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Jung v. Mundy

June 25, 2004


Appeal from the United States District Court for the District of Columbia (No. 02cv01421)

Before: Ginsburg, Chief Judge, and Sentelle and Roberts, Circuit Judges.

The opinion of the court was delivered by: Roberts, Circuit Judge

Argued May 11, 2004

In this legal malpractice action, the appellant sued attorneys for litigating against him throughout a multi-faceted probate dispute, causing him to incur legal fees. According to the appellant, the attorneys had a duty not to act adverse to his interests, and their litigation constituted a conflict of interest. The district court granted summary judgment for the attorneys, because the appellant -- after learning of the conflict of interest -- waited beyond the three-year limitations period for malpractice actions before filing suit.

We reverse. The litigation brought by the attorneys, if wrongful as alleged, constituted a continuing tort. Under District of Columbia law, the appellant may pursue claims "for injuries attributable to the part of the continuing tort that was committed within the limitations period immediately preceding the date on which suit [was] brought." Beard v. Edmondson & Gallagher, 790 A.2d 541, 548 (D.C. 2002).

I. Background

The roots of this real-life Bleak House saga doubtless stretch further back in time, but the precipitating event was the death of Lew Gin Gee Jung (Mother Jung) in January 1995. Mother Jung was survived by five children: three daughters, Fay Lee, Yok Jung (Yok), and May Jung (May); and two sons, Bow Jung (Bow) and Wee Jung (Wee). After her death, myriad disputes between Bow, May, Yok, and Wee (Fay Lee did not arrive on the scene until later) plunged the family into nine years of bitter litigation (so far) over the estate and related matters.

This case, one of a half-dozen arising in the wake of Mother Jung's death, concerns Bow's claims against appellees Reginald L. Holt and Mundy, Holt & Mance, P.C. (collectively attorneys), who had been engaged by Mother Jung for estate planning. Wendell Robinson -- Mother Jung's son-in-law and May's husband -- worked for the Mundy, Holt & Mance law firm as a law clerk. After meeting with Mother Jung on more than one occasion, Robinson drafted multiple versions of her will, culminating in a final draft that she was allegedly supposed to sign at a meeting in the summer of 1994. In that draft, Mother Jung described Bow as "my son," appointed him as an alternate Personal Representative, and named him as a beneficiary. Final Draft of Will at 2, 4. The draft will made no mention of May, Robinson's wife. Mother Jung did not sign the final draft of her will at the scheduled meeting, because Robinson "left the correct draft of the Will at [his] home." Compl. ¶ 20. Mother Jung subsequently never signed the will and died intestate.

Shortly after Mother Jung's death, Bow, Wee, Yok, and May allegedly agreed that they would all serve as co-Personal Representatives and would sell Mother Jung's home to Yok below market price for $210,000. At some point, however, the attorneys entered into an attorney-client relationship with May. The attorneys prepared and in April 1995 filed a Petition for Probate that named May as an heir and sought to have her appointed the sole Personal Representative of the estate, see Petition for Probate, Estate of Lew Gin Gee Jung, despite the fact that the final draft of Mother Jung's will prepared by the same attorneys failed to name May as either a beneficiary or a Personal Representative, see Final Draft of Will at 2-5. The Probate Division of the Superior Court of the District of Columbia appointed May as the sole Personal Representative in May 1995, and the attorneys continued to represent the estate and May in her capacity as Personal Representative throughout the entirety of the probate proceedings.

Bow withdrew from the agreement among the children upon learning that May had filed the Petition for Probate, triggering several rounds of litigation over the sale of the house in the Probate Division beginning in June 1995. Throughout that litigation, the attorneys pursued "a campaign of pleadings to the Probate Division...charging plaintiff Bow Jung with fraud for repudiating the oral agreement." Compl. ¶ 43(a). In January 1997, the Probate Division ruled that the oral agreement was not enforceable and that the home could not be sold for less than the market value of $400,000; the District of Columbia Court of Appeals subsequently affirmed that decision. In re Jung, 791 A.2d 920 (D.C. 2000) (unpublished table decision). The attorneys then allegedly used estate funds to hire a non-party attorney to file a motion on behalf of the estate, accusing Bow of committing fraud upon the estate and seeking to recover compensatory damages, attorneys' fees, and costs incurred during the dispute over the house. Compl. ¶ 45. The Court of Appeals summarily rejected that motion in November 2001. Id.

In August 1995, May challenged her brother's heirship by filing a Complaint to Determine Heirship, requiring Bow to produce a birth certificate to prove that he was a natural born son of Mother Jung. Born in rural China in 1933, Bow could not produce a "Western style" birth certificate issued contemporaneously with his birth, but instead produced immigration papers and other records indicating that he was the son of Mother Jung. See id. ¶¶ 38, 39. Four years of litigation ensued; May in her capacity as Personal Representative would not accept Bow's proffered documentation as proof of his heirship and refused to distribute any portion of his intestate share of the estate. That dispute finally ended on December 16, 1999, when the Probate Division declared him an heir after DNA testing proved he was the natural son of Mother Jung. Id. ¶¶ 39, 41.*fn1

Bow became aware of the attorneys' relationship with Mother Jung in December 1997, when Robinson testified during a deposition about the work he had done for Mother Jung, including the preparation of the draft will that was to have been signed in the summer of 1994. Robinson Dep. at 223, 234. Bow's counsel requested that the attorneys produce a copy of that draft will, and they complied on January 13, 1998.

On July 16, 2002, Bow brought this legal malpractice suit against the attorneys, based on his asserted status as an intended beneficiary in Mother Jung's draft will. He claimed that the attorneys committed malpractice in negligently failing to assist Mother Jung in executing a will that carried out her testamentary intent and that their employee, Robinson, "wrongly delayed and impeded Mother Jung [from] signing the final draft of [her] Will." Compl. ¶ 20.

Bow also claimed that the attorneys committed legal malpractice by allowing a conflict of interest to arise from their legal representation of both Mother Jung and May. The conflict allegedly arose because the draft will that the attorneys had prepared for Mother Jung excluded May as a beneficiary and Personal Representative. Bow charged that by later representing May in her capacity as Personal Representative and probating the estate that included May's intestate share, the attorneys "negligently abandoned their original client's intent and interest, and negligently permitted their conflict of interest to run unchecked and continuous[ly] from April 27, 1995 to the present." Id. ΒΆ 59. He asserted that the attorneys' allegedly tainted representation of May damaged him by compelling him to incur legal fees ...

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