Suder v. Whiteford, Taylor & Preston, LLP

ADKINS, Judge. The trial-within-a-trial doctrine is unique to legal malpractice cases. The doctrine provides a mechanism we do not see elsewhere for a tribunal to resolve a proximate cause query. ²³³ When the doctrine is applicable, the litigants reconstruct the underlying action, absent the supposed breach of duty. The tribunal must not only determine how the parties would have proceeded had there been no breach, but must also assume the role of the earlier adjudicator in order to ascertain the probable outcome of the action.

Simply put, the court must try a case within a case. We have previously recognized the trial-within-a-trial doctrine when the legal malpractice claimant was denied a trial due to the attorney’s alleged malpractice. In this appeal, we are asked to determine whether the doctrine may apply when the underlying trial or other proceeding has already been litigated. We hold that it can.

We also hold that, in applying the doctrine, the attorney is not limited to the defenses actually raised by the underlying defendant, but may assert those defenses that the original defendant would have raised if the attorney had never breached his or her duty. Here, Respondent Whiteford, Taylor & Preston (“White-ford”) defends against a malpractice action brought by its former client, Shirley Suder, in connection with the administration of her deceased husband’s estate. Suder filed a complaint for malpractice against Whiteford in the Circuit Court for Talbot County, alleging that Whiteford committed legal malpractice when it missed the deadline to request an extension of time to file Suder’s request to elect her statutory share of her late husband’s estate. Whiteford does not contest that it breached its duty by failing to file for an extension until after the deadline, resulting in the Orphans’ Court’s denial of Suder’s motion for statutory election.

Whiteford does dispute, however, that its negligence was the proximate cause of her injury, contending that the Orphans’ Court could not have granted the extension in any event, because its earlier order granting a previous extension was void. The Circuit Court for Talbot County granted summary judgment in favor of Suder, which the Court of Special Appeals (“CSA”) reversed and remanded with an instruction to enter a judgment in favor of Whiteford. We reverse the judgment of the CSA and remand ²³⁴ the case to the CSA for it to remand to the Circuit Court for a trial on the merits. FACTS AND LEGAL PROCEEDINGS This legal malpractice action arises from an estate administration dispute between Petitioner Suder and Gregory Downes (“Downes”).

In Downes v. Downes, 388 Md. 561 , 880 A.2d 343 (2005), Judge Wilner, writing for this Court, summarized the underlying controversy as follows: [Suder, formerly known as Shirley Downes] is the surviving spouse of Eldridge Downes IV.... In his Will, [the decedent] left all of his tangible personal property to [Suder] and named her as his personal representative.... On November 3, 1997, the Orphans’ Court admitted the Will to probate and, pursuant to the Will, appointed [Suder] as personal representative.... On June 2, 1998—one day prior to the then seven-month deadline for her to decide whether to renounce the Will and take her statutory share of the Estate—[Suder], acting pro se, filed a petition for an extension of that time.... [0]n June 9,1998, [six days after the deadline,] the court granted [it]____[ 1 ] On August 27, 1998, [Suder], again acting pro se, filed a petition for a second extension of time to elect her statutory share [which the court also granted until December 1,1998]. [On November 23, 1998, Suder retained Respondents, Whiteford, Taylor & Preston, LLP and Ascanio S. Boccutti, an attorney employed by Whiteford, “to represent and advise her concerning whether or not to renounce her late husband’s will and take her statutory share.”] On November 30, 1998—one day before the expiration of the current extension—[Suder], this time through [White-ford and Boccutti], filed a petition for a third extension---She claimed that, due to a lack of cooperation on the part of ²³⁵ [three businesses in which her late husband had an interest], she had been unable to determine the value of the assets or the extent of the liabilities.

On December 1, the court granted another three-month extension, until March 1, 1999. On February 24,1999, again through counsel, [Suder] requested a fourth extension, for the same reason. On March 2, the court granted the extension, until June 2,1999. For whatever reason, [Suder, through Whiteford and Boccutti,] allowed the fourth extension to expire.

On June 24, 1999—twenty-two days after the expiration of the extension period—she filed a petition for a fifth extension.... On July 6, 1999, the court, citing [Estates & Trusts Article (“ET”) ] § 3-206(a), denied the petition. [Suder] moved for reconsideration of that denial, claiming that she had substantially complied with the deadline requirement. In October, 1999, the court, citing Simpson v. Moore, 323 Md. 215, 228 , 592 A.2d 1090, 1096 (1991), denied the motion, holding that the problem was not one of substantial compliance but of noncompliance with the statutory requirement. [Suder] did not seek any immediate review of the Orphans’ Court’s denial of her petition for fifth extension, but rather completed the administration of the Estate. On February 13,2001, the court approved the Fifth and Final Administration Account showing a gross Estate of $3,228,701 and a net Estate after payment of taxes and expenses of $945,291.

On March 15, 2001, she filed an appeal to the Circuit Court from the denial of her petition for fifth extension and her motion to reconsider that denial. [Decedent’s son, Downes], as sole surviving beneficiary of the residuary trust, moved to intervene in the Circuit Court action, noting that, if [Suder] were permitted to renounce the Will, the value of the residuary trust would be decreased by about one-third. He also moved to dismiss the appeal as untimely, arguing that the denial of [Suder’s] request for a fifth extension constituted a final judgment and that an appeal should have been taken within 30 days after that order. ²³⁶ On November 15, 2001, the Circuit Court granted [Downes’s] motions to intervene in and to dismiss the appeal. The court concluded that the order of July 6, 1999 that denied [Suder’s] petition for fifth extension was a final, appealable judgment ... and that her appeal from that order in March, 2001, was untimely. [Suder] then appealed to the [CSA] which, in an unreported Opinion filed November 14, 2002, reversed the Circuit Court ruling. The intermediate appellate court concluded that the effect of the July, 1999 order was simply “to preclude [Suder] from electing an alternative method of calculation” and that nothing in that order “suggests a final adjudication of [Suder’s] claim, or even a specific valuation as to [Suder’s] award.” Because that order did not finally adjudicate her claim in regard to the Estate, it was not immediately appealable.

The final, appealable judgment, the court held, was the order approving the Fifth and Final Administration Account. The case was thus remanded to the Circuit Court for further proceedings on [Suder’s] appeal. [On remand, the circuit court] read what is now [ET] § 3-206(a)(2) as not allowing the court to grant a subsequent extension once the allowable period or current extension expired. The court noted that [Suder] was aware of that fact, having complied with the requirement on four prior occasions, and observed that if the law created a harsh result, the remedy lay in a legislative change, not one crafted by the Judiciary. [Suder] appealed again, but this time the [CSA], in a reported Opinion, affirmed. Downes v. Downes, 158 Md. App. 598 , 857 A.2d 1155 (2004)---- [T]he intermediate appellate court held that the period prescribed in [ET] § 3-206 for extending the time for a spousal election may not be enlarged by either an orphans’ or circuit court.

It rejected [Suder’s] argument that a circuit court had greater authority in this regard than an orphans’ court, either under the Maryland Rules or under equitable principles, and declared ²³⁷ that “if a surviving spouse does not file a petition for extension of time within the originally prescribed period or, as here, the previously extended period, the spouse is foreclosed from thereafter obtaining additional time to make the election.” Downes v. Downes, supra, 158 Md.App. at 610 , 857 A.2d at 1161 . We granted certiorari to consider the single question of whether an orphans’ court, or a circuit court in a de novo appeal, has discretion to accept a surviving spouse’s petition for extension of time to make an election under ET § § 3-203(a) and 3-206(a) and Maryland Rule 6-411(e) when the petition seeking the extension is filed after the previous election period has already expired. Id. at 566-70, 880 A.2d at 345-48 (footnotes omitted) (footnote added). This Court went on to affirm the CSA judgment.

Id. at 578 , 880 A.2d at 353 . Thereafter, Suder brought this suit against Whiteford, alleging that the firm’s failure to file the fifth petition for an extension before the previous election period had expired resulted in her loss of the right to disclaim her husband’s Will and elect a statutory share of his estate. Whiteford countered, arguing that its untimely filing was not the proximate cause of Suder’s injuries, because she lost the right to elect a statutory share of her husband’s estate when her first pro se request for an extension was not granted by the Orphans’ Court until after the expiration of the election period, even though it was timely filed. Whiteford filed a motion to dismiss the case, and Suder filed a motion for summary judgment.

The Circuit Court for Talbot County denied Whiteford’s motion, and granted summary judgment and entered a final judgment in favor of Suder after determining that the first extension was valid for public policy reasons, namely, that “[i]t would seem to be wrong, maybe even against public policy to hold this litigant in any way at fault for doing what she needed to do on time because an entity, the Orphans’ Court, didn’t respond before June 3rd for whatever reason.” The court also ruled that, because Downes never challenged the first extension during the entire time the estate remained open, White-ford could not now raise the issue. ²³⁸ In an unreported opinion, the CSA reversed the Circuit Court, holding that the grant of the first extension was a voidable order that could be contested by Downes at any time. It also approved use of the trial-within-a-trial doctrine to determine Whiteford’s liability. In this regard, it concluded that, although Downes based his challenge of Suder’s election on the fifth extension, Whiteford was not limited to those grounds and could challenge proximate cause by raising the validity of the first extension. Reasoning that no reasonable legatee would disregard the opportunity to prevail on the erroneous grant of the first extension if the fifth petition had been timely filed, the CSA reversed the Circuit Court’s denial of Whiteford’s motion to dismiss and remanded the case to that court to enter a judgment in favor of the firm.

Suder noted this timely appeal. We granted certiorari to consider the following issues: 2 I. Whether the trial-within-a-trial doctrine of proving proximate cause is appropriate in a malpractice action in which the client is not denied the opportunity to proceed to trial.

II

Whether the CSA correctly concluded that, as a matter of law, Whiteford’s conduct was not the proximate cause of Suder’s damages. DISCUSSION I. Standard of Review When reviewing a trial court’s grant of summary judgment, the appellate court must determine whether there is a dispute ²³⁹ as to a material fact sufficient to require an issue to be tried. See Frederick Rd. Ltd. P’ship v. Brown & Sturm, 360 Md. 76, 93 , 756 A.2d 963, 972 (2000). “Summary judgment is not a substitute for trial----Evidentiary matters, credibility issues, and material facts which are in dispute cannot properly be disposed of by summary judgment.” Id.

The question of whether a trial court’s grant of summary judgment was proper is a question of law subject to de novo review on appeal. In reviewing a grant of summary judgment under Md. Rule 2-501, we independently review the record to determine whether the parties properly generated a dispute of material fact, and, if not, whether the moving party is entitled to judgment as a matter of law. We review the record in the light most favorable to the nonmoving party and construe any reasonable inferences that may be drawn from the facts against the moving party. Haas v. Lockheed Martin Corp., 396 Md. 469, 479 , 914 A.2d 735, 741 (2007) (quotation marks and citations omitted).

II

Analysis To prevail on a claim for legal malpractice, a former client must prove “(1) the attorney’s employment, (2) the attorney’s neglect of a reasonable duty, and (3) loss to the client proximately caused by that neglect of duty.” Thomas v. Bethea, 351 Md. 513, 528-29 , 718 A.2d 1187, 1195 (1998). Here, Whiteford does not contest that it was employed by Suder and that it breached its duty by failing to file a fifth petition for an extension until 22 days after the deadline. Nor does it dispute that Suder received less under the will than she would have received as her elective share under ET Section 3-203(a), a loss of at least $269,920.06. 3 See Md.Code (1974, 1991 RepLVol., 1992 Suppl.) § 3-203(a) of the Estates and Trusts Article (“ET”). Rather, Whiteford challenges ²⁴⁰ Slider’s assertion that its failure to timely file the request for an extension was the proximate cause of her damages.

Whiteford contends that Suder cannot satisfy the proximate cause requirement for legal malpractice because her right to elect to take a statutory share was lost when the Orphans’ Court erroneously granted her first request to extend the elective period after the first statutory period had already expired. Whiteford’s representation of Suder did not begin until well after this. Whiteford asserts that Downes would have challenged the validity of the first extension, and would have prevailed, had the Circuit Court not already denied Suder’s fifth extension as untimely. 4 To prove that denial of the fifth extension was not the proximate cause of Suder’s damages, Whiteford seeks to apply the trial-within-a-trial doctrine, albeit asserting that no actual trial is required because a motion to dismiss should have been granted. 5 The firm argues that even if it had timely filed the petition for the fifth extension, Downes would have successfully prevented Suder from collecting her statutory share because of the invalidity of the first extension. Thus, it maintains, Suder was not actually placed in a worse position because of Whiteford’s conduct.

Suder, on the other hand, contends that Whiteford is precluded from basing its defense on the Circuit Court’s improper grant of a first extension because Downes never challenged that petition. She argues that allowing Whiteford to employ the trial-within-a-trial doctrine and present a