Tovar v. Regan Zambri Long

317 A.3d 884

Roger TOVAR, Appellant/Cross-Appellee,

v.REGAN ZAMBRI LONG, PLLC, et al., Appellees/Cross-Appellants.

Nos. 23-CV-0165 & 23-CV-0217

District of Columbia Court of Appeals.

Argued March 21, 2024

Decided June 27, 2024

Appeal from the Superior Court of the District of Columbia (2022-CA-002053-M), (Hon. Ebony M. Scott, Trial Judge)

Benjamin R. Ogletree, with whom Faith Kalman Reyes, Santa Fe, NM, was on the brief, for appellant/cross-appellee.

Paul J. Maloney, Washington, DC, with whom Stephen G. Rutigliano was on the brief, for appellees/cross-appellants.

Before Howard and Shanker, Associate Judges, and Thompson, Senior Judge.

Shanker, Associate Judge:

Appellant Roger Tovar brought a legal malpractice action against the law firm Regan Zambri Long, PLLC, and two of its attorneys (collectively, "Regan"), alleging that, in representing him in a negligence action against McKesson Corporation—which ultimately settled while it was on appeal following a favorable verdict for Mr. Tovar—Regan failed to assert a particular claim for damages. Mr. Tovar alleges that because Regan failed to seek damages for his future medical care expenses, he lost the opportunity to win a multi-million-dollar award.

Regan moved to dismiss the complaint or in the alternative for summary judgment. The trial court granted Regan’s motion to dismiss on two alternative grounds: (1) Mr. Tovar, in settling his negligence action against McKesson, released Regan from future liability; and (2) Regan’s decision to forgo a claim for future medical care expenses was protected under the judgmental immunity doctrine. Mr. Tovar appeals, contending that (1) the trial court erred in granting the motion to dismiss because the court considered material outside of the complaint and applied the wrong standard for dismissal under Super. Ct. Civ. R. 12(b)(6), and (2) to the extent the court essentially granted summary judgment for Regan, it did so by relying on erroneous or disputed facts and without granting Mr. Tovar’s Super. Ct. Civ. R. 56(d) request for additional discovery so that he could oppose Regan’s summary judgment motion. Regan cross-appeals, arguing that the trial court erred in finding that Mr. Tovar’s claim was not barred by the statute of limitations as a ground to dismiss the claim.

We affirm the trial court’s statute-of-limitations determination, although on different grounds, but otherwise reverse the dismissal of the complaint and remand for further proceedings.¹

I. Background

A. Factual Background

Because the trial court purportedly granted a motion to dismiss, we derive the following facts, which we take to be true, from Mr. Tovar’s complaint. In 2012, an employee of McKesson Corporation rear-ended Mr. Tovar’s car, which was stopped at a red light. Mr. Tovar suffered several injuries, including traumatic brain injury ("TBI"), which caused cognitive impairment, short-term memory loss, chronic fatigue syndrome, and other physical ailments. During his treatment, Mr. Tovar’s TBI-related symptoms worsened, and he could no longer work as an information technology security professional.

Mr. Tovar sued McKesson and its employee and hired Regan Zambri Long, PLLC, to represent him. Regan attorney Paul Cornoni developed Mr. Tovar’s litigation strategy and tried the case. Although Mr. Tovar’s TBI was permanent and would require a lifetime of medical care, Regan failed to assert a claim for Mr. Tovar’s future medical expenses and failed to inform him of this plan. Instead, Regan requested damages only for Mr. Tovar’s bodily injuries and lost future wages.

At the end of the trial, the jury awarded Mr. Tovar $500,000 for bodily injuries and $3,297,573 in lost wages. McKesson appealed but then the parties entered into a settlement agreement, and this court dismissed the appeal. According to the complaint, had Regan sought future medical expenses, Mr. Tovar "would have, more likely than not, presented evidence of his need for extensive future medical treatment and care at trial, would have been successful, received a multi-million-dollar award to compensate [him] for the lifetime of future care, and would have collected said award from" McKesson.

The parties also briefed Regan’s alternative motion for summary judgment, and the following facts appear to be undisputed (although the trial court did not so find because it stated that it was granting Regan’s motion to dismiss, not its summary judgment motion). Before trial, Regan believed that Mr. Tovar could achieve a more favorable damages verdict by forgoing compensation for past medical expenses because those expenses could act as a low anchor for the jury. Regan explained this to Mr. Tovar, who approved the strategy. Following the trial, Mr. Tovar was happy with the verdict amount. After McKesson appealed the verdict, Mr. Tovar knowingly and voluntarily entered into a settlement agreement with McKesson and settled the matter for the full amount of damages awarded by the jury.

B. Procedural History

In 2022, Mr. Tovar filed a complaint against Regan, asserting one count of legal malpractice/professional negligence for its failure to pursue compensation for future medical expenses. Mr. Tovar alleges that by omitting this claim, Regan breached its duty of care, and that but for the breach, Mr. Tovar would have received a multi-million-dollar award for a lifetime of TBI-related medical expenses.

Regan filed a motion to dismiss and/or for summary judgment, pursuant to Super. Ct. Civ. R. 12(b)(6) and 56, respectively. First, Regan argued that Mr. Tovar’s complaint should be dismissed because it was (1) barred by the statute of limitations, as it was filed more than three years after Mr. Tovar knew of the alleged harm and it was not tolled by the Superior Court’s COVID-19 tolling orders, (2) precluded by Mr. Tovar’s knowing and voluntary settlement of the underlying matter, and (3) speculative as to whether Mr. Tovar would have obtained a higher award had evidence of his future medical care expenses been presented at trial. Second, Regan argued that it was entitled to judgment as a matter of law because (1) any alleged error was protected under the judgmental immunity doctrine, (2) Mr. Tovar consented to the underlying trial strategy, and (3) Mr. Tovar could not meet his burden of establishing that Regan’s alleged error proximately caused him injury.

Mr. Tovar opposed, arguing that dismissal or summary judgment in favor of Regan would be improper because the complaint sufficiently pleaded a cause of action and additional discovery under Super. Ct. Civ. R. 56(d) was necessary to decide the summary judgment motion. The trial court held a hearing, and the parties presented arguments concerning both motions.

In a written order, the trial court ruled that Mr. Tovar’s claim was not time-barred because the limitations period had been tolled, but granted Regan’s motion to dismiss on two alternative grounds.² First, relying on a release clause in the settlement agreement between Mr. Tovar and McKesson, the court found that Mr. Tovar had knowingly and voluntarily released Regan from future claims stemming from the underlying matter. Second, the court found that Regan was protected from liability under the judgmental immunity doctrine because it had made a strategic decision to forgo future medical care costs.

The court stated that it was not reaching Regan’s alternative request for summary judgment but observed that, if it had reached the issue, the following facts would have warranted granting summary judgment for Regan: (1) Regan’s decision to not assert a claim for future medical expenses was reasonable and a protected exercise of legal judgment; (2) Mr. Tovar approved the trial strategy; (3) Mr. Tovar knowingly and voluntarily settled the underlying negligence matter; and (4) Mr. Tovar failed to present an expert to support his claim that Regan breached its duty of care.

Accordingly, the trial court dismissed Mr. Tovar’s complaint with prejudice. The court did not explicitly address Mr. Tovar’s request for additional time for discovery.

This appeal and cross-appeal followed.

II. Analysis

Boiled to their essence, Mr. Tovar’s claims in this court are that the trial court purportedly granted a motion to dismiss but it did not limit its analysis of his complaint to the question whether, on its face, it pleads a cognizable cause of action; and, to the extent the court essentially granted Regan summary judgment, it relied on erroneous or disputed facts and improperly denied him additional discovery under Super. Ct. Civ. R. 56(d).

We agree that the trial court erred in granting Regan’s motion to dismiss. Although the court did not err in considering the settlement agreement, the agreement was not an appropriate basis for dismissing Mr. Tovar’s claim because it did not release Regan from future liability.

As for the court’s judgmental-immunity ruling, we review that ruling as a grant of summary judgment because judgmental immunity is an affirmative defense and the court considered matters outside the complaint. Given the record before us, we are unable to resolve whether summary judgment was proper because the court failed to address Mr. Tovar’s request for additional discovery before ruling on summary judgment.

Accordingly, we vacate the trial court’s order and remand for the court to consider Mr. Tovar’s Rule 56(d) request for additional discovery before determining whether, based on undisputed material facts, summary judgment is appropriate on grounds of judgmental immunity.

On cross-appeal, Regan claims that the trial court erred in denying its motion to dismiss on statute-of-limitations grounds. Specifically, Regan asserts that the trial court erroneously found that the limitations period had been tolled under the Superior Court’s emergency COVID-19 orders (although Regan agrees with the trial court that the limitations period should be calculated using three consecutive 365-day periods despite an intervening leap...