Al Jazeera International v. Dow Lohnes PLLC et al

Filing 15

MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 9/2/14. (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 legal
malpractice case is the motion to dismiss filed by Defendants
Dow Lohnes PLLC and Leslie H. Wiesenfelder.

(ECF No. 19).

The

issues have been fully briefed, and the court now rules, no
hearing being deemed necessary.

Local Rule 105.6.

For the

following reasons, Defendants’ motion will be denied.
I.

Background1
In 2005, Plaintiff Al Jazeera International (“AJI”) entered

into

a

construction

television

studio

Contract”).

contract
and

Janson

with

offices

Design

architect for the project.

Group

Winmar,

in

Inc.

Washington,

(“the

to

build

D.C.

Architect”)

a

(“the

was

the

The Contract established a payment

process under which Winmar would submit periodic invoices for
review by the Architect as AJI’s agent.

If the Architect was

satisfied,

of

to

AJI.

The following facts are set forth in the complaint.
No. 1).

(ECF

1

it

would

issue

certificates

payment

Between

October

and

December

invoices totaling $1,838,140.
these four invoices.

2005,

Winmar

submitted

four

The Architect certified each of

AJI alleges that the Architect breached

the duty of care owed to it by not taking reasonable steps to
determine whether the invoices were accurate and complete.
paid

only

Winmar

one

sent

of

AJI

the

a

invoices,

notice

of

in

the

default

amount

and

of

AJI

$474,677.

direction

to

cure

alleging that AJI was in material breach of the Contract for
failing to pay the remaining certified invoices.
construction

manager

to

resolve

the

disputed

AJI engaged a
billing

issues.

The construction manager concluded that Winmar overbilled AJI.
Consequently, AJI made no further payments.

The Architect sent

a letter to Winmar, rescinding its certification for the three
remaining

invoices,

stating

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made in error and were withdrawn on account of “a number of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 supporting documentation.”

The Architect

asked Winmar for additional documents supporting the invoices,
which

Winmar

refused

to

provide.

Thereafter,

pursuant

to

Section 14 of the Contract, AJI terminated the contract for
convenience.
On July 24, 2006, AJI’s bank, Qatar National Bank, filed
suit against Winmar in the United States District Court for the
District

of

Columbia.

Winmar

filed
2

a

third-party

complaint

against AJI, alleging that AJI breached the Contract by not
making payment pursuant to the Architect’s certifications.

AJI

retained Defendants to represent it and filed a counterclaim
against Winmar, denying any liability and asserting that AJI had
overpaid

Winmar

pursuant

to

provisions of the Contract.

the

termination

for

convenience

In its answer, Winmar alleged that,

prior to the time AJI terminated the Contract for convenience,
AJI had materially breached the Contract and, therefore, Winmar
was entitled to the full amount of every invoice certified by
the

Architect.

material

AJI

issue

that

regarding

the

Despite

this

certification.
investigate

alleges

the

Architect’s

this

raised

accuracy
fact,

role

in

of

a

substantial

the

Architect’s

Defendants
the

failed

events,

whether the Architect breached its duty of care.

to

including

By ignoring

Winmar’s allegations regarding the Architect, Defendants left
AJI with no factual defense to Winmar’s principal claim: i.e.,
that the certifications were prima facie evidence of the amount
AJI

owed

Winmar.

Consequently,

Defendants

were

unprepared at trial, leaving AJI greatly exposed.
began

on

June

30,

2010.

certifications,

but

Defendants

September

29,

2010,

the

Winmar

continually

offered

district

court

no

completely
The trial
raised

rebuttal.

issued

a

the
On

memorandum

opinion and order, granting judgment in favor of Winmar and
against AJI.

Winmar, Inc. v. Al Jazeera Int’l, 741 F.Supp.2d
3

165 (D.D.C. 2010).

Judge Gladys Kessler concluded that the

Architect’s certifications were the best evidence of the work
performed.

The court went on to note that “Al Jazeera offered

no evidence at trial showing how the Architect arrived at the
decision to certify the Payment Applications. . . .
absence

of

neglected

any
its

evidence
duties

from
under

Al

Jazeera

the

that

Contract

in

the

In the
Architect

making

the

certification decisions, the certified Payment Applications are
the most reliable evidence of the services performed by Winmar
in the periods covered.”
AJI)).

(ECF No. 1 ¶ 36 (emphasis added by

Judge Kessler also stated that she “has never been able

to understand why neither party ever called the Architect to
testify.”
and

(Id. ¶ 37).

against

AJI

for

Judgment was granted in favor of Winmar
$1,472,625.50.

Defendants

appealed

the

judgment to the United States Court of Appeals for the District
of Columbia Circuit.

While that appeal was pending, AJI decided

to settle the dispute for $2,000,000 rather than run the risk of
an unfavorable outcome on appeal.2
On September 19, 2013, Plaintiff filed a complaint in this
court

for

legal

malpractice,

citing

2

diversity

jurisdiction.

Beyond the $1.4 million judgment, AJI 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

(ECF

No.

1).3

Plaintiff

alleges

that

Defendants,

as

AJI’s

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

defense

to

Winmar’s

claims

against

AJI.

According

to

Plaintiff, Defendants breached this duty by ignoring Winmar’s
allegations regarding the Architect’s certificates of payment
and 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, AJI would
have prevailed in the Winmar litigation.

In the alternative,

Plaintiff maintains that Defendants breached the duty of care by
failing to advise AJI to join the Architect as a third-party
defendant in the Winmar litigation.

Defendants’ breach left AJI

with no defense to Winmar’s claims regarding the Architect’s
payment certifications.
On November 18, 2013, Defendants filed a motion to dismiss.
(ECF No. 7).

On December 31, 2013, Plaintiff opposed the motion

(ECF No. 10), to which Defendants replied on January 28, 2014
(ECF No. 13).

3

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.
5

II.

Standard of Review
The purpose of a motion to dismiss under Rule 12(b)(6) is

to test the sufficiency of the complaint.
Charlottesville,

464

F.3d

480,

483

(4th

Presley v. City of
Cir.

2006).

A

plaintiff’s complaint need only satisfy the standard of Rule
8(a), which requires a “short and plain statement of the claim
showing that the pleader is entitled to relief.”
8(a)(2).

Fed.R.Civ.P.

“Rule 8(a)(2) still requires a ‘showing,’ rather than

a blanket assertion, of entitlement to relief.”
v. Twombly, 550 U.S. 544, 555 n.3 (2007).

Bell Atl. Corp.

That showing must

consist of more than “a formulaic recitation of the elements of
a cause of action” or “naked assertion[s] devoid of further
factual enhancement.”

Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (internal citations omitted).
At this stage, all well-pleaded allegations in a complaint
must be considered as true, Albright v. Oliver, 510 U.S. 266,
268 (1994), and all factual allegations must be construed in the
light

most

favorable

to

the

plaintiff.

See

Harrison

v.

Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir.
1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134
(4th Cir. 1993)).

In evaluating the complaint, unsupported legal

allegations

not

need

be

accepted.

Revene

Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989).

v.

Charles

Cnty.

Legal conclusions

couched as factual allegations are insufficient, Iqbal, 556 U.S.
6

at 678, as are conclusory factual allegations devoid of any
reference to actual events, United Black Firefighters v. Hirst,
604 F.2d 844, 847 (4th Cir. 1979).
III. Analysis4
“To prove legal malpractice under D.C. law, a plaintiff
must (a) show an applicable standard of care; (b) prove a breach
of

that

between

standard;
the

complaint.”

and

violation

(c)

demonstrate

and

the

a

harms

causal

relationship

enumerated

in

the

Jones v. Lattimer, --- F.Supp.2d ----, 2014 WL

869470, at *3 (D.D.C. Mar. 6, 2014) (quoting In re Estate of
Curseen, 890 A.2d 191, 193 (D.C. 2006) (internal quotation marks
omitted)).
first,

Plaintiff alleges legal malpractice in two forms:

Defendants’

Architect,

and

failure

second,

if

to
it

advise
was

not

Plaintiff
advisable

to

sue

the

to

sue

the

Architect, Defendants’ failure to interview, depose, or call the
Architect as a witness in the Winmar litigation.

4

When choosing the applicable substantive law while
exercising diversity jurisdiction, a federal district court
applies the choice of law rules of the forum state. See Klaxon
Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 496 (1941). For
tort claims such as this one for legal malpractice, Maryland
generally adheres to the lex loci delecti commissi, or place of
harm, principle to determine the applicable state’s substantive
law.
Hauch v. Connor, 295 Md. 120, 123-24 (1983).
Defendants
submit that the harm occurred when they either failed to call
the Architect as a witness in the Winmar litigation in the
District of Columbia district court, or failed to sue the
Architect in the same court.
Plaintiff does not dispute this
contention. Therefore, the situs of the tort is the District of
Columbia and its substantive law applies to the claims at issue.
7

A.

Failure to Sue the Architect

Defendants argue that Plaintiff has not pled that AJI had a
viable claim against the Architect.

District of Columbia law

requires a plaintiff pursuing a claim for legal malpractice to
demonstrate

that

he

had

a

negligently failed to pursue.

viable

claim

that

the

attorney

Niosi v. Aiello, 69 A.2d 57, 60

(D.C. 1949) (“The rule to be applied in a case where an attorney
is accused of negligence in the conduct of litigation is that
such attorney is not liable for negligence if, notwithstanding
the negligence, the client had no cause of action or meritorious
defense as the case may be.”).

As explained in Macktal v.

Garde, 111 F.Supp.2d 18, 21 (D.D.C. 2000):
The clear rule of Niosi and its progeny is
that
in
order
to
maintain
a
legal
malpractice
action
in
the
District
of
Columbia, plaintiff must demonstrate not
only that the alleged malpractice was the
proximate cause of the injury suffered, but
also that the action for which the plaintiff
had sought the attorney’s services was a
good cause of action.
Thus the Court must
evaluate the so-called “case within the
case” to determine if it was a good cause of
action. If the case within the case was not
a good cause of action, then the claim of
professional malpractice must fail.
This
standard requires a plaintiff to demonstrate
that
his
underlying
case
would
have
succeeded absent the alleged malpractice.
Plaintiff contends that it has pled sufficiently that it
had a good cause of action against the Architect for breach of
its

duty

of

care

to

Plaintiff
8

in

reviewing

and

certifying

invoices

submitted

by

Winmar.

According

to

Plaintiff,

the

Architect breached this duty by not taking reasonable steps to
determine

whether

Winmar’s

certifying

them

December

on

invoices
7,

2005.

were

accurate

Plaintiff

before

justifiably

relied on the certifications in making the $474,677 payment on
December 12, 2005 and, but for the certifications, would not
have

made

the

payment.

The

Architect

certifications were in error.

later

admitted

these

The certifications led directly

to the litigation with Winmar, in which Judge Kessler found AJI
to be in material breach of the Contract for not making the
certified payments.
1.

Issue Preclusion

Defendants

contend

that

Judge

Kessler’s

decision

determining that the certifications were credible and reliable
precludes

these

claims.

Issue

preclusion

is

an

affirmative

defense which the defendant bears the burden of establishing.
Consequently, “a motion to dismiss filed under Federal Rule of
Civil

Procedure

12(b)(6),

.

.

.

generally

cannot

reach

the

merits of an affirmative defense[, except] in the relatively
rare

circumstances

where

facts

sufficient

to

rule

affirmative defense are alleged in the complaint.”
Praxair, Inc., 949 F.3d 458, 464 (4th Cir. 2007).

on

an

Goodman v.
In other

words, “[i]n the limited circumstances where the allegations of
the complaint give rise to an affirmative defense, the defense
9

may

be

raised

under

Rule

12(b)(6),

but

only

if

it

clearly

appears on the face of the complaint” and any other documents
proper for consideration.

Richmond, Fredericksburg & Potomoac

R.R. Co. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993).

“[W]hen

entertaining a motion to dismiss on the ground of res judicata,
a court may take judicial notice of facts from a prior judicial
proceeding

when

issue of fact.”

the

res

judicata

defense

raises

no

disputed

Brooks v. Arthur, 626 F.3d 194, 200 (4th Cir.

2010).
The elements that must be fulfilled for issue preclusion to
bar an issue or fact are as follows:
The proponent must demonstrate that (1) the
issue or fact is identical to the one
previously litigated; (2) the issue or fact
was
actually
resolved
in
the
prior
proceeding; (3) the issue or fact was
critical and necessary to the judgment in
the prior proceeding; (4) the judgment in
the prior proceeding is final and valid; and
(5) the party to be foreclosed by the prior
resolution of the issue or fact had a full
and fair opportunity to litigate the issue
or fact in the prior proceeding.
In re Microsoft Antitrust Litig., 3355 F.3d 322, 326 (4th Cir.
2004).

Defendants have not demonstrated that issue preclusion

applies here.

Judge Kessler only presumed that the Architect’s

certifications were credible.

Numerous times she spoke of the

Architect’s certifications as creating a rebuttable presumption
of the work Winmar performed, a presumption that Defendants - as

10

Al

Jazeera’s

counsel

-

never

attempted

to

rebut,

which

constitutes one of the theories of alleged legal malpractice.
See Winmar, 741 F.Supp.2d at 182 (“Al Jazeera bears the burden
of

rebutting

Applications’

the

presumption

accuracy

prepared incorrectly.”)

by

of

presenting

the

certified

evidence

that

Payment

they

were

By Defendants’ logic, an unfavorable

judicial decision allegedly wrought by their legal malpractice
can be used as a shield against a legal malpractice claim.

Not

surprisingly, Defendants do not provide a case utilizing issue
preclusion in this fashion and it is not appropriate for a Rule
12(b)(6) motion.
B.

The Architect’s Prompt Correction

Defendants’ second argument is that Plaintiff has no viable
claim against the Architect because the Architect properly and
promptly

corrected

rescinding

the

litigation.

any

error

certifications

it
long

may

have

before

made
Winmar

by

timely

instituted

Defendants acknowledge that Judge Kessler rejected

the Architect’s rescission, but argue that her conclusion that
the Contract did not permit such a rescission was erroneous.
Defendants contend that those rescissions were valid per the
terms

of

the

Contract,

which

provides

that

a

claim

may

be

submitted to the Architect to settle disputes between Al Jazeera
and Winmar arising out or relating to the Contract, including
those alleging error by the Architect.
11

Defendants argue that

Judge Kessler’s conclusion that the Architect’s rescission was
without

legal

force

because

it

could

not

require

supporting

documentation after certifying the invoices is contradicted by
the clear terms of the Contract.

Had Judge Kessler interpreted

the Contract correctly, according to Defendants, she would have
honored the rescissions and AJI would have suffered no injury
even

if

the

certifications.

Architect

had

improvidently

Defendants

represent

that

they

issued

the

raised

this

issue on appeal on behalf of AJI, but AJI abandoned that appeal
in light of settlement.
This

argument

depends

on

materials

not

included

in

the

complaint and while a court can take judicial notice of court
records for some purposes, Defendants’ contentions go too far.
Defendants ask the court on a Rule 12(b)(6) motion to go beyond
merely noting Judge Kessler’s decision to determine whether it
precludes Plaintiff’s claims, but engage in essentially a de
novo review of that decision.

Such a review is not appropriate

at the motion to dismiss stage.5

5

Relatedly, Defendants’ argument concerning statute of
limitations will be rejected at this time.
The statute of
limitations is an affirmative defense that should only be
employed to dismiss claims pursuant to Rule 12(b)(6) when it is
clear from the face of the complaint that the claims are time
barred.
See Eniola v. Leasecomm Corp., 214 F.Supp.2d 520, 525
(D.Md. 2002).
Unlike a typical statute of limitations
situation, where the various dates are part of the factual
pleadings, here the question of when the limitations period
begins to run depends on whether Plaintiff was injured by the
12

C.
Failure to Interview, Depose, or Call the Architect as
a Witness
1.

Failure to Plead with Particularity

Plaintiff argues that it was also legal malpractice for
Defendants not to interview, depose, or call the Architect as a
witness in order to discover whether a representative of the
firm

would

have

had

Plaintiff’s defense.

any

testimony

that

would

have

aided

Defendants argue that even assuming they

breached their duty, Plaintiff has failed to plead causation
sufficiently: namely that the Architect’s testimony would have
changed Judge Kessler’s decision.

A plaintiff pursuing a legal

malpractice claim must show that the outcome of the underlying
litigation

would

have

been

more

counsel’s alleged negligence.
4 (D.D.C. 2011).

favorable

to

it

absent

its

Hickey v. Scott, 796 F.Supp.2d 1,

Defendants contend that Plaintiff’s allegation

“[b]ut for Defendants’ failure to depose or call the Architect
as a witness, AJI would have prevailed in the Winmar Litigation”
(ECF No. 1 ¶ 48) is conclusory and speculative, failing short of
demands of Fed.R.Civ.P. 8(a).

According to Defendants, it is

not enough to allege that it should have called a representative
of the Architect as a witness; Plaintiff must also allege that

Architect’s improper certifications or, alternatively, by Judge
Kessler’s decision relying on those certifications in computing
the amount Plaintiff owed to Winmar. That depends, at least in
part, on the soundness of Judge Kessler’s decision which, for
reasons discussed above, will not be considered at this stage.
13

the missing testimony would have changed the course of trial.
They assert that Plaintiff cannot make this allegation without
supplying the missing testimony, which it fails to do, and that
absent that testimony, the court is required to speculate as to
what the Architect would have said that would have changed the
judge’s mind.
Defendants’ arguments will be rejected.

Admittedly, the

causation argument here is more tenuous as it is built on a
series of suppositions: if Defendants would have interviewed the
Architect, they might have discovered that a representative of
the Architect would have been a favorable witness, which may
have

sufficiently

prevail.

convinced

Judge

Kessler

that

AJI

should

But given that Plaintiff’s other theory of malpractice

is not being dismissed, it is not appropriate to dismiss this
theory presently.
Defendants

point

to

Bigelow

v.

Knight,

737

F.Supp.

669

(D.D.C. 1990), in support of their position, but that case is
not analogous to the situation here.

In Bigelow, the plaintiff

alleged that his counsel failed to call two alibi witnesses and
failed to interview a third unnamed witness.

The district court

dismissed the complaint, finding that the
plaintiff essentially alleges only vague and
general failures of the defendant to locate
and interview witnesses who would have
“render[ed] suitable support for a defense.”
Plaintiff fails to identify what these
14

witnesses would have testified to and how
they would have supported a defense which
would
have
resulted
in
his
acquittal.
Accordingly, this Court rules that the
plaintiff has failed to assert a legally
cognizable
harm
which
is
an
essential
element of his claim and his complaint must
be dismissed.
Id. at 671.

This case can be distinguished on many grounds.

First, the court initially noted that the plaintiff failed to
allege the domicile and citizenship of the parties necessary to
establish subject-matter jurisdiction
the

court

found

jurisdiction,

all

Furthermore,
issues

as

the

did

subsequent

legal

of

his

had

was

on

by

were

dicta.

raised

these

his

criminal

of

counsel.

collateral

estoppel.

assistance

barred

Because

subject-matter

already

attack

ineffective

claim

have

conclusions

collateral

his

diversity.

not

plaintiff

alleging

Consequently,

it

Bigelow

part

conviction

that

via

Indeed, the few cases that have cited to Bigelow have used it
for

this

proposition.

See,

e.g.,

F.Supp.2d 31, 37-38 (D.D.C. 2013).

Brodie

v.

Jackson,

954

The one case to cite Bigelow

outside the collateral estoppel context concerned a motion for
summary judgment, not a motion to dismiss.

See Williams v.

Callaghan, 938 F.Supp. 46, 50 (D.D.C. 1996).

Finally, and most

importantly,

Bigelow

criminal

trial

causation

the

that

concerned
resulted

plaintiff

had

counsel’s
in

to

15

a

performance

conviction.

demonstrate

that

To

in

a

prove

but-for

his

counsel’s negligence, the outcome of his trial would have been
different:
convicted.

i.e., he would have been acquitted as opposed to
In

this

case,

by

contrast,

Defendants’

alleged

negligence concerning the Architect was the but-for cause of the
damages it was forced to pay following Judge Kessler’s ruling.
The inclusion of the Architect and the firm’s explanation of the
initial

certifications

and

the

decision

to

rescind

may

have

caused Judge Kessler to give less weight to those certifications
as evidence of the work done by – and therefore money owed to –
Winmar, possibly resulting in a lesser judgment against AJI.
See Seed Co., Ltd. v. Westerman, 840 F.Supp.2d 116, 125 (D.D.C.
2012)

(“Although

the

plaintiff

must

prove

causation,

this

element is usually a question for the jury and only an issue of
law if there are no facts or circumstances from which a jury
could

reasonably

proximate

cause

determine
of

injury.”

that

such

(citing

negligence

Bragg

v.

was

the

Owens-Corning

Fiberglas Corp., 734 A.2d 643, 648 (D.C. 1999))).
2.
No Testimony Would Have Plausibly Changed Judge
Kessler’s Decision
Defendants’ next argument is that the situation as alleged
by Plaintiff does not demonstrate that it is plausible that any
testimony

offered

by

Kessler’s decision.

the

Architect

would

have

changed

Judge

They first point out that Judge Kessler

decided not to credit the Architect’s rescissions based on a

16

conclusion of law, specifically the meaning of the Contract.
Defendants argue that that legal conclusion was erroneous and,
because Judge Kessler based most of her calculations on those
erroneous certifications, if she accorded the rescissions the
legal validity they were entitled to, AJI would have owed Winmar
nothing because Winmar did not submit any evidence at trial
regarding most of the work completed, instead relying on the
certifications.
Again,

this

argument

requires

parsing

Judge

Kessler’s

ruling which, for reasons outlined above, will not be done on a
motion to dismiss.
3.

The Decision is Entitled to Judgmental Immunity

Defendants
interview,

argue

depose,

“judgmental

that

or

the

call

immunity.”

strategic

the

The

decision

Architect

judgmental

is

not

to

entitled

to

immunity

doctrine

recognizes that an attorney is not liable for mistakes made in
the honest exercise of professional judgment.
Bank v. Ward, 100 U.S. 195 (1879).
adopted
Finnegan

the

judgmental

Henderson

LLP,

immunity
967

See Nat’l Sav.

District of Columbia law has
doctrine.

A.2d

662,

Biomet
666

Inc.

(D.C.

v.

2009).

“Essentially, the judgmental immunity doctrine provides that an
informed

professional

judgment

made

with

reasonable

care

skill cannot be the basis of a legal malpractice claim.”

and
Id.

This is not to say that a lawyer can never be held liable for
17

any of his actions in relation to a trial: non-liability for
strategic decisions “is conditioned upon the attorney acting in
good

faith

and

upon

an

informed

judgment

after

undertaking

reasonable research of the relevant legal principals and facts
of the given case.”

Id. (quoting Sun Valley Potatoes, Inc. v.

Rosholt, Robertson & Tucker, 133 Idaho 1, 5 (1999)).
Judgmental immunity is an affirmative defense.

See Jones,

2014 WL 869470, at *4 (“an attorney sued for legal malpractice
[may]

prevail

on

grounds

of

‘judgmental

immunity,’

upon

demonstrating ‘that (1) the alleged error is one of professional
judgment,

and

(2)

the

attorney

exercised

making his or her judgment.’ . . .

reasonable

care

in

[A]n attorney in a legal

malpractice suit must still prove that he or she ‘exercised
reasonable care.’” (quoting Biomet, 967 A.2d at 666)).

Facts

demonstrating that Defendants exercised reasonable care do not
appear on the face of the complaint; in fact, Plaintiff alleges
just the opposite.

Defendants are once again attempting to

adjudicate

more

an

issue

appropriate

for

a

summary

judgment

motion than the present motion to dismiss.
D.

Plaintiff Waived Its Claim By Settling the Case

Defendants’ final argument is that AJI’s settlement of the
Winmar

litigation

while

the

appeal

18

was

pending

waived

its

malpractice claim.6

Waiver, too, is an affirmative defense,

making it unlikely to appear on the face of a complaint.
Defendants cite to three cases – two from Ohio and one from
Florida

–

for

the

proposition

that

“the

settlement

of

the

underlying . . . case, while the appeal was pending, constituted
an abandonment of any claim that [plaintiff’s] loss resulted
from legal malpractice rather than judicial error.”

Pa. Ins.

Guar. Ass’n v. Sikes, 590 So.2d 1051, 1053 (Fla.App. 3 Dist.
1991); see also Estate of Callahan v. Allen, 97 Ohio App.3d 749,
752-53 (Ohio App. 4 Dist. 1994); Sawchyn v. Westerhaus, 72 Ohio
App.3d

25,

28-29

(Ohio

App.

8

Dist.

1991).

From

this,

Defendants argue that the proper vehicle for AJI to challenge
Judge Kessler’s unfavorable ruling was to pursue its appeal to
the D.C. Circuit, not to file a malpractice suit.
As Plaintiff points out, however, this principle is quite
limited and has never been adopted by the D.C. courts.

Courts

in both Ohio and Florida have subsequently pointed out that “a
legal malpractice claim is not barred when the attorney has
acted unreasonably or has committed malpractice per se.

When an

attorney has made an obvious error which seriously compromises
his client’s claim, and a settlement is on the table, the client
should

not

be

forced

to

forego

6

the

settlement

offer

as

a

The complaint acknowledges that Plaintiff abandoned its
appeal to the D.C. Circuit. (ECF No. 1 ¶¶ 40-42).
19

condition of pursuing the attorney for malpractice.”

E.B.P.,

Inc. v. Cozza & Steuer, 119 Ohio App.3d 177, 182 (Ohio App. 8
Dist. 1997); see also Eastman v. Flor-Ohio, Ltd., 744 So.2d 499,
502

(Fla.App.

opinion

5

reveals

Dist.
that

1999)
the

(“A

third

close

reading

district

of

the

recognized

Sikes

that

the

vital element presented by the facts in that case was that the
alleged error upon which the insurance company’s entire claim of
legal malpractice was based . . . turned out to be an error made
by

the

trial

court

which

would

have

been

corrected

had

the

appeal not been dismissed.”); Segall v. Segall, 632 So.2d 76, 78
(Fla.App. 3 Dist. 1993) (“We are unable to establish a brightline

rule

that

complete

appellate

review

of

the

underlying

litigation is a condition precedent to every legal malpractice
action.

To do so would, in many cases, violate the tenet that

the law will not require the performance of useless acts.”);
Crestwood Cove Apartments Bus. Trust v. Turner, 164 P.3d 1247,
1251-53 (Utah 2007) (analyzing cases invoking the abandonment
theory and finding that they were principally focused on issues
of

causation:

judicial
could

be

i.e.,

error,

not

made

that

the

harm

counsel
an

caused

to

negligence).

error

by

Judge

plaintiff
While
Kessler

an

was

from

argument

rather

than

Defendants’ negligence caused some of the damages, the failure
to interview the Architect – and the allegedly higher damage
amount that resulted from the failure to introduce the firm’s
20

testimony – nevertheless could have resulted from negligence by
Defendants.
losses

Consequently, based on Plaintiff’s allegations, the

sustained

for

failure

to

interview

the

Architect

are

attributable to Defendants.

See Monastra v. D’Amore, 111 Ohio

App.3d

8

296,

302

(Ohio

App.

Dist.

1996)

(“If

the

evidence

should show that Monastra’s defective representation diminished
D’Amore’s ability to reach a successful settlement or succeed at
trial, we see no reason why a waiver of that malpractice claim
should be implied by reason of the settlement.”).

As Defendants

have not shown conclusively that Plaintiff’s decision to settle
the case while on appeal waived its legal malpractice claim,
Plaintiff’s claims will proceed.
IV.

Conclusion
For the foregoing reasons, Defendants’ motion to dismiss

will be denied.

A separate order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

21