United States District Court, D. Maryland
DEBORAH K. CHASANOW United States District Judge.
pending and ready for resolution in this attorney malpractice
case is a motion for summary judgment filed by Defendants Dow
Lohnes PLLC and Leslie H. Wiesenfelder
(“Defendants”). (ECF No. 91). The issues have
been fully briefed, and the court now rules, no hearing being
deemed necessary. Local Rule 105.6. For the following
reasons, the motion for summary judgment will be granted in
part and denied in part.
Facts of the Underlying Litigation
attorney malpractice case stems from Defendants'
representation of Plaintiff Al Jazeera International
(“Plaintiff”) in a contract dispute with Winmar,
Inc. In 2005, Plaintiff entered into a construction contract
with Winmar, Inc. to build a television studio and offices in
Washington, D.C. (the “Contract”). (ECF No. 99,
at 7). Janson Design Group (the “Architect”) was
the architect for the project. (Id.). The Contract
established a payment process under which Winmar would submit
periodic invoices (“Payment Applications”) for
review by the Architect as Plaintiff's agent; if the
Architect was satisfied, it would certify these Payment
Applications to be paid by Plaintiff. (Id. at 8).
October and December 2005, Winmar submitted four Payment
Applications totaling $1, 838, 140, and the Architect
certified all four of them. (Id.). Concerned that
Winmar had not completed all of the work for which it was
seeking payment, Plaintiff paid only one of the invoices, in
the amount of $474, 677. (Id. at 9). Winmar sent
Plaintiff a notice of default on December 22, asserting that
it was in breach of the Contract and directing it to cure the
breach by paying the remaining certified amounts.
(Id.). Defendants advised Plaintiff that even if
Winmar had not completed the appropriate amount of work, the
contract language was such that non-payment could be
considered a breach by a reviewing court. (Id. at
9-10). Given the billing dispute, Plaintiff engaged a
construction manager to review the state of the project. (ECF
No. 50 ¶ 22). He concluded that Winmar had overbilled
Plaintiff, and, consequently, Plaintiff made no further
January 5, 2006, the Architect sent a letter to Winmar,
rescinding its certification for the three unpaid invoices,
declaring 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were withdrawn on account of “a number of discrepancies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.” (ECF No. 99, at
The Architect asked Winmar for additional documents
supporting the invoices, which Winmar refused to provide.
(Id. at 10-11). Plaintiff then terminated the
Contract for convenience. (Id. at 12). Plaintiff
soon after sent a letter to Winmar and the Architect pursuant
to the Contract's process for resolving billing disputes.
Winmar, Inc. v. Al Jazeera Int'l, 741 F.Supp.2d
165, 177 (D.D.C. 2010). The letter stated that, according to
Plaintiff's calculations, it had overpaid Winmar by
approximately $200, 000. Id.
apparently in response to Plaintiff's attempt to confirm
the status of the single payment it had made, Plaintiff's
bank, Qatar National Bank (“QNB”), erroneously
transferred the $474, 677 payment a second time. Id.
at 176. Instead of returning the money to QNB, Winmar
construed this as a payment for one of the other certified
Payment Applications and returned the difference between the
payment and Application amount, an extra $119, 380, directly
to Plaintiff. Id. at 177. Plaintiff evidently
considered this payment to be a response to its $200, 000
demand, so, at that point in March of 2006, Plaintiff
believed it was owed roughly $80, 000. Given the amount in
dispute, Plaintiff decided that it would not make economic
sense to file suit against Winmar to recover that amount.
(ECF No. 99, at 27).
24, 2006, QNB filed suit against Winmar in the United States
District Court for the District of Columbia to recover the
$474, 677 duplicate payment. (Id. at 13). Winmar
then filed a third-party complaint against Plaintiff,
alleging that Plaintiff had breached the Contract by not
making payments pursuant to the Architect's
certifications. Plaintiff retained Defendants to represent it
and filed a counterclaim against Winmar, denying any
liability and asserting that Plaintiff had overpaid Winmar
pursuant to the termination for convenience provisions of the
Contract. In its answer, Winmar alleged that, prior to the
time Plaintiff terminated the Contract for convenience,
Plaintiff had materially breached the Contract and,
therefore, Winmar was entitled to the full amount of every
invoice certified by the Architect, more than $1.7 million.
Winmar, 741 F.Supp.2d at 177-78.
Instant Malpractice Claims
now alleges that Winmar's suit raised a substantial issue
regarding the accuracy of the Architect's certification,
but that Defendants failed to investigate the Architect's
role in the events, including whether the Architect breached
its duty of care. (ECF No. 50 ¶ 29). It argues that
Defendants' failure to investigate the Architect left
Plaintiff with no factual defense to Winmar's principal
claim: i.e., that the certifications were prima
facie evidence of the amount Plaintiff owed Winmar.
(Id. ¶ 31). Consequently, when Winmar raised
the certifications at trial, Defendants offered no rebuttal,
leaving Plaintiff greatly exposed. (Id. ¶ 34).
September 29, 2010, Judge Gladys Kessler of the United States
District Court for the District of Columbia issued a
memorandum opinion and order, granting judgment in favor of
Winmar and against Plaintiff. Winmar, 741 F.Supp.2d
at 196. The court found that “Al Jazeera offered no
evidence at trial showing how the Architect arrived at the
decision to certify the Payment Applications. . . . In the
absence of any evidence from Al Jazeera that the
Architect neglected its duties under the Contract in
making the certification decisions, the certified Payment
Applications are the most reliable evidence of the services
performed by Winmar in the periods covered.”
Id. at 182-183. Judge Kessler gave little weight to
the subsequent rescissions, which were based “in large
part on [the Architect's] conclusion that Winmar is
required to provide supporting documentation, ” a
justification she found was not valid under the Contract.
Id. at 182. She also stated that she “has
never been able to understand why neither party ever called
the Architect to testify.” Id. at 182 n.17.
Judgment was granted in favor of Winmar for a total of $1,
472, 625.50. Id. at 196. Although Plaintiff appealed
the judgment to the United States Court of Appeals for the
District of Columbia Circuit, it decided to settle the
dispute for $2, 000, 000 while that appeal was pending rather
than run the risk of an unfavorable outcome on
September 19, 2013, Plaintiff filed a complaint in this court
for legal malpractice, citing diversity jurisdiction. (ECF
No. 1). Plaintiff alleges that Defendants, as its
attorneys during the Winmar litigation, owed it a duty of
care to conduct a thorough and competent investigation of the
facts and circumstances surrounding Plaintiff's dispute
with Winmar and to exercise sound and reasonable judgment in
planning and executing a defense to Winmar's claims
against Plaintiff. According to Plaintiff, Defendants
breached this duty by 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, Plaintiff would have
prevailed in the Winmar litigation. In the alternative,
Plaintiff maintains that Defendants breached the duty of care
by failing to advise Plaintiff to file suit against the
Architect or to join the Architect as a defendant in the
the court denied Defendants' motion to dismiss (ECF No.
15), the parties engaged in discovery. Defendants submitted
the instant motion for summary judgment on April 16, 2016.
(ECF No. 91). Plaintiff responded (ECF No. 99), and
Defendants replied (ECF No. 102).
Standard of Review
motion for summary judgment will be granted only if there
exists no genuine dispute as to any material fact and the
moving party is entitled to judgment as a matter of law.
See Fed.R.Civ.P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986);
Emmett v. Johnson, 532 F.3d 291, 297 (4th
Cir. 2008). A dispute about a material fact is genuine
“if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Liberty
Lobby, 477 U.S. at 249. In undertaking this inquiry, a
court must view the facts and the reasonable inferences drawn
therefrom “in the light most favorable to the party
opposing the motion, ” Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting
United States v. Diebold, Inc., 369 U.S. 654, 655
(1962)); see also EEOC v. Navy Fed. Credit Union,
424 F.3d 397, 405 (4th Cir. 2005), but a
“party cannot create a genuine dispute of material fact
through mere speculation or compilation of inferences.”
Shin v. Shalala, 166 F.Supp.2d 373, 375 (D.Md. 2001)
prevail on a motion for summary judgment, the moving party
generally bears the burden of showing that there is no
genuine dispute as to any material fact. No genuine dispute
of material fact exists, however, if the nonmoving party
fails to make a sufficient showing on an essential element of
his case as to which he or she would have the burden of
proof. Celotex, 477 U.S. at 322-23. Therefore, on
those issues on which the nonmoving party has the burden of
proof, it is his responsibility to confront the summary
judgment motion with an “affidavit or other evidentiary
showing” demonstrating that there is a genuine issue
for trial. See Ross v. Early, 899 F.Supp.2d 415, 420
(D.Md. 2012), aff'd, 746 F.3d 546
(4th Cir. 2014).
succeed on a legal malpractice claim under District of
Columbia law, a plaintiff must show that: (1) the defendant
was employed as the plaintiff's attorney; (2) the
defendant breached a reasonable duty; and (3) that breach
resulted in, and was the proximate cause of, the
plaintiff's loss or damages. Martin v. Ross, 6
A.3d 860, 862 (D.C. 2010) (citing Niosi v. Aiello,
69 A.2d 57, 60 (D.C. 1949)). “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.”
Niosi, 69, A.2d at 60. “[I]f, notwithstanding
the negligence, the client had no cause of ...