (CA-94-4189, 96-5536) (Hon. Richard A. Levie and Robert I. Richter, Trial Judges)
Before Schwelb, Ruiz, and Reid, Associate Judges.
The opinion of the court was delivered by: Ruiz, Associate Judge
Submitted December 18, 2000
Jervon L. Herbin filed civil suits for damages against Janet Hoeffel and officers and members of the board of the D.C. Public Defender Service. He appeals the trial court's grant of summary judgment to appellee Hoeffel on Herbin's claim of spoliation of evidence, and the trial court's order of dismissal for failure to state a claim of his complaint based on a breach of client confidences against Hoeffel and the PDS defendants. We affirm in part, and reverse and remand in part.
We review these cases for the second time. In July of 1996, appellant filed an action pro se (hereinafter Claim I), alleging that Hoeffel, a former attorney with PDS he claims represented him, *fn1 "willfully, deliberately, and maliciously withheld or disguarded [sic] and/or destroyed documents" which he asserts were necessary to present as evidence in his upcoming criminal defense to charges of malicious wounding, forcible sodomy, attempted rape and abduction in Loudoun County, Virginia. *fn2 The following year appellant filed a related complaint against Hoeffel and officers and members of the board of PDS (hereinafter Claim II), alleging that on February 20, 1996, Hoeffel breached a duty of confidence she owed to him by providing information to prosecutors in Virginia which "enabled such officials to serve a search warrant" on him, and that the PDS defendants authorized or failed to prevent it, or to train or monitor Hoeffel. The trial court dismissed both complaints and Herbin appealed. In Herbin v. Hoeffel, 727 A.2d 883 (D.C. 1999) (Herbin I), we reversed, holding that dismissal of the complaint in Claim I was improper because the trial court had erroneously converted Hoeffel's motion to dismiss into a motion for summary judgment by relying on information outside the complaint without first giving appellant notice of his right to present additional material in support of his opposition. See id. at 887. With respect to Claim II, we held that the trial court was required by Superior Court Civil Rule 54-II to assist appellant, who was proceeding in forma pauperis, to serve process on the PDS defendants and therefore could not dismiss that action based on appellant's failure to effect service. See id. at 888.
Following remand, Hoeffel filed a motion for summary judgment in Claim I, the spoliation complaint, which appellant opposed. The trial court (Hon. Richard A. Levie) granted summary judgment for Hoeffel, reasoning that the tort of spoliation of evidence does not apply to those situations in which the evidence allegedly destroyed is to be used in a criminal case. The trial court further ruled that, even assuming the tort applies, appellant could not state a cause of action because he had not shown that the unavailability of the documents impaired his defense in the criminal case, that the documents were material to his defense, or that his defense would have had a significant possibility of success even if he had the documents.
In Claim II, following remand, the trial court (Hon. Robert I. Richter) did not reach the issue of service of process because he dismissed the complaint for failure to state a cognizable claim. The court ruled that while "the assertion that a confidence was breached by a lawyer may, under some circumstances, constitute an actionable claim, . . . where there is no causal connection made to the alleged harm, the complaint is deficient." Appellant, believing that Herbin I addressed the merits of Claim II, subsequently filed a "Motion to Vacate Erroneous Order Dismissing with Prejudice Plaintiff's Complaint and to Reinstate the Complaint in the Instant Action." The trial court denied his motion, noting that Herbin I upheld the factual sufficiency of the complaint in Claim I, not Claim II.
Herbin appealed from the judgments in both cases and, at his request, we consolidated his appeals from the trial court's orders in Claim I (No. 99-CV-1371) and Claim II (Nos. 99-CV-1575 and 00-CV-18). *fn3