Wooddy v. Mudd

Smith, J., delivered the opinion of the Court. The appellant, Louise Rossiter Wooddy, sued her former attorney alleging “breach of professional ethics, malpractice, negligence, [and] conflict of interest”. A jury returned a verdict in favor of the attorney, F. DeSales Mudd, the appellee. Mrs. Wooddy in her appeal raises a number of questions which we shall not be obliged to answer for in Rippon v. Mercantile-Safe Dep., 213 Md. 215 , 131 A. 2d 695 ²³⁷ (1957), Judge (later Chief Judge) Prescott said for this Court: “[T]his Court has frequently held that in the interest of the orderly administration of justice and to avoid useless expense to litigants, it is the policy of this Court not to reverse for harmless error, and the burden is on the appellant in all cases to show prejudice as well as error.

Sieland v. Gallo, 194 Md. 282 , 71 A. 2d 45 ; Balto. Transit Co. v. Castranda, 194 Md. 421 , 71 A. 2d 442 .” Id. at 222. A motion for a directed verdict was filed on behalf of Mudd at the end of all of the evidence. The trial judge (Bowen, J.) reserved decision pursuant to Maryland Rule 552 c.

After the jury’s verdict he announced that were he to rule he would have granted the motion. We conclude that this motion should have been granted. Accordingly, if there is error on any of the points raised, it is not prejudicial error. We, therefore, shall affirm the judgment of the trial court and it becomes necessary to discuss only the issues presented by that motion.

In Maryland Casualty Co. v. Price, 231 F. 397 (4th Cir. 1916), it is said: “In a suit against an attorney for negligence, the plaintiff must prove three things m order to recover: (1) The attorney’s employment; (2) his neglect of a reasonable duty; and (3) that such negligence resulted in and was the proximate cause of loss to the client.” Id. at 401 . This statement has been quoted by many authorities and was quoted by this Court in Kendall v. Rogers, 181 Md. 606, 611-612 , 31 A. 2d 312 (1943). In Niosi v. Aiello, 69 A. 2d 57 (Mun. Ct. App. D. C. 1949), the court said: “The rule to be applied in a case where an attorney is accused of negligence in the conduct ²³⁸ 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; or that if conduct of an attorney with respect to litigation results in no damage to his client the attorney is not liable.

Unless a party has a good cause of action against the party proposed to be sued, the first party loses nothing by the conduct of his attorney even though the latter were guilty of gross negligence.” Id. at 60 . The court then went on to quote from Maryland Casualty Co. v. Price, supra, describing the portion of the opinion quoted above as a succinct statement of the rule. See also Oda v. Highway Insurance Company, 44 Ill.App.2d 235 , 194 N.E.2d 489, 497 (1963); Getchell & Martin Lumber & Mfg. Co. v. Employers’ Liability Assur.

Corp., Ltd., 117 Iowa 180 , 90 N. W. 616 , 62 L.R.A. 617 (1902) ; McLellan v. Fuller, 226 Mass. 374 , 115 N. E. 481 (1917) ; Annot.: 45 A.L.R.2d 5 (1956), entitled “Attorney’s liability for negligence in preparing or conducting litigation”, §§ 5-8; 7 Am.Jur.2d Attorneys at Law, § 188 (1963); 7 C.J.S. Attorney and Client, § 146 (1937); and 2 Poe, Pleading and Practice (Tiffany’s Ed. 1925), § 30. The latter states: “For any misconduct of attorneys by which pecuniary injury is occasioned to clients, they are responsible in a civil action for damages commensurate to the injury, and they are liable also for the want of such skill, care and diligence as men of the legal profession commonly possess and exercise in such matters of professional employment; but for errors of judgment honestly committed they are not liable, even though such errors be attended with loss to the client. Their undertaking is that they will well and faithfully, with reasonable diligence, and to the best of their skill and ability, perform their duty; ²³⁹ and their civil liability is accordingly restricted to cases of fraud, negligence and positive misconduct.” See also §§ 31-32 and Cochrane v. Little, 71 Md. 323, 331-332 , 18 A. 698 (1889). With that background of the law, we turn to the facts.

Unfortunate disagreements had arisen between Mrs. Wooddy and her husband, Dr. Arthur Overton Wooddy. 1 Mrs. Wooddy retained Mr. Mudd to represent her. Dr. and Mrs. Wooddy had been living apart under the same roof for some time prior to the time Mrs. Wooddy first consulted Mr. Mudd in February of 1965. When efforts to reach a settlement between the parties failed, Mr. Mudd filed a bill of complaint on behalf of Mrs. Wooddy based upon constructive desertion by virtue of her husband’s alleged physical abuse. This was filed on June 28, 1965.

The husband countered with a cross bill on his own behalf based upon desertion. After trial a decree was passed on October 18, 1966, granting the husband a divorce a vinculo matrimonii from the wife on the ground of her desertion. Stripped of all the excess verbiage, which in another setting might be called “salesman’s ‘puffing’ ”, the contentions of Mrs. Wooddy may be summarized as four in number, namely (1) the divorce suit should have been on the ground of adultery and Mr. Mudd was negligent in not bringing the action on that ground; (2) Mr. Mudd negligently examined title to the Jarwood Clinic property and negligently advised Mrs. Wooddy that she and Dr. Wooddy owned an undivided one-half interest in the property as tenants by the entireties when the half interest was in fact owned solely by Dr. Wooddy, the contention being that if Mrs. Wooddy had known this the divorce action would have been based upon adultery; (3) there was a conflict of interest in that Mr. Mudd was chairman of the advisory board and attorney for the La Plata ²⁴⁰ branch of Maryland National Bank and while so connected permitted Mrs. Wooddy to sign papers by which a small part of the Jarwood Clinic property was conveyed to a corporation which in turn leased to Maryland National Bank, Mrs. Wooddy receiving one-fourth of the stock of the corporation; and (4) Mr. Mudd was guilty of a conflict of interest in that he executed an affidavit as to the bona fides of the consideration as agent for Suburban Trust Company in a $360,000.00 deed of trust from corporations in which Dr. and Mrs. Wooddy had an interest and at the same time advised Mrs. Wooddy to personally endorse a note pursuant to the original loan commitment. It was contended that the latter two transactions should have been used to effectuate a desired settlement.

We shall examine each of the contentions of Mrs. Wooddy reciting such additional facts as may be necessary. All of the facts are examined bearing in mind that the evidence and all logical and reasonable inferences deducible therefrom must be considered in a light most favorable to the appellant. Ackerholt v. Hanline Brothers, 253 Md. 13,14 , 252 A. 2d 1 (1969). DIVORCE ACTION The evidence presented by Mrs. Wooddy as to the negligence of Mr. Mudd in not bringing a divorce action on the ground of adultery fell far short of establishing that there was a sound basis for charging Dr. Wooddy with adultery.

Under the provisions of Code (1965 Repl. Vol.), Art. 35, § 9 Mr. Mudd was called as an adverse witness. Mrs. Wooddy was bound by his testimony unless it was contradicted. Lusby v. Nethken, 256 Md. 469, 476 , 260 A. 2d 640 (1970) ; First Nat’l Realty v. S.R.C., 255 Md. 605, 615-16 , 258 A. 2d 419 (1969) ; Larsen v. Romeo, 254 Md. 220, 225 , 255 A. 2d 387 (1969) ; and Williams v. Wheeler, 252 Md. 75 , 249 A. 2d 104 (1969).

Mr. Mudd said, “Well, I informed her, I am sure, that on the basis of the facts she gave me, the only ground she had was constructive desertion.” He went on to say ²⁴¹ that he “thought that she had a fair chance of obtaining a divorce”, and that he was instructed to endeavor to obtain a property settlement agreement, along with a conversion of the separation into a voluntary separation which would create a ground for divorce 18 months later. He said that he attempted to do this up to the time the suit was filed and. “even after the suit”, he “guess [ed]”. In the trial of this case three women were mentioned with whom Dr. Wooddy was alleged to have been involved. With reference to one, Mrs. Wooddy admitted that she had no evidence other than Dr. Wooddy’s admission.

On cross-examination she said relative to that woman, “[I]t was a known fact between Mr. Mudd and myself that this was something that we probably would not be able to prove.” Mr. Mudd testified that when this woman’s name was presented to him he immediately took the deposition of Dr. Wooddy. There came info this record Dr. Wooddy’s statement at the deposition that he at no time ever had had sexual intercourse with a woman other than his wife and that he had not informed his wife that he had committed adultery with any woman. The second woman named was a hospital technician who occupied an apartment in the same apartment house in which Dr. Wooddy resided after he moved out of the Wooddy home. Testimony relative to this young lady came solely through Mr. Mudd.

If was alleged that Mrs. Wooddy repeated to him that the then seven-year-old son of Dr. and Mrs. Wooddy had reported to his mother that when he visited with his father Dr. Wooddy and this young lady had one or more meals together. According to the testimony, Dr. Wooddy moved into this apartment house in September of 1965. Mr. Mudd said that Mrs. Wooddy’s complaint to him was that this was an unwholesome atmosphere for the young boy. He called counsel for Dr. Wooddy and registered a complaint.

He was met with the explanation that the doctor was on call at the hospital, that Mrs. Wooddy knew this fact, and when the child was with him Dr. Wooddy thought it was his responsibility to have somebody aware of the boy’s presence if ²⁴² he were called out for an emergency. When pushed further on the matter Mr. Mudd said it was his position, “that all ladies are respectable until [he had] information to the contrary. And the fact that they had breakfast together, father and son and a neighbor, wasn’t any evidence of an affair.” He further said that Mrs. Wooddy at no time asked him to file suit based on adultery. Upon being questioned further on this he said: “Well, if she did I don’t recollect that she did.

If she did I’d say, ‘Well, we have got to have some basis for this before we file.’ I would not allow a client to make affidavit to a charge such as that without some foundation.” In response to a suggestion by way of a question from Mrs. Wooddy’s attorney that Mr. Mudd should have had his own office check on the allegations of adultery, Mr. Mudd said: “Well, I may be wrong, Mr. Skeens, but we do not have a law practice where we go around having lawyers or members of the firm peep in bedroom windows and try to manufacture cases, no.” There was an intimation that a young man who was a part time employee of the motel in which Dr. and Mrs. Wooddy had an interest had claimed to have seen Dr. Wooddy and a third woman each enter the same motel room, leaving several hours later in their respective cars. When called as a defense witness this young man unequivocally denied that he ever at any time had seen the woman in question and Dr. Wooddy in a motel room or that he had ever told Mr. Mudd (as claimed by Mrs. Wooddy) that he had seen them together. The woman in question was called as a witness by Mrs. Wooddy. She testified that she was an employee of a nearby hospital, that she had known Dr. Wooddy for about 18 years, and that she had been to Dr. Wooddy’s motel room on occasions when she had called ahead and either had taken his ²⁴³ mail to him or had taken his car to him.

On cross-examination Mrs. Wooddy admitted that she at no time talked with Mr. Mudd about any adulterous activity between Dr. Wooddy and this woman. The evidence we have recited constitutes all of the evidence presented in the trial court on the issue of adultery. Mr. Mudd’s testimony was not contradicted. It thus will be seen that there was presented to the trial court no reasonable basis upon which Mr. Mudd could be charged with negligence for not proceeding with divorce on the grounds of adultery.

Fundamentally, the matter came down to one of judgment, well illustrated by the reply of Mr. Mudd to a question as to whether he had mentioned to Mrs. Wooddy the possibility of injury to the doctor’s reputation, his leaving the area, etc., the record on reply being: “Many times, not by way of dissuading her from filing for divorce, but by way of explaining to her that even if the information and proof of adultery was available, she might not want to use it; and more particularly, that if she did file for divorce on the grounds of adultery, and there were facts to support it, that it could result in her losing a breadwinner for her children. “As a matter of fact, Mrs. Wooddy’s explanation to me over a period of a couple of years of Dr. Wooddy’s conduct encouraged me to believe that he was an unpredictable man. She and other people told me he’d threatened suicide, she told me that he’d been absent and unaccounted for one time, I think about ten days; had to send the police out to try to locate him. “He threatened to join the Peace Corps, and I did tell her that a man in the Peace Corps, Medical man or not, I didn’t think could afford to pay substantial alimony or support for his children. ²⁴⁴ “And all of that, Mr. Skeens, was in an effort, as feeble as it may have been, on my part to try to assuage the grief and the frustration and the problems of this good woman who had a husband that was doing everything in the world, I thought he could, and that was the reason for the divorce, to harass and irritate his wife. “My whole pitch in the divorce case was that here was an attractive, gentle, genteel woman, she was not a scrub woman, she was a gentle, genteel, educated, refined woman; and that this conduct, even though it was short of adultery, was certainly harassing and cruelty to her. And I had a case to support that. “And, for instance, I think it’s a sin that cries to Heaven for vengeance for a professional man like Dr. Wooddy to tell this woman that he’s going to stand by and watch her disintegrate and lose her mind, and put her in a mental institution, and that is what he said. That’s what she said he said, and we proved it