Title Jung v. Mundy, Holt & Mance
Argued May 11, 2004 Decided June 25, 2004
Subject Crime
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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 11, 2004 Decided June 25, 2004
No. 03-7092
BOW G. JUNG,
APPELLANT
v.
MUNDY, HOLT & MANCE, P.C. AND
REGINALD L. HOLT,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 02cv01421)
John S. Lopatto III argued the cause and filed the briefs
for appellant.
Reginald L. Holt argued the cause and filed the brief for
appellees.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Before: GINSBURG, Chief Judge, and SENTELLE and ROBERTS,
Circuit Judges.
Opinion for the Court filed by Circuit Judge ROBERTS.
ROBERTS, Circuit Judge: In this legal malpractice action,
the appellant sued attorneys for litigating against him
throughout a multi-faceted probate dispute, causing him to
incur legal fees. According to the appellant, the attorneys
had a duty not to act adverse to his interests, and their
litigation constituted a conflict of interest. The district court
granted summary judgment for the attorneys, because the
appellant -- after learning of the conflict of interest -- waited
beyond the three-year limitations period for malpractice ac-
tions before filing suit.
We reverse. The litigation brought by the attorneys, if
wrongful as alleged, constituted a continuing tort. Under
District of Columbia law, the appellant may pursue claims
``for injuries attributable to the part of the continuing tort
that was committed within the limitations period immediately
preceding the date on which suit was brought.'' Beard v.
Edmondson & Gallagher, 790 A.2d 541, 548 (D.C. 2002).
I. Background
The roots of this real-life Bleak House saga doubtless
stretch further back in time, but the precipitating event was
the death of Lew Gin Gee Jung (Mother Jung) in January
1995. Mother Jung was survived by five children: three
daughters, Fay Lee, Yok Jung (Yok), and May Jung (May);
and two sons, Bow Jung (Bow) and Wee Jung (Wee). After
her death, myriad disputes between Bow, May, Yok, and Wee
(Fay Lee did not arrive on the scene until later) plunged the
family into nine years of bitter litigation (so far) over the
estate and related matters.
This case, one of a half-dozen arising in the wake of Mother
Jung's death, concerns Bow's claims against appellees Regi-
nald L. Holt and Mundy, Holt & Mance, P.C. (collectively
attorneys), who had been engaged by Mother Jung for estate
planning. Wendell Robinson -- Mother Jung's son-in-law
3
and May's husband -- worked for the Mundy, Holt & Mance
law firm as a law clerk. After meeting with Mother Jung on
more than one occasion, Robinson drafted multiple versions of
her will, culminating in a final draft that she was allegedly
supposed to sign at a meeting in the summer of 1994. In that
draft, Mother Jung described Bow as ``my son,'' appointed
him as an alternate Personal Representative, and named him
as a beneficiary. Final Draft of Will at 2, 4. The draft will
made no mention of May, Robinson's wife. Mother Jung did
not sign the final draft of her will at the scheduled meeting,
because Robinson ``left the correct draft of the Will at his
home.'' Compl. ¶ 20. Mother Jung subsequently never
signed the will and died intestate.
Shortly after Mother Jung's death, Bow, Wee, Yok, and
May allegedly agreed that they would all serve as co-Personal
Representatives and would sell Mother Jung's home to Yok
below market price for $210,000. At some point, however,
the attorneys entered into an attorney-client relationship with
May. The attorneys prepared and in April 1995 filed a
Petition for Probate that named May as an heir and sought to
have her appointed the sole Personal Representative of the
estate, see Petition for Probate, Estate of Lew Gin Gee Jung,
despite the fact that the final draft of Mother Jung's will
prepared by the same attorneys failed to name May as either
a beneficiary or a Personal Representative, see Final Draft of
Will at 25. The Probate Division of the Superior Court of
the District of Columbia appointed May as the sole Personal
Representative in May 1995, and the attorneys continued to
represent the estate and May in her capacity as Personal
Representative throughout the entirety of the probate pro-
ceedings.
Bow withdrew from the agreement among the children
upon learning that May had filed the Petition for Probate,
triggering several rounds of litigation over the sale of the
house in the Probate Division beginning in June 1995.
Throughout that litigation, the attorneys pursued ``a cam-
paign of pleadings to the Probate DivisionTTTcharging plain-
tiff Bow Jung with fraud for repudiating the oral agreement.''
Compl. ¶ 43(a). In January 1997, the Probate Division ruled
4
that the oral agreement was not enforceable and that the
home could not be sold for less than the market value of
$400,000; the District of Columbia Court of Appeals subse-
quently affirmed that decision. In re Jung, 791 A.2d 920
(D.C. 2000) (unpublished table decision). The attorneys then
allegedly used estate funds to hire a non-party attorney to file
a motion on behalf of the estate, accusing Bow of committing
fraud upon the estate and seeking to recover compensatory
damages, attorneys' fees, and costs incurred during the dis-
pute over the house. Compl. ¶ 45. The Court of Appeals
summarily rejected that motion in November 2001. Id.
In August 1995, May challenged her brother's heirship by
filing a Complaint to Determine Heirship, requiring Bow to
produce a birth certificate to prove that he was a natural born
son of Mother Jung. Born in rural China in 1933, Bow could
not produce a ``Western style'' birth certificate issued contem-
poraneously with his birth, but instead produced immigration
papers and other records indicating that he was the son of
Mother Jung. See id. ¶¶ 38, 39. Four years of litigation
ensued; May in her capacity as Personal Representative
would not accept Bow's proffered documentation as proof of
his heirship and refused to distribute any portion of his
intestate share of the estate. That dispute finally ended on
December 16, 1999, when the Probate Division declared him
an heir after DNA testing proved he was the natural son of
Mother Jung. Id. ¶¶ 39, 41.1
Bow became aware of the attorneys' relationship with
Mother Jung in December 1997, when Robinson testified
during a deposition about the work he had done for Mother
Jung, including the preparation of the draft will that was to
have been signed in the summer of 1994. Robinson Dep. at
223, 234. Bow's counsel requested that the attorneys produce
1 Even Dickens would have been impressed by the modern
twist in this chapter of the Jung family's Bleak House: the Probate
Division ordered the exhumation of Mother Jung's body for DNA
testing to settle the heirship dispute.
5
a copy of that draft will, and they complied on January 13,
1998.
On July 16, 2002, Bow brought this legal malpractice suit
against the attorneys, based on his asserted status as an
intended beneficiary in Mother Jung's draft will. He claimed
that the attorneys committed malpractice in negligently fail-
ing to assist Mother Jung in executing a will that carried out
her testamentary intent and that their employee, Robinson,
``wrongly delayed and impeded Mother Jung from signing
the final draft of her Will.'' Compl. ¶ 20.
Bow also claimed that the attorneys committed legal mal-
practice by allowing a conflict of interest to arise from their
legal representation of both Mother Jung and May. The
conflict allegedly arose because the draft will that the attor-
neys had prepared for Mother Jung excluded May as a
beneficiary and Personal Representative. Bow charged that
by later representing May in her capacity as Personal Repre-
sentative and probating the estate that included May's intes-
tate share, the attorneys ``negligently abandoned their origi-
nal client's intent and interest, and negligently permitted
their conflict of interest to run unchecked and continuous ly
from April 27, 1995 to the present.'' Id. ¶ 59. He asserted
that the attorneys' allegedly tainted representation of May
damaged him by compelling him to incur legal fees fending
off the challenge to his heirship and the charge that he had
committed fraud on the estate, and generally defending his
interests during the probate of the estate with May as
Personal Representative.
The attorneys filed a motion to dismiss or for summary
judgment, arguing that: (1) Bow was not entitled to bring the
suit because he was not a party to the contract for legal
services to represent Mother Jung in drafting her will; (2)
Bow's claims were barred by the statute of limitations; and
(3) Bow impermissibly split claims between the present suit
and an action he filed in Superior Court against Robinson.
The district court found that Bow was an intended beneficiary
based on his inclusion in the draft will, which gave him
standing to bring a malpractice claim against the attorneys.
6
Jung v. Mundy, Holt & Mance, et al., No. 021421, Mem. op.
at 78 (D.D.C. June 17, 2003). The district court held,
however, that all of Bow's claims in the July 16, 2002 com-
plaint were barred by the District of Columbia's three-year
statute of limitations for legal malpractice, finding that Bow
``was on inquiry notice of the existence of a cause of action
against Defendants'' by January 1998, when he received a
copy of the draft will. Id. at 11. The district court accord-
ingly granted the attorneys' motion for summary judgment.
II. Analysis
We review de novo whether Bow's claims are barred by the
statute of limitations. See, e.g., Hall v. Clinton, 285 F.3d 74,
81 (D.C. Cir. 2002). At oral argument, Bow's counsel waived
consideration of the claims pertaining to the attorneys' con-
duct in preparing Mother Jung's will. Oral Arg. at 4:565:25.
We accordingly consider only whether the statute of limita-
tions bars Bow's legal malpractice claim based on the alleged
conflict of interest.
The district court found that the statute of limitations for
Bow's legal malpractice claims began to run in January 1998
when he received a copy of the draft will prepared by
Robinson. An action for legal malpractice must be filed
within three years ``from the time the right to maintain the
action accrues.'' D.C. CODE § 12301(8). ``The statute of
limitations for a legal malpractice claim is governed by the
discovery rule in cases where the relationship between the
fact of injury and some tortious conduct is obscure at the time
of injury.'' R.D.H. Communications, Ltd. v. Winston, 700
A.2d 766, 768 (D.C. 1997) (quotation omitted). Under this
rule, a cause of action accrues when a plaintiff knew or should
have known through the exercise of reasonable diligence of:
``(1) the existence of the injury, (2) its cause in fact, and (3)
some evidence of wrongdoing.'' Knight v. Furlow, 553 A.2d
1232, 1234 (D.C. 1989).
Under Bow's conflict of interest theory, he began sustain-
ing injury when the attorneys commenced their representa-
7
tion of May and took action that forced him to incur legal fees
to defend his interests. Under the discovery rule, however,
the three-year limitations period did not begin running until
Bow received a copy of the draft will in January 1998. The
receipt of the draft will provided Bow with all the information
necessary to initiate legal action for conflict of interest:
Mother Jung excluded May, but named him as a beneficiary
and an alternate Personal Representative. He thus discover-
ed that the attorneys' subsequent representation of May ran
counter to his interest as an intended beneficiary under the
draft will. The district court thus properly determined that
Bow's cause of action accrued in January 1998 because ``De-
fendants' representation of May TTT as Personal Representa-
tive of the Estate represented a conflict of interest given
Mother Jung's specific exclusion of May in the draft Will.''
Mem. op. at 12.
Bow filed suit more than three years after January 1998,
but that is not the end of the matter. He argues that the
litigation against him, tainted by the conflict of interest, was a
continuing tort, and that therefore the three-year limitations
period did not begin to run until the litigation ended, making
his July 16, 2002 complaint timely. Alternatively, Bow con-
tends that at the very least he may recover for injuries
caused by the attorneys during the three-year period prior to
the filing of the complaint.
This court has recognized that the prosecution of a lawsuit
``can constitute a continuing tort'' under District of Columbia
law:
A lawsuit is a continuous, not an isolated event, because
its effects persist from the initial filing to the final
disposition. TTT A defendant subject to a lawsuit is
likely to suffer damage not so much from the initial
complaint but from the cumulative costs of defense and
the reputational harm caused by an unresolved claim.
Whelan v. Abell, 953 F.2d 663, 673 (D.C. Cir. 1992). The
statute of limitations period for continuing torts begins to run
once a plaintiff has inquiry notice of a potential cause of
action. See Hendel v. World Plan Executive Council, 705
8
A.2d 656, 667 (D.C. 1997). As the District of Columbia Court
of Appeals recently explained, `` w hen the plaintiff is or
should be aware that he or she is being injured by a continu-
ing tort, the statute of limitations begins to run.'' Beard, 790
A.2d at 548. For Bow, that date was January 13, 1998. Bow
is thus incorrect that the continuing nature of the litigation
against him allowed him to sit on claims he knew or should
have known of until the litigation ended.
But in the case of a continuing tort, filing after the limita-
tions period has run does not mean that there can be no
recovery. Instead, `` t he plaintiff then may recover only for
injuries attributable to the part of the continuing tort that
was committed within the limitations period immediately pre-
ceding the date on which suit is brought.'' Id.; accord John
McShain, Inc. v. L'Enfant Plaza Props., Inc., 402 A.2d 1222,
1231 n.20 (D.C. 1979) (``If TTT the continuing tort is of the
type that causes a series of separate or recurrent injuries,
then only those damages stemming from conduct occurring
within the limitations period are recoverable.'') (quoted in
Beard, 790 A.2d at 548). A contrary rule, barring any
recovery for a continuing tort when the victim did not sue
within the limitations period after discovery, would have the
perverse result of conferring on the tortfeasor the right to
continue the tortious conduct and harm the victim anew. Cf.
Page v. United States, 729 F.2d 818, 822 n.25 (D.C. Cir. 1984).
The district court was correct that Bow filed the July 16,
2002 complaint after the limitations period had run on his
tortious litigation claim, because he was on inquiry notice of a
potential claim as of January 1998. The district court erred,
however, by not applying the rule in Beard to that claim
based on the continuing nature of the alleged tort. Bow
raised the Beard rule before the district court. See Pl.'s
Opposing P. & A. to Defs.' Mot. to Dismiss and Alt. Mot. for
Summ. J. (Sept. 11, 2002), at 9 (``Beard held that even if the
plaintiff is aware of the continuing tort, his injuries attribut-
able to the continuing tort committed within the limitations
period immediately preceding the complaint are recovera-
ble.''). According to Bow's pleadings, several aspects of the
attorneys' adverse litigation continued into the three-year
9
statutory period prior to the filing of his complaint: (1) the
heirship dispute, which did not conclude until December 16,
1999; (2) litigation concerning the sale of the house, which
ended on June 6, 2000; and (3) the fraud motion before the
District of Columbia Court of Appeals, which was litigated
during 2001.
We therefore hold that Bow's conflict of interest claim is
not completely barred by the statute of limitations. Bow may
pursue his claim for those damages sustained from the al-
leged tortious litigation after July 15, 1999 -- the three years
preceding the complaint -- through the present. Any dam-
ages Bow suffered as a result of the attorneys' conduct prior
to July 16, 1999, are barred by the statute of limitations. See
L'Enfant Plaza E., Inc. v. John McShain, Inc., 359 A.2d 5, 7
(D.C. 1976) (when a plaintiff files suit after the limitations
period has run on a continuing tort, ``recovery is limited to
damages resulting from the tortious conduct during `the
three-year statutory period preceding the filing of the
suit' '') (quoting Underwater Storage, Inc. v. United States
Rubber Co., 371 F.2d 950, 953 (D.C. Cir. 1966); alteration in
McShain).
* * *
We reverse the district court's grant of summary judgment
on the legal malpractice claim based on the alleged conflict of
interest, and remand to the district court to permit Bow to
pursue his claim with respect to the attorneys' conduct and
any resulting damages within the three-year period prior to
the filing of his complaint.
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