Vogel v. Touhey

HOLLANDER, J. This legal malpractice case is rooted in a divorce action involving Karen Vogel, appellant, and her former husband, Harold Alfert, M.D. During the pendency of the divorce case, Vogel believed that Alfert had deceived her in fashioning their property settlement agreement by failing to fully disclose the ⁶⁸⁵ couple’s marital assets. Accordingly, appellant retained T. Joseph Touhey, Esquire, appellee, to represent her in an effort to uncover the full extent of the marital assets and to renegotiate her property settlement agreement with Dr. Al-fert. Unhappy with appellee’s performance, Vogel discharged Touhey. A few days later, Vogel settled her dispute with Dr. Alfert for $50,000, a fraction of the additional sum she had hoped to recover.

Thereafter, appellant filed a legal malpractice suit against Touhey in the Circuit Court for Montgomery County, asserting that she had settled her divorce case on unfavorable terms because appellee: 1) failed “to take adequate discovery and investigative efforts to obtain a complete and accurate assessment of the Alferts’ marital assets”; 2) fail[ed] “to properly analyze and evaluate the discovery materials ... produced by Dr. Alfert”; 3) “fail[ed] to employ a competent professional, such as an accountant, to help identify and evaluate the marital assets”; and 4) “recommend[ed] a settlement for an inadequate amount without full knowledge and understanding of the marital assets.” Appellee filed a motion to dismiss, claiming that appellant’s malpractice suit was barred by the doctrine of judicial estop-pel. In support of his motion, appellee submitted the transcript from the hearing in the divorce case, at which appellant represented that her divorce settlement was “fair and equitable.” After the malpractice court (Rowan, J.) granted appel-lee’s motion to dismiss, Vogel noted this appeal. She presents us with a single issue: Whether Appellant’s lawsuit for legal malpractice ought to have been barred, under the doctrine of judicial estoppel, by her prior statement to the Court, in the underlying divorce hearing, that the marital settlement agreement which had been negotiated by Appellee, and about which she now complains in her malpractice action, was “fair and equitable[,]” where Appellant also complained at the same hearing about Appellee’s lack of diligence in investigating her then husband’s finances, and where she had had an inadequate opportunity, as of the time of the divorce hear ⁶⁸⁶ ing, to fully review financial records supplied by her then husband in discovery. For the reasons that follow, we shall affirm.

FACTUAL SUMMARY 1 Appellant, who is a lawyer, and Dr. Alfert, who is a urologist, were married on January 25,1988; no children were born to the union. The couple separated on June 6,1999. On March 6, 1999, appellant and Dr. Alfert entered into a property settlement agreement (the “Property Agreement”). Appellant, who has worked in the Criminal, Asset Forfeiture and Money Laundering Division of the Justice Department for over seventeen years, was not represented by counsel in connection with the Property Agreement.

The Property Agreement provided for the equal division of the couple’s marital assets, valued at about two million dollars under the Property Agreement. According to appellant, she subsequently discovered that Dr. Alfert had failed to disclose “substantial [marital] assets” during the negotiation of the Property Agreement, with the intent of depriving her of her fair share of the parties’ assets, and that he had diverted and/or dissipated marital assets. Appellant alleged that the “pile of [marital] assets that should have been divided” amounted to three or four million dollars. Accordingly, on or about January 18, 2001, appellant retained appellee to represent her in the divorce case, then pending in the Circuit Court for Montgomery County.

She sought legal representation because she “believed that [the] ‘Property Agreement’ executed on March 6, 1999, by her and her then husband was unfair and had been obtained by ⁶⁸⁷ fraudulent misrepresentations, due to [the] lack of full financial disclosure by the husband.” During appellant’s initial consultation with Touhey, she told him that the marital assets totaled “substantially more” than the two million dollars that had been the subject of the Property Agreement. Appellant asserted that Dr. Alfert failed to divulge various brokerage accounts, bank accounts, and pension funds. Appellant specifically inquired whether appellee “had sufficient time and interest to handle a domestic case that involved thorough investigation and analysis of the parties’ complex financial situation.” Touhey assured appellant that “he had sufficient time to devote to such a complex case.” In connection with Touhey’s representation of appellant, the parties executed a retainer agreement. 2 It provided, in part: You [i.e., appellant] seek to contest the validity of a Property Settlement Agreement with your estranged husband entered into [in] 1999. You claim that marital assets were not disclosed or accounted for by him in the preparation of that Agreement which was [prepared] without counsel.

I [i.e., appellee] have discussed with you candidly the prospects for such a claim and litigation. Obviously, it all depends on the discovery of those assets, and the identity and value of those assets. (Emphasis added in the malpractice complaint). On February 1, 2001, appellee filed an Amended Counter-Complaint for Absolute Divorce in the underlying divorce case, challenging the Property Agreement.

It stated, in part: [O]n or about March 6, 1999, [appellant and Dr. Alfert] executed a document entitled Property Agreement.... Additionally, despite the fact that this document specifically required both parties to make full financial disclosure of any and all assets, [appellant] has subsequently discovered, that ⁶⁸⁸ [Dr. Alfert] withheld disclosure of substantial marital assets, of which he has unjustly deprived [appellant]. [Dr. Alfert] also failed to bargain in good faith and made material misrepresentations to [appellant]. Later, when Dr. Alfert opposed appellant’s motion to postpone a hearing in the divorce case, appellee filed a response on appellant’s behalf. It stated: [Appellant] is challenging the validity of the Property Agreement, based upon [Dr. Alfert’s] failure to disclose substantial marital assets at the time the parties executed the Property Agreement.

In order for this issue to be resolved, it is quite apparent, that extensive financial documents must be obtained for numerous marital accounts. In addition, in February 2001, appellee propounded discovery in the divorce case, including interrogatories and a request for production of documents. On or about March 6, 2001, Dr. Alfert responded to the discovery requests. Appellant alleged in the malpractice case that Dr. Alfert’s responses were “incomplete and did not reveal critical information concerning marital assets.” According to the malpractice complaint, appellant “reviewed Dr. Alfert’s initial responses to the interrogatories and document requests, noted many discrepancies!,] and regularly asked [appellee] questions, both orally and in writing, about specific marital assets.” From February 2001 through April 2001, appellant allegedly made numerous written and oral requests to appellee to obtain more specific financial information from her husband.

Further, appellant alleged in the malpractice complaint that, in order for her to obtain the information needed to assess the nature and value of the marital assets, “the requests would have had to be augmented by subpoenas to financial institutions, depositions and analysis by a professional sophisticated in the area of asset identification and evaluation, such as an accountant.” Although appellant “repeatedly requested” that appellee “issue subpoenas to financial institutions,” the appel-lee, she averred, failed to do so. ⁶⁸⁹ On March 8, 2001, appellee wrote to Dr. Alfert’s lawyer, requesting additional financial information from Dr. Alfert. According to Vogel, appellee “eventually received supplemental answers to interrogatories and additional documents which revealed the existence of previously undisclosed marital assets....” Nevertheless, appellant maintained that Touhey failed to “carefully review! ] or analyze! ]” the information “in time to have an impact on the ultimate outcome of the [divorce] case.” Appellant also asserted that in March 2001, Touhey was too involved in other cases to devote the necessary time to her case. She alleged: In or about March of 2001, on information and belief, [appellee] was heavily involved in motions and trial preparation in a high-profile criminal case in Anne Arundel County. From that time on, [appellee] seemed to have little time to spend on [appellant’s] case.

Most of the work done on the case, by [appellant’s] observation, was performed by a young associate ... who seemed well-intentioned but clearly had difficulty understanding the complex financial records which had been produced. [The associate] also seemed to have little idea of how to obtain the necessary additional information which [appellant] was regularly requesting. According to appellant, Dr. Alfert telephoned her in April 2001, asking why she had failed to respond to the settlement offer that had been communicated by his attorney. Appellant responded that she was never informed of the settlement offer. In the meantime, by letter of April 9, 2001, appellee wrote to appellant, advising that “it is essential that we pinpoint the specific marital assets which you contend were hidden from you at the time of the 1998[sic] Separation Agreement.” Touhey also asked appellant to “provide ... a list of each and every account or asset which you contend was not properly disclosed or divided at the time of separation.” By letter of April 16, 2001, appellant provided a list of the various bank and investment accounts about which she had questions.

According to appellant, neither appellee nor his associate ever answered her questions. ⁶⁹⁰ In a letter of April 25, 2001, appellee provided appellant with copies of Dr. Alfert’s supplemental answers to interrogatories, along with a settlement proposal from Dr. Alfert’s attorney. The letter of April 25, 2001 stated, in part: Enclosed please [find the] April 11, 2001 correspondence from [Dr. Alfert’s counsel] which is self-explanatory. 3 Please review the supplemental Answers to Interrogatories and the settlement proposal and contact me to discuss. Appellant claimed that she did not receive the documents until after a meeting with appellee and his law associate on April 26, 2001. At that meeting, appellee advised appellant that, based on his evaluation of the discovery materials received from Dr. Alfert, he recommended that she settle the divorce litigation for $50,000, i.e., $50,000 in excess of the assets she was to receive pursuant to the 1999 Property Agreement.

Vogel authorized appellee to proceed. By facsimile sent on Thursday April 26, 2001, appellee’s associate conveyed a $50,000 settlement demand to Dr. Alfert’s counsel. The letter stated: This is to confirm that [appellant] has authorized me to offer the following settlement which would fully and finally resolve all matters between our clients: 1. Mr. Alfert would make a payment in the amount of $50,000 to [appellant] as an adjustment of the partiesf] marital property.

This is a non-negotiable sum and we do not invite counter-offers. 2. Each party would then keep all assets currently titled in their name and in their possession. 3. Each party would be responsible for their own attorney’s fees. 4. The parties would proceed to final uncontested divorce based upon a written separation agreement on these terms. ⁶⁹¹ Please contact me promptly with your response so that we may avoid further attorney’s fees and court filing.

Thank you for your cooperation in this matter. By return facsimile that same day, Dr. Alfert accepted appellant’s settlement demand. As an attorney, appellant believed that once Dr. Alfert accepted her demand, a binding contract was created. However, the facsimiles of both appellant and Dr. Alfert made clear that a written settlement agreement was contemplated.

On April 30, 2001, appellant proceeded to appellee’s office to retrieve the documents pertinent to her divorce case. At that time, appellant “found a large box” in a storage room, with her name on it, which contained supplemental documents submitted by her husband during discovery. Vogel alleged in the malpractice complaint that, until then, she did not know that Dr. Alfert had produced the documents. According to appellant, the box contained “hundreds of pages of materials,” which were “totally disorganized.” Moreover, “[t]here was no sign they had ever been reviewed” by appellee.

Indeed, she claimed that “it was apparent from their disorganized state that [the documents] had never been carefully reviewed or analyzed by [appellee], his associate, an accountant or anybody else.” And, appellant insisted that she lacked “the time, or the financial acumen, to review, organize and digest the contents . ... ” Following appellant’s discovery of the documents, she promptly terminated appellee’s representation in the divorce case, notwithstanding the impending hearing scheduled for May 4, 2001. By letter of May 3, 2001, appellee wrote to appellant: “In accordance with your instructions to withdraw as counsel of record in your case in the Montgomery County Circuit Court, we enclose herewith [the] appropriate Motion and your direction to us.” Consequently, appellant appeared without an attorney at the hearing on May 4, 2001, which was conducted by a domestic relations master. The following exchange is relevant: ⁶⁹² THE COURT: 4 Okay. And, ma’am?

Your name? [APPELLANT]: Karen Alfert, and I’m representing myself pro se. THE COURT: Yes. Now, is that your intention in this proceeding, that you represent yourself? [APPELLANT]: Yes, sir. THE COURT: ...

And have you discharged your attorney from representation, from representing you? Have you terminated his services? [APPELLANT]: Yes, sir. THE COURT: Okay. One of the things, there is in the file—it was filed on May 1, 2001—a line from you to the Clerk saying “I’m requesting the withdrawal of T. Joseph Toohey [sic], Esq. as counsel for Karen Vogel Alfert in the above referenced matter by fax this date.[”] “I will request Mr. Toohey [sic] to withdraw as my counsel and to file the appropriate documents with the Circuit Court. [”] “Until new counsel is retained, I will represent myself pro se,” and that is signed by you, I believe?

So this is something you filed with the court? [APPELLANT]: Yes, Your Honor. * * * THE COURT: ... Mr. Toohey [sic] did not file anything with the court now to formally withdraw his appearance. We have contacted his office this morning. My secretary contacted his office, and we were informed that he is in court in Anne Arundel County or in Annapolis. 5 [APPELLANT]: I called yesterday and was told that he was out of town. ⁶⁹³ THE COURT: Or something.

Okay. Were you calling him yesterday to see if he was coming here for you today? [APPELLANT]: Actually, I called several times this week to talk to him, and he hasn’t returned my calls. THE COURT: All right, but is that about him no longer representing you, or to have him represent you, or— [APPELLANT]: Well, I think mostly to find out where things stand with him. THE COURT: All right. [APPELLANT]: Because I had not heard from him.

THE COURT: Well, what is your understanding of where things stand right now? [APPELLANT]: My understanding is that he must believe he is withdrawn from the case. Otherwise he would be here today. THE COURT: And is it your understanding and belief that he was withdrawing, too? [APPELLANT]: Yes. THE COURT: Okay.

All right. Is it your desire to proceed today on your own behalf and represent yourself? [APPELLANT]: Yes, Your Honor. THE COURT: Okay. You understand that an attorney could be helpful to you in terms of giving you advice and representing you? [APPELLANT]: Well, that is why I am here pro se.

THE COURT: Okay. Do you believe that it would be more helpful for you to not have an attorney? Is that what you are saying? [APPELLANT]: No, Your Honor. THE COURT: No. Okay. [APPELLANT]: I’m sorry.

What was the question? THE COURT: I was asking you do you understand that it could be helpful to you to have an attorney to represent you? [APPELLANT]: I have had legal advice until now. ⁶⁹⁴ THE COURT: Okay. [APPELLANT]: So I am fully aware of the issues. (Emphasis added). The court proceeded to inquire as to the terms of the settlement reached by appellant and Dr. Alfert on April 26, 2001.

The following colloquy is illuminating: THE COURT: Okay, and have you come to a settlement of all the issues? [APPELLANT]: I think so. THE COURT: Okay. Then are the settlements contained in any written documents.at this time, or— [APPELLANT]: Yes, Your Honor. Counsel for my husband provided me with a supplemental property settlement a little while ago, and I read it, and it looks fine. * * * THE COURT: Okay.

What I would do, ma’am, is give you an opportunity to read the agreement—or, I guess you have read it, but to make sure that you are satisfied with it, and then if you both want to sign it. Then what I am going to do is I am just going to ask both parties briefly on the record, I am going to do what is known as voir dire you. It is just ask you a series of questions just to be satisfied that you both understand the terms, and that it is in fact your agreement and that you understand that you would be bound by the agreement. So if you want to take as much time as you need right now to read through it again, and— [APPELLANT]: I don’t need any additional time.

(Emphasis added). Thereafter, the Alferts were sworn and the master examined them in regard to their settlement. Notably, the master gave appellant an opportunity to contest the terms of the supplemental settlement agreement and to proceed to trial, if she wanted to do so. Moreover, the master referred to appellant’s “right to obtain further discovery” and her “right ⁶⁹⁵ to make [her] decision.” In response, appellant informed the master of her belief that “[t]he discovery documents had not even been reviewed,” but stated that she refused to “go back on [her] word” as to the settlement.

Appellant answered in the affirmative when the master asked if she was “satisfied with the terms” of the supplemental property agreement. Of significance here, Vogel expressly indicated that the terms of the agreement were “fair and equitable.” The following colloquy is noteworthy: THE COURT: ... The May 4, 2001 supplemental property settlement agreement, you have had an opportunity to read that? [APPELLANT]: Yes, Your Honor. THE COURT: Okay.

And up until recently you were represented by counsel in connection with this matter? [APPELLANT]: Yes, Your honor. THE COURT: Okay, and did you have an opportunity to discuss the facts and circumstances with your attorney and have sufficient time to meet with him so that he could give you proper legal advice concerning your rights and responsibilities? [APPELLANT]: Well, that is why I terminated his services. THE COURT: Okay, because he wasn’t accessible? [APPELLANT]: He wasn’t accessible. The analysis of the accounts was incomplete.

It was incorrect. The discovery documents had not even been reviewed. THE COURT: And had you reviewed them yourself? [APPELLANT]: No. I picked them up Monday morning. THE COURT: Okay. [APPELLANT]: And that is when I terminated their services.

THE COURT: All right, and have you—what is your educational background? ⁶⁹⁶ [APPELLANT]: Well, my highest level is a J.D., and I have worked at the Department of Justice for about 17 years. I work in the Criminal Division, Asset Forfeiture and Money Laundering. THE COURT: Okay. Do you have any remaining questions that you would have concerning the agreement that you would like to raise in open court?

Do you have any questions at all about the agreements or about your rights or responsibilities or any questions at all about the supplemental property settlement agreement property agreement [sic]? [APPELLANT]: I don’t have any questions. I could state what I would have been able to show if discovery had been completed as represented, but that wasn’t done, and I agreed to the proposal last Thursday [i.e., April 26, 2001], prior to the discovery of the box of unreviewed records in appellee’s office, and I will stick with my word. THE COURT: All right. So you have considered your right to obtain further discovery and your right to make your decision? [APPELLANT]: Well, I don’t think in good faith that I can renege on accepting the agreement as presented.

THE COURT: All right. All right. Well, you understand that if you didn’t come to an agreement that this matter could be set for a contested trial, and then the Court would decide any disputed issues or property issues or property issues [sic], or any issues that are open? [APPELLANT]: I realize that, but I’m not going to go back on my word. THE COURT: All right.

And then do you understand, though, that by making an agreement, you are asking that there not be a trial date, and that the terms of this agreement become binding on you and part of a court order? [APPELLANT]: Yes, Your Honor. THE COURT: Okay, and do you believe, then, that the terms of the agreement are fair and equitable? Are you satisfied with the terms of this agreement? ⁶⁹⁷ [APPELLANT]: They are fair and equitable. THE COURT: So you have signed both documents as a voluntary act on your part? [APPELLANT]: Yes, Your Honor.

(Emphasis added). Thereafter, the master said: “[T]he Court will certainly accept this agreement, and I believe that it was entered into freely and voluntarily by both parties.” The master also stated: [A]nd [Vogel] has also testified that she believes it is fair and equitable, and that she has chosen to proceed without counsel, and I believe that she has the education and experience, and certainly the competence to make that decision and to do so, and so now we will be proceeding now with the divorce hearing. The master then proceeded with the uncontested divorce hearing. At the close of the hearing, the master indicated that he would recommend a judgment of absolute divorce.

According to the transcript, the parties then submitted a waiver of exceptions, in order to expedite the issuance of the divorce decree. 6 About ten months later, on March 14, 2002, appellant, through counsel, filed a malpractice action against Touhey. As we noted, appellee moved to dismiss, claiming that the suit was barred by the doctrine of judicial estoppel. He asserted, in part: In [appellant’s] papers, and in her testimony of May 4, 200[1], she makes clear that although she was dissatisfied with [appellee], she was satisfied that the settlement agreement distributing the marital property was “fair and equitable.” Under the principles of judicial estoppel, [appellant] is ⁶⁹⁸ precluded from now asserting that the amount of the settlement of the division of the marital property was inadequate. In his memorandum in support of the motion, appellee argued: “Judicial estoppel precludes a litigant from taking a position ‘which is directly contrary to, or inconsistent with, one previously assumed by him, at least where he had, or was chargeable with, full knowledge of the facts and another will be prejudiced by his action.’ ” Further, appellee contended: Where, as in the case at hand, a party (who happens to be an attorney) represents to a court that a settlement agreement is “fair and equitable,” that same party should be precluded from later complaining that the same settlement agreement is inadequate.

This is particularly so in this case where the [appellant] had discharged [appellee] because of the allegedly poor investigation that he conducted into her husband’s assets and disclosure of those assets and where she had taken custody of the financial documents she claims [appellee] failed to review before she told the Court that the settlement agreement was “fair and equitable.” * * * ... In complete contradiction to her earlier statements to the Court, however, [appellant] now claims that the marital property settlement is inadequate and she attempts to hold [appellee] responsible for what she calls an inadequate settlement. [Appellant] cannot have it both ways. She is presenting contrary positions to different Courts, and she should be estopped from making a legal malpractice claim under these circumstances. (Underlining in original).

Appellant countered: “While [appellant] may have been upset that [appellee] had been less than diligent in investigating Dr. Alfert’s finances, she had no reason to believe at the time that the new agreement was fundamentally unfair.” Further, relying on cases from in and beyond Maryland, appellant argued that “a client’s agreement to settle a case does not bar a subsequent suit by the client against her lawyer for negligence in recommending the settlement.” According ⁶⁹⁹ to appellant, she is not judicially estopped from raising the claim, because her conduct was not “heinous,” “fast and loose,” or tantamount to “blatant misrepresentations.” She asserted: Nor has [appellant] herein played “fast and loose” with the Court. On the contrary, her behavior toward the Court has been impeccable. She did not try to reneg [sic] on an agreement she knew she had been bound to by her lawyer. She did the honorable thing and accepted it.

Accordingly, she should not be penalized by dismissal of her malpractice claim. In support of her opposition to Touhey’s motion to dismiss, appellant also submitted an affidavit. She averred, in part: 6. That at the April 26 [, 2001] meeting [between appellant and appellee], Mr. Touhey explained to me that he had evaluated materials received from Dr. Alfert and that he believed the best I could do was receive $50,000 more than I was to get under the earlier, pro se Property Agreement.

He stated that if I didn’t accept such an amount, T might do worse at trial. One of the reasons given to me by Mr. Touhey in favor of such a settlement was that the stock market had declined since the date of the pro se agreement. During the discussion, Mr. Touhey gave me the impression that he had studied and analyzed the supplemental discovery materials which had been provided by Dr. Alfert earlier in April. The next day, April 27, we were scheduled to go to a mandatory pretrial settlement conference, we might not get such a good settlement.

Based upon this discussion and his recommendations, I authorized Mr. Touhey to communicate to my husband’s attorney a demand for $50,000 ‘as an adjustment of the parties[] marital property. (Emphasis added). At the hearing in the malpractice case on July 30, 2002, the court focused on appellant’s representation that the settlement agreement was fair and equitable, and informed appellant that it was “inclined to adopt [appellee’s] argument----” The following exchange is pertinent: ⁷⁰⁰ THE COURT: Unless you can persuade me otherwise. I mean, I recognize everything that you said, but your client, in effect, stood up in court and said, you know, this is fair and equitable. [COUNSEL FOR APPELLANT]: Your Honor, I think that the Court has to take into consideration the circumstances around which she said that, and that’s what I’ve tried to elucidate in my papers and in her affidavit. * * * THE COURT: [S]he gets upset with [appellee], whether its justified or not, I don’t know, and, in effect says, you’re gone.

I don’t want you anymore. And I want to see all my papers. [COUNSEL FOR APPELLANT]: More than in effect, she fires him. THE COURT: Right. I want to see all my papers.

So she gets the papers and says—I take it from what you’ve said in your papers, and what she has said—she gets the papers and it becomes apparent to her that Touhey hadn’t reviewed these. [COUNSEL FOR APPELLANT]: Correct. THE COURT: And once again she’s getting shafted. [COUNSEL FOR APPELLANT]: Yes. THE COURT: And, as she says, “I didn’t do any thorough analytical analysis of it, but”—I mean, she’s already fired him because she didn’t think he did a good job, gets papers now that buttress her argument that he didn’t do a good job, and then marches into court four days later and said, Hey Judge, everything is okay. It’s a fair and equitable settlement.

(Emphasis added). Appellant’s malpractice lawyer observed that appellant “felt [at] the [divorce] hearing that [she] had to, in effect, carry through on [her] agreement,” which she made with Dr. Alfert before she discovered that Touhey had failed to review the financial records. Moreover, because appellant relied on ⁷⁰¹ Touhey’s advice when she accepted the additional $50,000 in settlement, appellant’s attorney maintained that she “had no chance to do any kind of exhaustive, comprehensive analytical processing of what was in the box of documents.” Vogel’s attorney emphasized that appellant hired Touhey to establish that Dr. Alfert “hoodwinked” her with respect to the original Property Agreement and, at the divorce hearing in May 2001, appellant disclosed that she was dissatisfied with appellee’s performance. Appellant’s counsel insisted that a party’s prior settlement in an underlying case does not preclude a subsequent legal malpractice action.

Because appellant had acted mistakenly but in good faith, she insisted that judicial estoppel did not preclude her from pursuing the malpractice case. The court disagreed, ruling that appellant’s malpractice claim was barred by judicial estoppel. It said: The Court agrees with the arguments of the defendant Touhey that, in fact, judicial estoppel is present in this case. And, accordingly, the Court will order that [appellant’s] complaint is dismissed with prejudice. [IJt just seems to me that under the circumstances, that when a person who is particularly knowledgeable as a lawyer stands up, after being dissatisfied with her own lawyer and says, after having the documents in her hands that she later is going to use as the basis of a malpractice action, says that everything is fair and equitable, I don’t see how this can proceed in violation of the judicial estoppel rule.

For those reasons the Court is going to grant the motion to dismiss, which really, in effect, because it brings in outside items is a motion for summary judgment. We shall include additional facts in our discussion. DISCUSSION I. Vogel argues that the court erred in dismissing her case based on the doctrine of judicial estoppel. She asserts that ⁷⁰² the doctrine is designed to protect courts from “egregious conduct” perpetrated by a litigant.

Vogel contends that “application of the doctrine ... requires an element of wrongful misconduct that is conspicuously absent in the instant proceeding.” Because she had no “intent to deceive whatsoever,” and lacked full knowledge of important facts, appellant maintains that the doctrine of judicial estoppel is not applicable. Appellant concedes, as she must, that at the time of the divorce settlement “she was generally aware of [appellee’s] lack of care in discovering her husband’s assets.” But, she asserts that she “learn[ed] subsequently, on careful review of the papers with her accountant, that the agreement was grossly unfairf.]” Vogel insists that she acted in good faith, and claims her conduct was the result of appellee’s negligence. In her view, “an innocent inconsistent statement, where the declarant is not in possession of all the relevant facts, is insufficient to support the application of the [judicial estoppel] doctrine.” In this regard, Vogel emphasizes that she obtained Dr. Alfert’s documents from appellee after she reached a binding settlement agreement with Dr. Alfert, pursuant to appellee’s recommendation. Although Vogel had possession of Dr. Al-fert’s documents by the time of the court hearing on May 4, 2001, she contends that she lacked the financial acumen to analyze the records, and had neither the right nor the obligation to repudiate the prior settlement agreement with Dr. Alfert.

Thus, appellant asserts: “Rather than be castigated, Appellant should be credited for doing the right thing under difficult circumstances.” Additionally, claiming “a client’s agreement to settle a case does not bar a subsequent [malpractice] suit by the client against her lawyer for negligence in recommending the settlement,” appellant urges us to reverse. According to appellant, the doctrine of judicial estoppel does not apply here, because “she clearly did not have full knowledge of what was in her husband’s financial documents when she announced that the divorce settlement was ‘fair and equitable.’ ” ⁷⁰³ Appellee vigorously disputes appellant’s contention that, in order for judicial estoppel to apply, he must show that she acted with an intent to deceive. According to appellee, “the doctrine of judicial estoppel has been applied by the Court of Appeals in circumstances where a party’s inconsistent position was not attributable to any willful or intentional misrepresentation.” Therefore, appellee seeks to bind Vogel to her assertion on May 4, 2001, when she announced that she was “fully aware of the issues” and that the settlement was “fair and equitable.” Appellee contends: “Without question [appellant] was chargeable with knowledge of the facts before she told the court that the property settlement agreement was ‘fair and equitable’.... ” Thus, he urges the Court to preclude appellant “from taking an inconsistent position by asserting that the settlement to which she agreed was not ‘fair and equitable.’ ” He reasons: [Appellant] was not compelled to agree in open court that the settlement agreement in the underlying matter was “fair and equitable____” She had the option, if she so chose, to say that the settlement was not appropriate and/or to request more time to review the financial records and obtain new counsel. She elected to do neither.

Further, appellee distinguishes the malpractice cases cited by appellant, noting that in those cases “the disappointed legal malpractice plaintiffs all discovered their attorneys’ negligence after they finalized their settlements.” Characterizing appellant as a “sophisticated party” with “legal training,” Touhey maintains that she “had sufficient time to review the financial records and reach an independent judgment with respect to them.” II. Appellee’s motion was styled as a motion to dismiss, but it was replete with references to the transcript of the hearing of May 4, 2001, which was attached as an exhibit to the motion. Additionally, in her opposition, appellant referred to numerous exhibits that were appended to her opposition. Because the ⁷⁰⁴ court considered those “outside items,” the parties and the court below recognized that appellee’s motion to dismiss was transformed to a motion for summary judgment, pursuant to Maryland Rule 2-322(c). 7 Accordingly, we turn to consider the standard of review applicable to a summary judgment ruling.

Maryland Rule 2-501 establishes a two-part test for summary judgment. “In deciding a motion for summary judgment ... the trial court must decide whether there is any genuine dispute as to material facts and, if not, whether either party is entitled to judgment as a matter of law.” Bagwell v. Peninsula Reg'l Med. Ctr., 106 Md.App. 470, 488 , 665 A.2d 297 (1995), cert. denied, 341 Md. 172 , 669 A.2d 1360 (1996); see Todd v. Mass Transit Admin., 373 Md. 149, 154-55 , 816 A.2d 930 (2003); From the Heart Church Ministries, Inc. v. African Methodist Episcopal Zion Church, 370 Md. 152 , 168 n. 15, 803 A.2d 548 (2002); Beatty v. Trailmaster Prods., Inc., 330 Md. 726, 737 , 625 A.2d 1005 (1993); see also Cooper v. Berkshire Life Ins. Co., 148 Md.App. 41, 56 , 810 A.2d 1045 (2002), cert. denied, 373 Md. 407 , 818 A.2d 1105 (2003). A material fact is one that will alter the outcome of the case, depending upon how the factfinder resolves the dispute.

King v. Bankerd, 303 Md. 98, 111 , 492 A.2d 608 (1985); Miller v. Fairchild Indus., Inc., 97 Md.App. 324, 340 , 629 A.2d 1293 , cert. denied, 333 Md. 172 , 634 A.2d 46 (1993). Neither general allegations nor mere formal denials are suffi- ⁷⁰⁵ dent to establish a material factual dispute. See King, 303 Md. at 112 , 492 A.2d 608 ; see also Herrington v. Red Run Corp., 148 Md.App. 357, 361 , 811 A.2d 894 (2002). Once the movant demonstrates the absence of a dispute concerning material facts, the burden shifts to the non-moving party to identify “with particularity the material facts that are disputed.” Md. Rule 2-501(b). “[T]he mere existence of a scintilla of evidence ... is insufficient to preclude the grant of summary judgment....” Beatty, 330 Md. at 738 , 625 A.2d 1005 .

Rather, the party opposing summary judgment must present admissible evidence that is sufficiently detailed and precise to illuminate its nature. Beatty, 330 Md. at 737-38 , 625 A.2d 1005 . Speculation concerning the existence of unproduced evidence will not defeat the motion. A.J. Decoster Co. v. Westinghouse Elec.

Corp., 333 Md. 245, 262 , 634 A.2d 1330 (1994). Further, if the motion is “supported by an affidavit or other statement under oath, an opposing party who desires to controvert any fact contained in it may not rest solely upon allegations contained in the pleadings, but shall support the response by an affidavit or other written statement under oath.” Maryland Rule 2-501(b). In resolving a motion for summary judgment, the trial court may not determine the credibility of witnesses. Impala Platinum, Ltd. v. Impala Sales (U.S.A.), Inc., 283 Md. 296, 326 , 389 A.2d 887 (1978); Cooper, 148 Md.App. at 56 , 810 A.2d 1045 .

Rather, the court must resolve against the moving party all disputes of fact, along with all inferences that can be drawn from the evidence. Todd, 373 Md. at 155 , 816 A.2d 930 ; Frederick Road Ltd. P’ship v. Brown & Sturm, 360 Md. 76, 94 , 756 A.2d 963 (2000). If an appellate court is satisfied that no material facts are in dispute, it must determine whether the trial court was legally correct. Todd, 373 Md. at 155 , 816 A.2d 930 ; Beyer v. Morgan State Univ., 369 Md. 335, 360 , 800 A.2d 707 (2002); Goodwich v. Sinai Hosp. of Baltimore, Inc., 343 Md. 185, 204 , 680 A.2d 1067 (1996); Goldstein v. 91st St. Joint Venture, 131 Md.App. 546, 560 , 750 A.2d 602 , cert. denied, 360 Md. 273 , 757 ⁷⁰⁶ A.2d 809 (2000).

In our de novo review,