Al Jazeera International v. Dow Lohnes PLLC et al

Filing 106

MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 12/21/2016. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
AL JAZEERA INTERNATIONAL
:
v.

:

Civil Action No. DKC 13-2769

:
DOW LOHNES PLLC, et al.
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this attorney
malpractice

case

is

Defendants

Dow

Lohnes

(“Defendants”).
briefed,

and

necessary.

a

(ECF

the

motion
PLLC

No.

court

for
and

91).

now

summary

The

rules,

Local Rule 105.6.

judgment

Leslie

H.

issues
no

by

Wiesenfelder

have

hearing

filed

been

being

fully
deemed

For the following reasons, the

motion for summary judgment will be granted in part and denied
in part.
I.

Background1
A.
This

The Facts of the Underlying Litigation
attorney

representation

malpractice

of

Plaintiff

case
Al

stems

from

Jazeera

Defendants’
International

(“Plaintiff”) in a contract dispute with Winmar, Inc.

In 2005,

Plaintiff entered into a construction contract with Winmar, Inc.
to build a television studio and offices in Washington, D.C.
(the “Contract”).
1

(ECF No. 99, at 7).

Janson Design Group (the

Unless otherwise noted, the facts outlined here are
undisputed or construed in the light most favorable to
Plaintiff, the nonmoving party.

“Architect”) was the architect for the project.

(Id.).

The

Contract established a payment process under which Winmar would
submit periodic invoices (“Payment Applications”) for review by
the

Architect

as

Plaintiff’s

agent;

if

the

Architect

was

satisfied, it would certify these Payment Applications to be
paid by Plaintiff.

(Id. at 8).

Between October and December 2005, Winmar submitted four
Payment

Applications

totaling

certified all four of them.

$1,838,140,

(Id.).

and

the

Architect

Concerned that Winmar had

not completed all of the work for which it was seeking payment,
Plaintiff

paid

$474,677.

only

one

at

9).

(Id.

of

the

Winmar

invoices,
sent

in

the

Plaintiff

a

amount

of

notice

of

default on December 22, asserting that it was in breach of the
Contract

and

remaining

directing

certified

it

to

cure

amounts.

the

breach

(Id.).

by

paying

Defendants

the

advised

Plaintiff that even if Winmar had not completed the appropriate
amount of work, the contract language was such that non-payment
could be considered a breach by a reviewing court.

(Id. at 9-

10).

engaged

Given

the

billing

dispute,

Plaintiff

construction manager to review the state of the project.
No.

50

¶

22).

Plaintiff,

and,

payments.

He

concluded

consequently,

that

Winmar

Plaintiff

had

made

a

(ECF

overbilled
no

further

(Id.).

On January 5, 2006, the Architect sent a letter to Winmar,
rescinding

its

certification

for
2

the

three

unpaid

invoices,

declaring that the certifications had been made in error and
were withdrawn on account of “a number of discrepancies in the .
. . Application documents, as well as the lack of appropriate
(ECF No. 99, at 10).2

supporting documentation.”

The Architect

asked Winmar for additional documents supporting the invoices,
which Winmar refused to provide.

(Id. at 10-11).

then terminated the Contract for convenience.

Plaintiff

(Id.

at 12).

Plaintiff soon after sent a letter to Winmar and the Architect
pursuant

to

disputes.
177

the

Contract’s

process

for

resolving

billing

Winmar, Inc. v. Al Jazeera Int’l, 741 F.Supp.2d 165,

(D.D.C.

Plaintiff’s

2010).

The

letter

calculations,

approximately $200,000.

it

stated
had

that,

according

to

Winmar

by

overpaid

Id.

Meanwhile, apparently in response to Plaintiff’s attempt to
confirm

the

Plaintiff’s

status
bank,

of

Qatar

the

single

National

payment

Bank

it

(“QNB”),

transferred the $474,677 payment a second time.

had

made,

erroneously
Id. at 176.

Instead of returning the money to QNB, Winmar construed this as
a payment for one of the other certified Payment Applications
and returned the difference between the payment and Application
amount, an extra $119,380, directly to Plaintiff.

Id. at 177.

Plaintiff evidently considered this payment to be a response to
its

$200,000
2

demand,

so,

at

that

point

in

March

of

2006,

The Architect later rescinded certification for the fourth
Payment Application, the one that Plaintiff had already paid.
(ECF No. 99, at 11).
3

Plaintiff

believed

it

was

owed

roughly

$80,000.

Given

the

amount in dispute, Plaintiff decided that it would not make
economic
amount.

sense

to

file

suit

against

Winmar

to

recover

that

(ECF No. 99, at 27).

On July 24, 2006, QNB filed suit against Winmar in the
United States District Court for the District of Columbia to
recover the $474,677 duplicate payment.

(Id. at 13).

Winmar

then filed a third-party complaint against Plaintiff, alleging
that Plaintiff had breached the Contract by not making payments
pursuant to the Architect’s certifications.
Defendants

to

represent

it

and

filed

a

Plaintiff retained
counterclaim

against

Winmar, denying any liability and asserting that Plaintiff had
overpaid

Winmar

pursuant

to

provisions of the Contract.
prior

to

the

time

the

termination

for

convenience

In its answer, Winmar alleged that,

Plaintiff

terminated

the

Contract

for

convenience, Plaintiff had materially breached the Contract and,
therefore,
invoice

Winmar

certified

was
by

entitled
the

to

the

Architect,

full

more

amount

than

$1.7

of

every

million.

Winmar, 741 F.Supp.2d at 177-78.
B.

The Instant Malpractice Claims

Plaintiff
substantial

now

issue

certification,

but

alleges
regarding
that

that
the

Winmar’s

accuracy

Defendants

failed

suit

raised

of

the

to

investigate

a

Architect’s
the

Architect’s role in the events, including whether the Architect
breached its duty of care.

(ECF No. 50 ¶ 29).
4

It argues that

Defendants’ failure to investigate the Architect left Plaintiff
with no factual defense to Winmar’s principal claim: i.e., that
the

certifications

were

Plaintiff owed Winmar.
raised

the

prima

facie

(Id. ¶ 31).

certifications

at

evidence

of

the

amount

Consequently, when Winmar

trial,

Defendants

rebuttal, leaving Plaintiff greatly exposed.

offered

no

(Id. ¶ 34).

On September 29, 2010, Judge Gladys Kessler of the United
States District Court for the District of Columbia issued a
memorandum

opinion

and

order,

granting

Winmar and against Plaintiff.

judgment

in

favor

of

Winmar, 741 F.Supp.2d at 196.

The court found that “Al Jazeera offered no evidence at trial
showing how the Architect arrived at the decision to certify the
Payment Applications. . . .

In the absence of any evidence from

Al Jazeera that the Architect neglected its duties under the
Contract in making the certification decisions, the certified
Payment

Applications

are

the

most

reliable

evidence

of

services performed by Winmar in the periods covered.”
182-183.

Id. at

Judge Kessler gave little weight to the subsequent

rescissions,
Architect’s]
supporting

the

which

were

conclusion

based

that

documentation,”

valid under the Contract.

a

“in

Winmar

large
is

required

justification

Id. at 182.

part

she

on
to

found

[the

provide
was

not

She also stated that she

“has never been able to understand why neither party ever called
the Architect to testify.”

Id. at 182 n.17.

Judgment was

granted in favor of Winmar for a total of $1,472,625.50.
5

Id. at

196.

Although Plaintiff appealed the judgment to the United

States Court of Appeals for the District of Columbia Circuit, it
decided to settle the dispute for $2,000,000 while that appeal
was pending rather than run the risk of an unfavorable outcome
on appeal.3
On September 19, 2013, Plaintiff filed a complaint in this
court

for

(ECF

No.

legal
1).4

malpractice,
Plaintiff

citing

alleges

diversity

that

jurisdiction.

Defendants,

as

its

attorneys during the Winmar litigation, owed it a duty of care
to conduct a thorough and competent investigation of the facts
and circumstances surrounding Plaintiff’s dispute with Winmar
and to exercise sound and reasonable judgment in planning and
executing

a

defense

to

Winmar’s

claims

against

Plaintiff.

According to Plaintiff, Defendants breached this duty by failing
to depose the Architect or calling the Architect as a witness at
trial.

Plaintiff contends that but for Defendants’ failure to

depose or call the Architect as a witness, Plaintiff would have
prevailed

in

the

Winmar

litigation.

In

the

alternative,

Plaintiff maintains that Defendants breached the duty of care by

3

Beyond the $1.4 million judgment, Plaintiff was also
separately assessed attorneys’ fees; post-judgment interest was
also accruing while the appeal was pending.
Plaintiff
represents that it was facing a final judgment of more than
$3,000,000 if the appeal was unsuccessful.
4

Plaintiff is a corporation organized under the laws of
Qatar with its principal place of business in Qatar. Defendants
are residents of the District of Columbia and Maryland.
The
amount in controversy exceeds $75,000.
6

failing to advise Plaintiff to file suit against the Architect
or

to

join

the

Architect

as

a

defendant

in

the

Winmar

litigation.
After the court denied Defendants’ motion to dismiss (ECF
No. 15), the parties engaged in discovery.

Defendants submitted

the instant motion for summary judgment on April 16, 2016.
No.

91).

Plaintiff

responded

(ECF

No.

99),

and

(ECF

Defendants

replied (ECF No. 102).
II.

Standard of Review
A motion for summary judgment will be granted only if there

exists no genuine dispute as to any material fact and the moving
party

is

entitled

to

judgment

as

a

matter

of

law.

See

Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986);

Anderson

v.

Liberty

Lobby,

Inc.,

477

U.S.

242,

250

(1986); Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008).

A

dispute about a material fact is genuine “if the evidence is
such

that

a

nonmoving

reasonable

party.”

jury

Liberty

could

return

a

verdict

Lobby,

477

U.S.

at

for

249.

the
In

undertaking this inquiry, a court must view the facts and the
reasonable

inferences

drawn

therefrom

“in

the

light

most

favorable to the party opposing the motion,” Matsushita Elec.
Indus.

Co.

(quoting

v.

United

Zenith
States

Radio

Corp.,

v.

Diebold,

475

U.S.

Inc.,

574,

369

587

U.S.

(1986)

654,

655

(1962)); see also EEOC v. Navy Fed. Credit Union, 424 F.3d 397,
405 (4th Cir. 2005), but a “party cannot create a genuine dispute
7

of

material

fact

inferences.”

through

mere

speculation

or

compilation

of

Shin v. Shalala, 166 F.Supp.2d 373, 375 (D.Md.

2001) (citation omitted).
To prevail on a motion for summary judgment, the moving
party generally bears the burden of showing that there is no
genuine dispute as to any material fact.

No genuine dispute of

material fact exists, however, if the nonmoving party fails to
make a sufficient showing on an essential element of his case as
to which he or she would have the burden of proof.
U.S.

at

322–23.

nonmoving

party

Therefore,
has

the

on

those

burden

issues

of

proof,

Celotex, 477
on
it

which
is

the
his

responsibility to confront the summary judgment motion with an
“affidavit

or

other

evidentiary

showing”

there is a genuine issue for trial.

demonstrating

that

See Ross v. Early, 899

F.Supp.2d 415, 420 (D.Md. 2012), aff’d, 746 F.3d 546 (4th Cir.
2014).
III. Analysis
To succeed on a legal malpractice claim under District of
Columbia law, a plaintiff must show that: (1) the defendant was
employed as the plaintiff’s attorney; (2) the defendant breached
a reasonable duty; and (3) that breach resulted in, and was the
proximate cause of, the plaintiff’s loss or damages.

Martin v.

Ross, 6 A.3d 860, 862 (D.C. 2010) (citing Niosi v. Aiello, 69

8

A.2d 57, 60 (D.C. 1949)).5

“Unless a party has a good cause of

action against the party proposed to be sued, the first party
loses nothing by the conduct of his attorney even though the
latter were guilty of gross negligence.”

Niosi, 69, A.2d at 60.

“[I]f, notwithstanding the negligence, the client had no cause
of action or meritorious defense as the case may be; or [] if
conduct of an attorney with respect to litigation results in no
damage to his client[,] the attorney is not liable.”

Id.

A.
Defendants’ Failure to Depose or Call the Architect as
a Witness
Defendants

begin

by

arguing

that

they

are

entitled

to

summary judgment under Plaintiff’s theory of liability based on
their failure to interview, depose, or call the Architect as a
witness because evidence shows that the alleged failure was not
the proximate cause of Plaintiff’s injuries.

In an attorney

malpractice case, the plaintiff must show that the outcome of
the underlying suit would have been more favorable absent the
alleged

negligence

by

the

attorney.

F.Supp.2d 1, 4 (D.D.C. 2011).

Hickey

v.

Scott,

796

“[I]n most cases, the existence

of proximate cause is a question of fact for the jury, and only
if it is absolutely clear that the defendant’s negligence could
not have been a proximate cause of the harm asserted by the
plaintiff is it a question of law.”

Smith v. Hope Village,

Inc., 481 F.Supp.2d 172, 185 (D.D.C. 2007); see also Hickey, 796
5

As discussed in the court’s previous memorandum opinion on
Defendants’ motion to dismiss, substantive District of Columbia
law applies to the claims in this case. (ECF No. 15, at 7 n.4).
9

F.Supp.2d

at

4

(“Causation

is

normally

a

question

of

fact

Tsai,

the

reserved for the jury.”).
Having

now

taken

the

deposition

of

Mr.

representative of the Architect who certified the payments on
the Winmar project, Defendants contend that his testimony would
merely have supported Judge Kessler’s finding that the certified
Payment Applications were the most reliable and best evidence of
the amount of work that Winmar had performed at the time.

(ECF

No.

Tsai

91,

at

indicating

24).
that

Applications

for

They
his

point

regular

clients

to

testimony

routine

included

“on

in

from

certifying

site

Mr.

Payment

observations”

and

“walk[ing] around the site to see that the work has been done”
and

that

he

“signed

[the

certifications]

believing

that

the

numbers [that Winmar was claiming was due] were correct.” (ECF
No. 91-11, at 2-4).

According to Defendants, calling Mr. Tsai

as a witness only “would have cemented” Judge Kessler’s opinion
about

the

reliability

of

the

certified

Payment

Applications.

(ECF No. 91, at 25).
Plaintiff does not mention Defendants’ failure to depose or
call the Architect as a witness in the causation section of its
opposition to the motion.
to

elsewhere

in

its

The only piece of evidence it points

papers

that

might

refute

Defendants’

causation arguments is that Dennis Janson, the owner of the
Architect, testified that “upon further investigation of those
payments, actually going down to the job site, looking at it
10

again the issue came up that what they were asking for was not
consistent with the state of the project.”
10).

(ECF No. 99-27, at

As Defendants note, however, Mr. Janson later stated that

the

Payment

Applications

were

incomplete,

not

necessarily

incorrect, and that he had “no idea” whether documentation would
have shown that certification was appropriate or not.

(ECF Nos.

102, at 9; 91-25, at 13-14).
None

of

this

testimony

would

have

“rebutt[ed]

the

presumption of the certified Payment Applications’ accuracy by
presenting

evidence

that

they

were

prepared

incorrectly,”

as

Judge Kessler said Plaintiff would have needed to do to change
the outcome of the case.
added).

Mr.

Tsai’s

Winmar, 741 F.Supp.2d at 182 (emphasis
testimony

would

have

supported

the

reliability of the certifications, and Mr. Janson’s testimony
would merely have restated the Architect’s ambiguous assertion
that the Payment Applications were not valid – something the
Architect’s
reasonable

rescissions
jury

could

had

find

already
that

the

expressed.
combined

Thus,

testimony

no
from

these two representatives of the Architect would have altered
Judge

Kessler’s

analysis

of

the

case

in

Plaintiff’s

favor.

Defendants’ decisions not to depose the Architect and not to
call the Architect as a witness, even if negligent, did not
cause

Plaintiff’s

losses.

Defendants’

judgment will therefore be granted in part.

11

motion

for

summary

B.
Defendants’ Failure to Advise Plaintiff to Sue the
Architect
Defendants next argue that Plaintiff cannot survive summary
judgment on its alternate theory that they should have advised
it

to

sue

theory

of

the

Architect.

malpractice,

a

Unlike
claim

Plaintiff’s

based

on

trial

failure

conduct

to

advise

Plaintiff to sue is not dependent on the outcome of the Winmar
case.

Rather, to show malpractice for failure to advise it to

sue, Plaintiff must demonstrate that it had a viable cause of
action and that Defendants did not advise pursuing that cause of
action.

Macktal v. Garde, 111 F.Supp.2d 18, 21 (D.D.C. 2000);

Niosi, 69 A.2d at 60.

This requires the court to evaluate the

viability of the unpursued claim, “the so-called ‘case within
the case[,]’ to determine if it was a good cause of action.”
Macktal, 111 F.Supp.2d at 21.

On Defendants’ instant summary

judgment motion, then, Plaintiff must show some evidence that it
had a viable claim against the Architect.
1.

The Case Within the Case

“The elements of an action for professional negligence are
the

same

plaintiff

as

those

bears

of

the

an

ordinary

burden

of

negligence

presenting

action.

evidence

‘The
which

establishes the applicable standard of care, demonstrates that
this

standard

has

been

violated,

and

develops

a

causal

relationship between the violation and the harm complained of.’”
O'Neil

v.

Bergan,

452

A.2d

337,

341

(D.C.

1982)

(quoting

Morrison v. MacaNamara, 407 A.2d 555, 560 (D.C. 1979)).
12

In a

negligence action against the Architect, then, Plaintiff would
have had to show: (1) that the Architect owed it a duty of care;
(2) that the Architect breached that duty when it certified the
Payment Applications; and (3) that the certification was the
proximate

cause

of

an

injury

or

damages

to

Plaintiff.

The

contractual relationship between the Architect and the Plaintiff
clearly imposed a duty of care, but the parties dispute the
other two elements of Plaintiff’s putative claim.
a.

The Architect’s Breach

Plaintiff alleges that the Architect breached its duty of
care by certifying the Payment Applications even though they did
not

accurately

completed.

reflect

the

amount

(ECF No. 50 ¶ 18).

of

work

that

had

been

It has produced expert testimony

from another architect who stated in his report that “Winmar in
fact did not complete the work it claimed to have completed at
the time that it issued the payment applications,” and that the
“Architect’s

certification

of

the

payment

applications

under

these circumstances breached the duty of care the Architect owed
to [Plaintiff]]” (ECF No. 99-85, at 4).
witness’s

testimony

therefore

meets

Plaintiff’s expert

Plaintiff’s

burden

with

regard to the breach element of a potential claim.
Defendants make two arguments that attack the viability of
the underlying claim on the element of the Architect’s breach of
duty.

First,

Defendants

aver

that

Judge

Kessler’s

opinion

collaterally estops Plaintiff from disputing the validity of the
13

certifications.
to

blame

for

Defendants assert that, so long as they are not
Plaintiff’s

failure

in

the

Winmar

litigation,

Plaintiff is “bound by the factual conclusion made by Judge
Kessler that the certified Payment Applications were reliable
and

the

Winmar.”

best

evidence

of

the

amount

(ECF No. 91, at 49).

of

work

performed

by

Collateral estoppel bars a

subsequent court from revisiting the “determination of an issue
of fact or law when (1) the issue is actually litigated and (2)
determined by a valid, final judgment on the merits; (3) after a
full and fair opportunity for litigation by the parties or their
privies;

(4)

under

circumstances

essential to the judgment.”

where

the

determination

was

Modiri v. 1342 Restaurant Group,

Inc., 904 A.2d 391, 394 (D.C. 2006).
Defendants acknowledge, as the court pointed out in its
memorandum opinion on Defendants’ motion to dismiss, that use of
collateral estoppel would be unfair if “an unfavorable judicial
decision allegedly wrought by their legal malpractice can be
used as a shield against a legal malpractice claim.”
15, at 11).

(ECF No.

Because the evidence now shows that their trial

conduct was not the cause of the unfavorable decision below,
however,

they

now

contend

that

the

court’s

findings

that

certifications were reliable means that Plaintiff cannot dispute
that the Architect was not acting negligently when it made them.
(ECF No. 102, at 24).

14

Although

Judge

Kessler’s

opinion

refers

to

the

certifications as “reliable and accurate evidence of the work
completed,” her analysis demonstrates that she was evaluating
the certifications relative to the other evidence in front of
her and in the absence of facts about the Architect’s process.
As this court found in its prior opinion, “Judge Kessler only
presumed

that

the

Architect’s

(ECF No. 15, at 10).

certifications

were

credible.”

She determined that the certified payment

applications were the best evidence presented to that court but
made no determination as to whether the certifications were made
with reasonable care.

Nor was she in any position to do so

without ever hearing from the Architect; as her opinion noted,
she

found

it

perplexing

that

neither

party

ever

called

the

Architect as a witness.

Winmar, 741 F.Supp.2d at 182 n.17.

Judge

that

Kessler

determined

the

certifications

were

valid

under the Contract despite the Architect’s rescissions, with the
caveat that Plaintiff “offered no evidence at trial showing how
the Architect arrived at the decision to certify the Payment
Applications.”
that

Plaintiff

See id. at 182.
might

have

She specifically pointed out

rebutted

the

accuracy

of

the

certifications “by presenting evidence that they were prepared
incorrectly,” but that it failed to do so.

Id.

Had Plaintiff

filed a claim in the suit against the Architect, the parties
might have presented evidence – like that of Plaintiff’s expert
witness here - rebutting Judge Kessler’s assumption that “if
15

there was any bias in the Architect’s decision to certify the
Payment Applications, . . . it would have been in [Plaintiff’s]
favor.”

Id. at 181.

Judge Kessler’s opinion thus does not

preclude consideration of Plaintiff’s evidence on the issue of
“how the Architect arrived at the decision to certify.”
Second, Defendants contend that finding the Architect to
have

breached

its

duty

would

be

logically

inconsistent

with

Judge Kessler’s holdings that the certified Payment Applications
were the best evidence.
of

Defendants’

This argument is simply a reformulation

collateral

estoppel

argument.

Because

the

parties did not present Judge Kessler with any evidence as to
the

Architect’s

certification

certifications

at

sufficient

create

to

face
a

process,

value.
dispute

she

accepted

Plaintiff’s
of

fact

over

those

evidence

is

whether

the

Architect breached its duty of care.
b.

Proximate Cause and The Architect’s Rescissions

As noted above, proximate cause is typically a question for
the jury and should only be determined on summary judgment where
“it is absolutely clear.”

Smith v. Hope Village, Inc., 481

F.Supp.2d 172, 185 (D.D.C. 2007).
Architect’s

breach

was

distinguishable, injuries.

the

Plaintiff contends that the

cause

of

two

related,

but

First, the Architect’s certification

established a debt that Plaintiff was obligated to pay to Winmar
under the Contract.

According to Plaintiff, the work certified

in the Payment Applications was not completed, and therefore the
16

Architect’s negligent certification put them in the untenable
position of paying Winmar money it had not earned or breaching
its contract by not making payments that had been certified.6
Plaintiff argues that its ensuing breach of contract caused the
Winmar case, and, therefore, the Architect is liable for all
costs connected to the litigation.

Then, the certification by

the Architect was accepted by Judge Kessler as the best evidence
in the Winmar litigation, which Plaintiff argues caused it a
second harm, higher damages than it would have had to pay had
the Payment Applications not been certified.

Plaintiff’s expert

testified that, but for the certifications, Winmar would have
owed Plaintiff money – rather than vice versa - when Plaintiff
terminated the Contract.

(ECF No. 99-85, at 4).

This evidence

is sufficient to create a dispute of fact as to whether the
Architect’s breach was the proximate cause of its damages.
Defendants argue that any negligence by the Architect was
not

the

proximate

cause

of

Plaintiff’s

Architect rescinded the certifications.
Defendants

maintain

that

“even

if

injuries

because

the

(ECF No. 91, at 43-44).
the

certifications

were

improvidently issued in the first place, they could not have
injured Plaintiff[]” because the rescissions would have undone
any harm.

(Id.).

According to Defendants, Judge Kessler erred

by holding that the rescissions were not authorized under the

6

Plaintiff also alleges to have suffered
making the single payment that it did make.
17

an

injury

by

Contract, which they would have proven on appeal had Plaintiff
not settled the suit.
appellate

court

had

See Winmar, 741 F.Supp.2d at 182.
honored

the

rescissions,

If the

they

aver,

Plaintiff would not have suffered any injury.
Defendants have not shown that it is absolutely clear that
the Architect did not cause harm to Plaintiff.

First, even if

Judge Kessler was wrong about the Contract and the rescissions,
Plaintiff has argued that the certifications caused the Winmar
litigation.

Put another way, the litigation, and the costs

accompanying

it,

were

an

injury

caused

by

the

Architect

no

matter its outcome – and, in turn, regardless of Judge Kessler’s
interpretation of the Contract.

As Plaintiff points out, the

rescissions came well after the three day window it had to make
the

payments

or

else

be

Defendants knew well.
rescission

may

have

in

breach

of

the

Contract,

(See ECF No. 99, at 9-10).
been

an

effort

to

“reduce

a

fact

In short,
a

client’s

damages, [but does] not necessarily prove that the [] negligence
did not injure the client.”

Knight v. Furlow, 553 A.2d 1232,

1235 (D.C. 1989).
Moreover, there is also a dispute of fact as to whether
Judge

Kessler

Although

erred

Defendants

in
are

her

interpretation

correct

that

the

of

the
Claims

Contract.
process

articulated in Section 4 of the Contract gives the Architect the
power to demand “a response with supporting data from the other
party” and to “approve the Claim” (ECF No. 91-6, at 20-21),
18

Defendants have not proven that the Architect was responding to
a

Claim

under

the

Contract.

The

Architect

rescinded

its

certification of the payments on January 5, 2006 (ECF No. 9921), more than a month before Plaintiff sent its claim letter to
the

Architect

on

February

24.

(ECF

No.

91-13).7

If

the

Architect rescinded outside of the claims process, it could only
have

done

reasons

so,

for

as

Judge

rescission

Kessler
of

a

also

not

clear

whether

for

previously

one

issued

of

the

valid

certification

(See ECF No. 91-7, at 2-3).8

articulated in Section 9.5.1.
is

held,

a

claim

could

be

made

after

It
the

7

Although Judge Kessler referred to this as a “formal
claim,” there may be some ambiguity even in the letter. Winmar,
741 F.Supp.2d at 177.
The letter references Sections 4.3-4.4,
the Claims sections, and Section 4.2.11 of the Contract, which
gives the Architect power to “decide matters concerning
performance under and requirements of the Contract.” (91-6, at
19).
Plaintiff had already terminated the Contract for
convenience at the time of the letter, which would have
triggered Section 14.4.3’s requirement that Winmar was “entitled
to receive payment for work executed,” which, in turn, might
have required the Architect’s review under 4.2.11 as opposed to
4.3 or 4.4.
8

In a footnote in their reply brief, Defendants also argue
that the rescissions were valid under Section 9.5.1.4, which
permits rescission because of “reasonable evidence that the Work
cannot be completed for the unpaid balance of the Contract Sum.”
(ECF No. 102, at 22).
In the rescission letter, the Architect
made no reference to concerns about completing the project on
budget, but Defendants argue that the Architect’s reference to a
$140,000 overcharge meant that “the Work clearly could not be
completed ‘for the unpaid balance.’”
(Id.)
They offer no
evidence to support this contention other than a vague response
from Plaintiff’s expert that such a discrepancy was “possibly a
basis for rescission” (ECF No. 102-2, at 144 (emphasis added)),
and thus have not shown that there is no material dispute over
whether the rescission was valid under the provisions of Section
9.5.1.
19

termination of the Contract.

(See, e.g., ECF No. 91-6, at 19

(Section 4.3.3. requiring that the contractor proceed diligently
and the owner continue to make payments during the pendency of a
claim, which at least suggests that claims would be occurring as
part of an ongoing contract)).

If the rescissions were not

based on a claim, Judge Kessler’s opinion not to consider them
valid under the Contract could have been correct.9

Given all of

these disputed facts, Defendants have not shown that they are
entitled to summary judgment in spite of Plaintiff’s evidence of
a claim against the Architect.
2.

Plaintiff’s Instructions Not to Sue

Defendants next argue that, to the degree that Plaintiff
had a case against the Architect, it specifically directed them
not to sue.

They contend that, although it was obvious that

Plaintiff had a potential cause of action against the Architect,
Plaintiff told them not to sue the Architect, presumably because
of

their

ongoing

working

relationship

–

Plaintiff

and

the

Architect were working on numerous projects together worldwide
9

It is also unclear that the certification would not have
done harm, even if Judge Kessler had accepted the rescissions.
Judge Kessler may have simply found the rescissions less
persuasive than the certifications as to the value of the work
done.
Judge Kessler’s opinion was based on two separate
theories of damages, one for breach of contract and one for
restitution for work done.
In an effort to determine how much
work was actually done, then, she might have considered the
certifications
as
evidence
even
if
they
had
not
been
contractually binding, and, in turn, might have given the
precise numeric information in the certifications more weight
than
the
rescissions,
which
were
based
only
on
vague
“discrepancies” and missing documentation.
20

at the time.

(ECF No. 91, at 41).

They point to a declaration

from Gary Napier, the primary on-site coordinator for Plaintiff,
who specifically stated that Plaintiff made the decision not to
sue the Architect and communicated that decision to Defendants.
(Id.).
Plaintiff

disputes

the

veracity

of

this

instruction,

pointing out that Mr. Napier’s declaration does not identify who
exactly

gave

this

instruction

to

individual had authority to do so.

whom,

and

whether

that

(ECF No. 99, at 31-32).

Moreover, it argues that Defendants appear to be relying on
conversations that do not account for the changes in the Winmar
dispute.

It points to testimony from Mr. Napier stating that

the decision he referred to was made at a meeting in June 2006.
(See, e.g., ECF No. 99-9, at 14).

In June 2006, before QNB had

initiated the Winmar litigation, Plaintiff and Defendants had
agreed not to sue the Architect, or Winmar for that matter,
because

they

believed

the

amount

at

stake

was

only

about

$80,000, which was owed to them, and the cost to pursue it might
have been “lost in legal fees.”
13).

(ECF Nos. 99, at 27; 99-9 at

When Winmar’s third party claim against Plaintiff occurred

in November 2006, Plaintiff went from potentially being owed
$80,000, to potentially owing more than $1.7 million.
argues

that

Defendants

had

a

duty

to

reevaluate

options and their legal advice at that time.
27).

Plaintiff
Plaintiff’s

(ECF Nos. 99, at

Defendants attempt to rebut this notion by pointing to a
21

treatise on legal malpractice, which states that the extent of a
duty “derives from the circumstances, being the subject matter
of

the

retention

and

the

parties’

agreement.”

1

Ronald

E.

Mallen & Allision M. Rhodes, Legal Malpractice, § 8:5 (2016).
But as Plaintiff points out, the subject matter of the retention
changed

when

they

went

from

potential

plaintiffs

in

a

suit

against Winmar to defendants in a litigation with much larger
consequences.
re-assess

Defendants’ obligation was not to “continually

whether

a

claim

should

be

brought

against

the

Architect” (ECF No. 102, at 18), but when Plaintiff was sued and
it hired Defendants to defend it against the Winmar suit, they
had a duty to advise Plaintiff on how to mitigate its losses
under the circumstances.

A reasonable jury could find that this

duty would include an obligation to advise Plaintiff that a suit
against the Architect was in its best interest.
Defendants make a last ditch effort to argue that they did
advise Plaintiff to sue by pointing to a statement made to the
mediator in the Winmar litigation in which they noted that “the
Architect failed to perform many of its obligations under the
Contract, . . . [but] no action or claim ha[d] been asserted
against the Architect in connection with the Contract,” which
they say called to Plaintiff’s attention the fact that claims
against the Architect had not been asserted.
6).

(ECF No. 91-30, at

The question is not whether Plaintiff was aware that it

might have had a claim against the Architect, but rather whether
22

Defendants advised Plaintiff to pursue such a claim or discussed
the possibility with them in the way that a reasonable attorney
would.

Ambiguous

addressed

to

third

statements
parties

made
are

in

attachments

insufficient

to

that
show

are
that

Defendants are entitled to summary judgment.10
3.

Statute of Limitations

Finally, Defendants assert that even if Plaintiff had a
valid

claim

against

the

Architect,

their

failure

to

advise

Plaintiff to sue was not the cause of its failure to sue because
Plaintiff hired new counsel within the statute of limitations
period of its claims against the Architect.

Defendants contend

that the three-year statute of limitations had not run when new
counsel began representing Plaintiff in July 2012.
at 56).

(ECF No. 91,

They base this argument on the premise that Plaintiff

“suffered no injury from the Architect’s alleged certification
errors, and thus no legal harm occurred, until Judge Kessler
chose, in preference to all of the other evidence offered at
trial, to rely upon the Architect’s rescinded certifications as
proof of the amount of work that Winmar had completed prior to
the termination for convenience.”
10

(Id. at 55).

According to

Defendants further point to the statement submitted by
Winmar to the mediator, which stated that “if [Plaintiff] had a
problem with their Architect, it would seem as though they might
need to be a party to this action or, at least seek some sort of
redress against the Architect.”
(ECF No. 91-31, at 8).
Although this type of statement seems closer to actual advice
than Defendants’ own statement, it was made by Winmar, an
opposing party, to the mediator, and thus has no bearing on what
Defendants advised Plaintiff to do in this matter.
23

Defendants, then, the limitations period did not begin to run
until, “at the earliest, those findings of fact were made on
September 29, 2010, or, at the latest, upon issuance of final
judgment on March 13, 2012.”

(Id. at 56).

Defendants cite to

Wagner v. Sellinger, 847 A.2d 1151 (D.C. 2004), to support their
contention that a claim does not accrue in a malpractice suit
until the plaintiff had suffered actual injury by losing the
underlying

suit.

There,

the

District

of

Columbia

Court

of

Appeals stated:
If that potential is not realized until
later — if its occurrence depends on “a
contingent or future event” — then the
injury is not sustained until the contingent
or future event occurs. . . . That is to
say, until the lawsuit is resolved (either
by verdict or ruling in court or by
settlement), the injury remains uncertain or
inchoate.
Id. at 1156.

In Wagner, the defendant lawyers represented the

plaintiff in a medical malpractice suit, but were fired during
the suit.

Id. at 1153.

The defendants’ discovery efforts had

apparently been woefully inadequate, but the court held that
“[n]o injury allocable to Sellinger’s apparent negligence could
be ascertained unless and until the Wagners — using competent
counsel to resurrect their medical malpractice claim — failed
nonetheless

to

recover

damages

from

the

medical

defendants.”

Id. at 1153, 1156.
Wagner dictates that Plaintiff here could not have brought
a claim against Defendants until their errors caused injury,
24

which, indeed, depended on the outcome of the case.

It does

not, however, suggest that Plaintiff could not have brought a
potential
against

negligence
the

suit

lawyer

in

against

Wagner

the

came

Architect.
to

fruition

The

claim

during

the

underlying litigation; as the court said, “Typically, therefore,
a potential — not actual — injury has occurred when a client
claims

that

an

attorney

has

mishandled

a

lawsuit

still

in

progress by failing to take appropriate discovery or by making
some other error that, however egregious, does not conclude the
lawsuit.”

Id. at 1156 (emphasis added).

Here, the Architect’s

negligence occurred prior to the lawsuit, and allegedly, was the
cause

of

Winmar’s

suit

against

Plaintiff.

This

case

is

therefore much more like the ones “when an attorney negligently
drafts a document . . . that fails to protect the client’s
interests,” under which, the Wagner court stated, an injury is
realized at the time of the error.

Id. at 1157 n.9.

In cases where the negligence is the alleged cause of the
underlying suit, the District of Columbia courts have clearly
stated that the “attorney’s fees and costs expended as a result
of [the negligent act] constitute legally cognizable damages for
purposes of stating a claim.”
1235

(D.C.

1989).

As

the

Knight v. Furlow, 553 A.2d 1232,
Knight

court

clarified,

where

litigation ensues because of a third party’s negligent act, an
injury

has

occurred,

even

if

the

litigation

is

“ultimately

successful for the client, [if it] could have been avoided by
25

adherence to a proper standard of care.”

Id.

Thus, while

success in the litigation “undoubtedly will reduce a client’s
damages, it will not necessarily prove that the [] negligence
did not injure the client.”
limitations,

then,

Id.

Plaintiff

For the sake of the statute of

would

have

suffered

an

alleged

injury due to the Architect’s negligent certifications when it
began to incur legal fees as a result of Winmar’s third-party
claim against it, which was filed on November 9, 2006.

That

claim was time-barred by Novemeber of 2009, well before new
counsel

took

over,

and

Defendants

cannot

justify

summary

judgment in their favor based on the appointment of new counsel
in 2012.
IV.

Conclusion
For the foregoing reasons, the motion for summary judgment

filed by Defendants will be granted in part and denied in part.
A separate order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

26