D.C. Court of Appeals affirmed the trial court’s dismissal of negligence and conversion claims by litigation financier’s against attorneys who released the settlement proceeds directly to the client, refusing a demand to honor client’s separate assignment of such proceeds.
In Roman v. Sage Title Group, LLC, the Court of Special Appeals of Maryland determined that a lender could bring a conversion claim against a settlement company for its employee’s misuse of funds held in the company’s escrow account. The Court held that a conversion claim will not be barred “simply because funds were located in a single escrow account, without looking at the purpose of the account, the duties of the account holder, and whether the funds were sufficiently specific, separate, and identifiable.” Op. at 16.
However, the Court affirmed judgment in favor of the settlement company on the lender’s negligence claim regarding the settlement company’s handling of such escrow funds, holding that expert testimony was necessary to establish the settlement company’s standard of care.
A copy of the opinion is available here.
Lender, who provided interest-only “bridge loans” to real estate developers, deposited $2,420,000 into an escrow account of Settlement Company, to enable Developer to show liquidity for three projects (under a putative false escrow scheme). Lender was led to believe that the money deposited into the escrow account would remain the property of Lender, and would not be at risk, because only Lender would have access to such funds. Settlement Company’s branch manager thereafter disbursed the funds to Developer. Branch Manager was later fired, pleaded guilty to wire fraud, and was disbarred. Settlement Company never returned Lender’s money.
Lender sued Settlement Company for conversion and negligence. Following a three-day jury trial, the trial court granted Settlement Company’s motion for judgment on the negligence claim, holding that expert testimony was required to establish the standard of care for a settlement company. After the jury rendered a $2,420,000 verdict for Lender, the trial court granted Settlement Company’s motion for judgment notwithstanding the verdict, holding that because Lender’s funds were commingled with other funds in Settlement Company’s escrow account, the conversion claim was barred as a matter of law. Lender filed the present appeal.
I. Conversion Claim: Money Held in Escrow Sufficiently Identifiable
As to the conversion claim, the Court reversed the judgment in favor of Settlement Company. The Court noted that the tort of conversion covers “nearly any wrongful exercise of dominion by one person over the personal property of another.” Op. at 6. As to money, “[t]he general rule is that monies are intangible and, therefore, not subject to a claim for conversion.” Op. at 6-7.
“An exception exists, however, when a plaintiff can allege that the defendant converted specific segregated or identifiable funds. . . . [C]onversion claims generally are recognized in connection with funds that have been or should have been segregated for a particular purpose or that have been wrongfully obtained or retained or diverted in an identifiable transaction.” Op. at 7 (quoting Allied Investment Corp. v. Jansen, 354 Md. 547, 564-65 (1999).
Thus, the Court noted that in cases where Maryland courts have precluded claims for conversion of funds, “the plaintiff either never identified a specific dollar amount that was allegedly converted, or the defendant had no obligation to return those funds in the first place.” Op. at 9. Noting that the case of an escrow account presented a case of first impression, the Court observed that other jurisdictions had allowed a conversion claim to proceed against an escrow under certain circumstances. See Op. at 10-12.
Finding those cases analogous, the Court determined that, although the Lender’s funds were placed with other funds in the Settlement Company’s escrow account, “the $2,420,000 deposited to that escrow account was sufficiently specific, segregated, and identifiable to support a claim for conversion.” Op. at 14. “[Lender] identified the specific funds at issue through the three checks and the corresponding notations on [Settlement Company]’s balance reports. In other words, [Lender] was able to ‘describe the funds with such reasonable certainty that the jury may know what money is meant.’” Id. (quoting Jasen, 354 Md. at 565). “The funds were segregated because, by agreement, the funds were to be placed in an escrow account, belong to [Lender], be accessible only by [Lender], and be returned to [Lender]. Finally, the funds were sufficiently identifiable, because all of [Lender’s] monies were not returned by [Branch Manager] to [Lender], nor were they disbursed with [Lender’s] permission.” Op. at 14.
The Court rejected Settlement Company’s argument that conversion could not occur because the funds were commingled with other funds in the escrow account, noting that such view of commingling is too broad. “Commingling of funds, in our view, does not occur when funds are placed in an escrow account to be disbursed only by agreement, even if those funds are physically located in the same account with other funds. In other words, if the funds, although physically mixed with other funds in an escrow account, are still under the control of the owner or restricted in use by agreement with the owner, commingling of such funds does not occur.” Op. at 15.
II. Vicarious Liability for Employee’s Misuse of Funds
The Court also held that sufficient evidence existed to present to the jury the issue of whether Settlement Company was vicariously liable for Branch Manager’s misconduct. The Court noted the general rule that “an employer cannot be held liable for the criminal acts of an employee, unless they were committed during the course of employment and to further a purpose or interest, however excessive or misguided, of the employer.” Op. at 19-20.
Here, because Branch Manager was authorized to receive and disburse funds from the Settlement Company escrow account in order to conduct Settlement Company’s business, including the receipt and disbursement of Lender’s funds, and Settlement Company earned closing fees on the projects in question, the Court concluded that a reasonable jury could find that Branch Manager’s misconduct – disbursing Lender’s funds pursuant to Developer’s instructions, instead of returning the funds to Lender per their agreement – was in furtherance of the employer’s business and authorized by the employer.” Op. at 21.
Moreover, the Court noted that such misconduct was foreseeable, because Branch Manager had previously violated Settlement Company’s policy in an incident where he accepted personal checks, and therefore, as articulated by the trial court, Settlement Company was “on notice that [Branch Manager] may be engaging in questionable conduct.” Op. at 21.
III. Negligence: Expert Testimony Required
The Court affirmed the judgment in favor of Settlement Company on the negligence claim, because Lender failed to adduce or designate expert testimony as to the standard of care for a settlement company. The Court noted that “[a]lthough ‘expert testimony is generally necessary to establish the requisite standard of care owed by the professional[,]’ such testimony is not needed when ‘the alleged negligence, if proven, would be so obviously shown that the trier of fact could recognize it without expert testimony.’” Op. at 27 (citing Schultz v. Bank of America, 413 Md. 15, 30-31 (2010)).
However, in this case, expert testimony was required to establish Settlement Company’s negligence, “because most lay people are not familiar with the operation of escrow accounts, nor with any standard of care a title company owes to individuals or entities who are not customers, but who deposit funds in escrow with the title company. . . . [Settlement Company’s] procedures and safeguards would ‘occur behind closed doors, out of the sight of the customer, and may involve numerous unknown procedures’ that are ‘beyond the ken of the average layperson.’” Op. at 29 (quoting Schultz, 413 Md. at 30).
Moreover, the Court noted that the “parties in this case also were sophisticated developers accustomed to working with title companies and multiple parties to move large sums of money in and out of escrow accounts; the standard of care for title companies in such circumstances is unknown to the average juror.” Op. at 29. Further, the Court rejected Lender’s claim that expert testimony was not required because Settlement Company had no policies, no procedures, no guidelines or no safeguards in place, observing that “the jury still did not know whether the standard of care required [Settlement Company] to have any policy at all. Expert testimony was required to show the need for such policies in the first place, as well as what those policies should provide.” Op. at 30.
Accordingly, the Court reversed judgment in favor of Settlement Company on the conversion claim, remanded the case for further proceedings, and affirmed judgment in favor of Settlement Company on the negligence claim.
In Thorsen v. Richmond Society for the Prevention of Cruelty to Animals, the Supreme Court of Virginia held that a named contingent remainder beneficiary to a will has standing to sue an attorney for legal malpractice as an intended third-party beneficiary of the attorney-client relationship created by the contract for legal services between the decedent and the attorney. Specifically, the Court concluded that a contingent remainder beneficiary is an intended beneficiary of the attorney-client relationship between the decedent and the attorney drafting the will. Therefore, the third-party could sue the attorney who drafted a will for legal malpractice arising from a scrivener error that resulted in a smaller bequest, if it was a “clearly and definitely intended beneficiary” of the decedent’s oral agreement with the attorney for legal services. According to the Court, for the third-party to have standing, “one of the primary purposes for the establishment of the attorney-client relationship [must be] to benefit the [third-party]. . . .” Op. at 12. Moreover, the Court held that the statute of limitations did not begin to run until the decedent died.
A copy of the opinion can be found here.
In 2003, Decedent hired Attorney to prepare her will. Decedent instructed that, upon her death, she wanted to convey all of her property to her mother or, if her mother predeceased her, to the Richmond Society for the Prevention of Cruelty to Animals (“Third-Party”) as contingent and residuary beneficiary of the will.
Decedent died five years after Attorney prepared the will, whereupon Attorney notified Third-Party that it was the sole beneficiary of Decedent’s estate. Due to a drafting error, the operative language of the will limited the bequest to Third-Party to only Decedent’s tangible property, rather than the entirety of the estate, which included real property.
Third-Party filed a lawsuit to correct the “scrivener’s error,” based on Decedent’s clear original intent. The trial court rejected the Third-Party’s claim, holding that the will was unambiguous, and determined that the bequest to Third-Party was limited to only tangible property.
Thereafter, Third-Party sued Attorney for legal malpractice, asserting that Attorney and his law firm were liable for breach of the legal services agreement, and claimed to be an intended third-party beneficiary of such agreement. In defense, Attorney filed a demurrer (motion to dismiss), asserting, among other things, that Third-Party was not an intended beneficiary of the legal services agreement, and further plead that a such claim was barred by a three-year statute of limitation applicable to oral agreements, which according to Attorney, began to run upon accrual of the breach of contract cause of action (i.e. when the breach occurred and when the erroneous will was drafted and executed).
The trial court rejected such defenses, and ultimately, judgment was granted in favor of Third-Party. Attorney thereafter noted this appeal.
The Supreme Court first determined that under the common law, a third-party could sue upon an oral contract, and that certain statutes authorizing unnamed persons to sue on an instrument, i.e., Va. Code § 55-22, did not alter the common law. Op. at 4-5.
The Court next considered whether Third-Party had standing as a third-party beneficiary in a legal malpractice action under the facts of this case. The Court noted that in Copenhaver v. Rogers, 238 Va. 361, 384 S.E.2d 593 (1989), it previously determined that “[i]n order to proceed on the third-party beneficiary contract theory, the party claiming the benefit must show that the parties to a contract clearly and definitely intended to confer a benefit upon him.” Op. at 7-8. The Court emphasized that the third party must be an intended beneficiary of the contract between the attorney and client, not merely an incidental beneficiary of the estate. Op. at 8-9. Accordingly, the Court stated that to have standing to sue, a nonparty to the contract for legal services must allege facts sufficient to support the conclusion that it was a “clearly and definitely intended beneficiary” of the contract for legal services. Op. at 12.
Under the facts of this case, the Court concluded, the Third-Party sufficiently alleged that it was a “clearly and definitely intended beneficiary” of the attorney-client contract between the Decedent and Attorney. Notably, the Court observed that the Decedent wanted to confer a benefit upon the Third-Party upon her death, and sought Attorney’s professional services to do so. Op. at 13. When Attorney “accepted the contract to prepare Decedent’s will as she specified, the [Third-Party] became not only the intended beneficiary of Decedent’s will but also the intended beneficiary of her contract of employment with [Attorney].” Op. at 13. Therefore, the Court concluded that the Third-Party had standing to allege a cause of action for breach of contract/professional negligence as a third-party beneficiary of the contract between the testator and her attorney. Op. at 14.
Attorney argued that Third-Party, as a contingent, residuary beneficiary, as a matter of law could not qualify as a “clearly and definitely intended” beneficiary of the will because its interest under the will was contingent, as a residuary beneficiary. Op. at 14. The Court rejected such proposition, explaining that whether a residuary beneficiary is a third-party beneficiary of the contract for legal services is a fact intensive inquiry. Op. at 14-17. The Court noted that depending on the facts of a particularly case, both contingent and residual beneficiaries may be considered third-party beneficiaries to an attorney-client contract between the testator and drafting attorney. Op. at 14-17.
Attorney also argued that Third-Party’s claim was barred by the three-year statute of limitations under Virginia Code § 8.01-246 for breach of an oral contract. Op. at 17. Notably, Attorney argued that the three-year limitations period had expired because it began to run at the time of breach (i.e. when the Attorney drafted the will in 2003). Op. at 18. The Court rejected this argument, determining that the three-year period “cannot begin to run as to the testamentary beneficiary until a cause of action accrues, after the death of the testator.” Op. at 19. Acknowledging that under Virginia Code § 8.01-230, a right of action for breach of contract accrues when the breach of contract occurs and not when the resulting damage is discovered, the Court held that for a cause of action to accrue for breach of contract, “some injury or damage, however, slight, is essential to a cause of action.” Op. at 18. In the case of a testamentary beneficiary, the Court concluded, no injury, however slight, can be sustained prior to the testator’s death. Op. at 20. “This is when the attorney’s negligence becomes irremediable and the impact of the injury occurs, . . ; before a testator’s death, the potential beneficiaries possess no recognized legal interest in the estate.” Id. (citations omitted).
Finally, the Court determined that the evidence as to the Decedent’s and Attorney’s intent sufficient to uphold the judgment in favor of Third-Party. The evidence demonstrated that Decedent specifically intended to benefit the Third-Party when she hired Attorney, and that by agreeing to draft a will for Decedent, Attorney impliedly agreed to comply with her specific directives. Op. at 23-24.
Accordingly, the Court affirmed the judgment in favor of Third-Party. Op. at 25.
One Justice dissented, concluding that Third-Party lacked standing to sue Attorney because “the common law has long provided that [a legal malpractice action] requires the existence of an attorney-client relationship as a threshold requirement.” Op. at 25-26. Criticizing the opinion, the Dissent warned that “[f]rom this date forward, attorneys will owe a legal duty to nonclients by virtue of legal services agreements with their clients whenever ‘a lawyer knows that a client intends as one of the primary objectives of the representation that the lawyer’s services benefit the nonclient.’” Op. at 32.
The Dissent noted that the determination of whether to abolish the common law strict privity requirement is a policy decision that should be made by the General Assembly, and not the Court. . Op. at 25. The Dissent cited several policy concerns in favor of the strict privity rule, particularly the “preservation of the sanctity of the attorney-client relationship,” protection against “the potential for conflicting duties owed to clients and third parties by the attorney,” and concerns over uncertain or unlimited attorney liability. Op. at 28-30.