Appeal from the Superior Court of the District of Columbia (CAB2590-04) (Hon. Melvin R. Wright, Trial Judge).
The opinion of the court was delivered by: Fisher, Associate Judge
Before RUIZ, KRAMER, and FISHER, Associate Judges.
Appellants, personal representatives and beneficiaries of Dr. Clarence Pair's estate, challenge the Superior Court's dismissal of their malpractice claims against the professionals who prepared and filed the estate's tax returns. In addition, appellants contest the dismissal of their breach of fiduciary duty claim against a former co-personal representative. Appellants also complain about the trial court's order awarding costs to appellees after dismissing one count of the original complaint at appellants' request. We affirm the trial court's award of costs, but reverse the judgments of dismissal and remand with instructions.
I. The Factual Background
Dr. Clarence Pair died on April 1, 2001, leaving an estate worth approximately $6,000,000.00. Appellants Quentin and Lauren Pair (the "Pairs") are beneficiaries under Dr. Pair's will.*fn1 Dr. Pair's will and codicils nominated, and the Probate Division of the Superior Court appointed, the Pairs and Thomas Queen to act as personal representatives of the estate.*fn2 Mr. Queen also acted as the estate's attorney with respect to preparing and filing tax returns.
The relationship between the Pairs and Mr. Queen broke down after Mr. Queen informed appellants that the District of Columbia and the IRS had assessed penalties and interest charges against the estate totaling more than a million dollars. The Pairs allege that they learned the estate's tax returns had been improperly prepared and had been filed almost a year and a half late. The Pairs then terminated Mr. Queen's employment as the estate's attorney and hired new counsel and accountants to correct the errors. Shortly thereafter, at appellants' request, Mr. Queen resigned as co-personal representative.
II. The Procedural Background
On April 1, 2004, appellants, representing the estate (as its remaining personal representatives) and in their individual capacities (as beneficiaries), filed a three-count complaint against appellees for their failure to properly prepare and file the estate's tax returns. Count II sought damages for attorney malpractice by Mr. Queen, his law firm (Thomas H. Queen and Associates), and Rudolph Smith, an attorney who appellants claim assisted Mr. Queen in preparing the estate's tax returns. Count II also alleged accountant malpractice by Gerald Tolliver, who appellants claim assisted Mr. Queen in preparing the tax returns. Count III sought damages for Mr. Queen's alleged breach of fiduciary duty while serving as a personal representative of the estate.
After a hearing on October 26, 2007, the trial court dismissed Count II of the complaint. Relying on United States v. Boyle, 469 U.S. 241 (1985), the court reasoned that, because the representative of a decedent's estate, as a taxpayer, has a non-delegable duty to the IRS to timely file the estate's tax returns, each of the personal representatives in this case was liable for the tax penalties. Then it "f[ou]nd, as a matter of law that the personal representatives . . . [were] jointly and severally liable for the taxes, and the interest, and the penalties that are imposed on the estate." According to the trial court, "representatives who are also negligent don't have standing to . . . bring a lawsuit against somebody who [they] joined in with in terms of creating the negligence." The court "f[ou]nd that . . . contributory negligence in this case [was] a complete bar." For these same reasons, the trial court later dismissed Count III.
In dismissing Count II, the trial court also explained, "In addition to the fact that [ ] the duties are non[-]delegable, I find that there was no privity between Tolliver and Smith to the personal representatives." As a result, the court granted the summary judgment motions filed by Mr. Smith and Mr. Tolliver.
After the trial court dismissed Counts II and III, appellants requested that it dismiss Count I of their complaint with prejudice.*fn3 On November 26, 2008, the trial court did so, pursuant to Super. Ct. Civ. R. 41 (a)(2). The court also ruled that "as the prevailing party in this suit, under Rule 54 (d) and 54-I," Mr. Queen was entitled to recover certain fees and costs. This fee award was, however, "conditional on the filing of an affidavit [from the expert witness]." Mr. Queen failed to submit such an affidavit and only submitted a general "Bill of Costs." Consequently, on March 27, 2009, the trial court determined that "no fees [were] due [ ] under the November 26 Order" and ordered appellants to pay Mr. Queen only "$945.17, comprised of $483.17 in filing fees and $462.00 in copying costs."