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«ARNOLD HARRISON v. EDWARD CHRISTMAN, JR., et al. Leahy, Reed, Raker, Irma, S. (Retired, Specially Assigned), JJ. Opinion by Leahy, J. Filed: ...»

-- [ Page 1 ] --

UNREPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 2253

September Term, 2014

______________________________________

ARNOLD HARRISON

v.

EDWARD CHRISTMAN, JR., et al.

______________________________________

Leahy, Reed, Raker, Irma, S.

(Retired, Specially Assigned), JJ.

______________________________________

Opinion by Leahy, J.

______________________________________

Filed: January 7, 2016 *This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

‒Unreported Opinion‒ Appellant Arnold Harrison was injured at work and submitted a workers’ compensation claim in 2003. He retained Edward Christman, Esq., to represent him in the matter before the Workers’ Compensation Commission (“WCC”).

Mr. Harrison was awarded temporary total disability benefits, and had five years from the date he received his last disability benefit payment in May 2004, to request a modification of his award under Maryland Code (1991, 2008 Repl. Vol.), Labor and Employment Article (“LE”), § 9-736(b)(3). Mr. Christman missed the filing deadline, and on, February 20, 2010, informed his client of his error. Mr. Christman continued to represent Mr. Harrison, notwithstanding, before the WCC until May 10, 2010, when the WCC found that the claim was barred by the statute of limitations.

More than three years after learning of his attorney’s unfortunate lapse, on May 7, 2013, Mr. Harrison filed malpractice claims against Mr. Christman and his law firm in the Circuit Court for Baltimore City. The court found that the applicable three-year statute of limitations began to run on February 20, 2010—the date that Mr. Christman informed Mr.

Harrison of the mistake—and rejected Mr. Harrison’s argument that continued representation tolled the limitations period until May 10, 2010. The court granted summary judgment for Mr. Christman. In his timely appeal, Mr. Harrison asks this Court to consider whether the Circuit Court for Baltimore City commit error by granting summary judgment in favor of appellants. 1 Mr. Harrison’s question, as originally presented, was as follows: “Did the Circuit Court commit error by granting Defendants’ Motion to Dismiss?” As discussed more fully below, the circuit court granted summary judgment in favor of Mr. Christman because the circuit court relied on facts outside the pleadings in its grant.

‒Unreported Opinion‒ We affirm. We hold that the statute of limitations began running when Mr.

Christman informed Mr. Harrison of the existence of his claim on February 20, 2010. We further conclude, under the facts of this case, that the continuation of events principle has no application in a situation in which the claimant has actual knowledge of his claim during the representation.

–  –  –

February 26, 2003, he slipped and fell on ice, injuring his back, neck, and wrist, while walking to his jobsite at the Brandon Shores Power Plant in Curtis Bay, Maryland.

Mr. Harrison submitted a workers’ compensation claim for this injury with the WCC on April 22, 2003. In December he retained Edward Christman as his attorney, who on December 5, 2003, filed issues with the WCC requesting authorization for medical treatment and temporary total disability benefits for Mr. Harrison from May 9, 2003 “to present and continuing.” On April 23, 2004, Mr. Harrison filed a petition for voluntary bankruptcy. He did not disclose his pending workers’ compensation claim in the petition.2 Following a hearing, the WCC issued an order on May 26, 2004, granting temporary total disability benefits to Mr. Harrison for the period May 9 through August 5, 2003, and Mr. Harrison did note a “[d]isability” benefit, but this does not appear to be the workers’ compensation claim.

It does not appear that Mr. Christman represented Mr. Harrison in regard to the bankruptcy petition because Mr. Christman’s name does not appear anywhere in the petition for bankruptcy in the record.

‒Unreported Opinion‒ denying benefits after that date. At some point during the remaining week of May 2004,3 Mr. Harrison received his “last compensation payment” for this award.

The date of Mr. Harrison’s “last compensation payment” is significant because it marked one of three different events, the latter of which commenced the five-year period of time during which he could request modification of the WCC award. More specifically, the time to modify the May 2004 award and request partial permanent disability benefits

expired in May 2009 pursuant to LE” § 9-736(b)(3), which reads:

–  –  –

Neither Mr. Christman nor Mr. Harrison took action to modify the award between May 2004 and May 2009. On December 3, 2009, Mr. Christman filed issues with the WCC, concerning the “[n]ature and extent of [Mr. Harrison’s] permanent disability.” In response to Mr. Christman’s December 3, 2009 filing, Mr. Harrison’s former employer filed issues maintaining that the claim was barred by limitations. Mr. Christman then investigated the matter and realized his error.





In a letter Mr. Harrison later wrote to the Attorney Grievance Commission on August 20, 2010, he recounted the details of a February 20, 2010 meeting he had with Mr.

Christman. During the meeting, which took place in his law office, Mr. Christman

–  –  –

informed Mr. Harrison that he missed the filing deadline,4 and explained that the case was no longer viable because he did not file for a modification in time. Mr. Christman expressed an interest in settling any potential claim that Mr. Harrison had against him, but the parties did not come to any agreement.

As Mr. Harrison further recounted in his letter to the Attorney Grievance

Commission, that upon learning of his attorney’s error, he sought legal representation:

In response to your letter dated July 26th 2010 from Mr. Ed Christman, stating that I came into his office on February 20th 2010 is the truth. On that date he told me that the case was thrown out due to the statu[t]e of limitation[s] because his office made an error in filing on time. He said that he would like me to be compensated for the error and how much would I be interest[ed] in, I said the same percentage of disability which the doctor said after [he] examine[d] me.

*** After leaving his office I opened the phone diary and called many attorneys, but no one would help, one was recommended highly and when I called his office he told me that no attorney will go against another attorney.

*** The case was thrown out and on that day his attorney gave to me all of my medical forms plus others. I then wrote letters to all of the representatives in Baltimore seeking for help and they all referred me to the attorney grievance commission. Mr. E D Christman was my attorney until May 10 when the case was thrown out he never told me to get another attorney two years ago....

On May 7, 2010, the WCC held a hearing on Mr. Harrison’s claim, and, on May 10, 2010, the WCC issued an order stating that the claim was barred due to the statute of At some point before July 26, 2010, Mr. Harrison filed a grievance concerning Mr.

Christman with the Attorney Grievance Commission, but the exact date on which this occurred is not reflected in the record.

‒Unreported Opinion‒ limitations. Neither Mr. Christman nor Mr. Harrison filed a timely appeal from that order.5 See LE § 9-737 (providing for 30 days to appeal from a WCC order).

On May 7, 2013, Mr. Harrison filed a malpractice complaint and request for a jury trial in the Circuit Court for Baltimore City against Mr. Christman and Christman & Fascetta, LLC.6 Christman filed a motion to dismiss, or, in the alternative, a motion for summary judgment, on August 29, 2014. In the motion, Christman argued that Mr.

Harrison was informed of his claim during the February 20, 2010, meeting, and that this was confirmed by Mr. Harrison’s August 20, 2010 correspondence with the Attorney Grievance Commission. Thus, according to Christman, the statute of limitations expired on February 20, 2013. Christman also argued that Mr. Harrison’s suit was barred by judicial estoppel because the workers’ compensation claim was bound to be fruitless since Mr. Harrison did not report the workers’ compensation claim in his bankruptcy proceeding.

Mr. Harrison filed an opposition on September 15, 2014, in which he argued that the statute of limitations accrued on June 10, 2010—the last date on which the May 10, 2010 WCC order could have been appealed—which, according to Mr. Harrison, represents “the date in which the error committed by [Christman] became static and Mr. Harrison’s Neither party seriously contends that it would have been fruitful to appeal the WCC’s order concerning the statute of limitations, i.e., the alleged malpractice is not the failure to appeal the 2010 WCC order. Mr. Harrison, in his brief, refers to the “Defendants[’] failure to file a timely appeal by June 10, 2010,” but he does not seem to argue that it was malpractice.

For the sake of convenience, we will refer to the Appellants, Mr. Christman and his firm, collectively, as “Christman.” ‒Unreported Opinion‒ rights could not be restored.” Mr. Harrison argued that a June 10, 2010 accrual date is the result of Christman’s failure to inform Mr. Harrison in writing of the potential claim, along with his continuing to represent Mr. Harrison until the WCC issued the order on May 10,

2010. Alternatively, Mr. Harrison argued that the fact question relating to the accrual of the claim was a question of fact for the jury. Finally, Mr. Harrison argued that judicial estoppel did not bar the malpractice claim, that Christman was barred from making arguments by estoppel and waiver, and that summary judgment should have been denied or deferred until discovery had occurred. Christman filed a reply on September 29, 2014.

The circuit court, the Honorable Stephen J. Sfekas presiding, held a hearing on the motions on October 6, 2014. The parties presented their arguments contained in the motions concerning the statute of limitations and the propriety of summary judgment. The court ruled in favor of Christman, stating that the statute of limitations accrued on February 20, 2010, the date that Mr. Harrison was informed of the error. The judge

explained his ruling:

So it does seem to me that the [] injury, the tort is complete at that point where the person has lost his ability to bring the claim.

*** So the question then becomes at what point [] did the claimant discover that this issue had occurred. I think the evidence is clear that there was a conversation on February 20, 2010, at which this issue was discussed.

The letter here, I think quite clearly indicates that [] Mr. Harrison was aware as of February 20th, that something had gone badly wrong and that he was likely to be non-suited, which in fact is the truth.

And so at that date he knew or should have known – I think in this case he did know – that attorney error had cost him his right to pursue his claim for additional Workers’ Comp benefits.

‒Unreported Opinion‒ The letter here was something that is unforced. It... was a voluntary submission. And it may very well be that he didn’t understand the implications of what he was saying or that he may have confused things. I can’t tell.

But what I can say is that the defendant’s position is that he was fully informed as of February 20th, and that the plaintiff here appears to be agreeing that on February 20th, he was given notice that [] there was a problem.

Additionally... it indicates here that he sought legal assistance in filing suit. And he was unable to get a lawyer and that he was advised then to take an action to the Attorney Grievance Commission, which apparently he did do.

But for all these reasons, I think that the... injury is complete... as of May, 2009 and that discovery did take place on February 20th, 2010. So the limitations period, in my opinion, dates from February 20th, 2010. That being the case, it seems to me that the case was brought outside of the limitations period, and I will be granting the summary judgment.

The court’s October 8, 2014, order granting summary judgment in favor of Christman was entered on October 16, 2014.

Mr. Harrison filed a motion for reconsideration on October 20, 2014, which the circuit court denied on December 4, 2014, and, on December 23, 2014, this timely appeal followed.

–  –  –

“Summary judgment is proper where the trial court determines that there are no genuine disputes as to any material fact and that the moving party is entitled to judgment as a matter of law.” Laing v. Volkswagen of Am., Inc., 180 Md. App. 136, 152 (2008) (citing Md. Rule 2-501). “The function of the trial court at the summary judgment stage is to determine whether there is a dispute as to a material fact sufficient to require an issue to be tried.” Frederick Rd. Ltd. P'ship v. Brown & Sturm, 360 Md. 76, 93 (2000) (citations

–  –  –

determine “whether a dispute of material fact exists,” id. (citing Gross v. Sussex, Inc., 332 Md. 247, 255 (1993); Beatty v. Trailmaster Products, 330 Md. 726, 737 (1993)), and to review a grant of summary judgment for legal correctness. Laing, 180 Md. App. at 152 (citing Wood v. Toyota Motor Corp., 134 Md. App. 512, 516 (2000)). “The parameter for appellate review is determining ‘whether a fair minded jury could find for the plaintiff in light of the pleadings and the evidence presented, and there must be more than a scintilla of evidence in order to proceed to trial....’” Id. at 153 (citing Wood, 134 Md. App. at 516). “[I]f the facts are susceptible to more than one inference, the court must view the inferences in the light most favorable to the non-moving party.” Id. (citing Wood, 134 Md.

App. at 516).



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