These consolidated appeals arise from a central factual situation but raise wholly disparate legal issues. In the interests of clarity, we begin by noting that the underlying dispute began on October 27, 2010, when Herschel Blumberg,
During pre-trial discovery, appellees sent subpoenas duces tecum to non-parties James Catler, Mark Blumberg, and Susan Blumberg Levin in an effort to obtain relevant documents. The non-parties objected to certain requests for document production on the grounds of protective privilege. The circuit court found that no privilege applied to the documents in question and ordered their production. As permitted by statute, the nonparties noted timely appeals from the various orders of the circuit court.
The contested documents were then produced, and, based on the discovery, the Arent Fox appellees proceeded to file a number of motions seeking summary judgment in the case. In total, appellees filed
Questions Presented
The non-party appellants present eight questions for our review which we combine and rephrase for clarity as:
I. Did the circuit court err in ordering the production of documents over which the non-parties asserted a claim of privilege?
For the reasons that follow, we answer no and affirm the decisions of the circuit court.
The real party appellants present seven questions for our review with respect to the grants of summary judgment. We combine the questions and rephrase them as:
II. Did the circuit court err by awarding summary judgment on all issues in favor of appellees Arent Fox?
For the reasons that follow, we answer no and affirm the decisions of the circuit court.
Factual and Procedural History
Herschel Blumberg, as appellants
By the end of 2005, appellants were in the midst of constructing University Town Center. In appellees’ words, “it had always been the appellant entities!”] plan to start construction using their own funds and then, once substantial progress has been made, to obtain bank financing to continue and complete the project.” By refinancing the mortgages on the buildings comprising Prince George’s Metro Center, the Blumberg entities drained 40 million dollars of their own equity. The equity available through the refinancing was distributed through, and alternatively taken from, an entity called the Blumberg Family Limited Partnership. Monies were loaned among the companies, ultimately financing the early stages of development.
Although Arent Fox provided legal advice to the Blumberg entities throughout the time they negotiated with Wells Fargo, Mr. Leval, the Arent Fox partner chiefly responsible for appellants’ representation, only ran a conflicts check in July of 2006—months after negotiation of the loan’s terms was underway—uncovering the fact that Arent Fox represented Wells Fargo in unrelated transactions. Wells Fargo executed a written waiver of the conflict, but it is contested whether or not Mr. Tucker, on appellants’ behalf, executed a sufficient waiver.
Possibly predating, but definitely running concurrent to the financing and construction, was appellants’ concern for Mr. Blumberg’s mental state. As appellants contend, “in the early 2000[’]s, as planning for the [University Town Center] project proceeded, Mr. Blumberg began to show troubling signs of a cognitive decline.” The record is replete with examples like that provided by former Senior Vice President and Chief Operating Officer Christopher Hanessian—“I voiced concerns about [the risks of construction, Mr. Blumberg’s mental state, and undertaking the loans]
In their five count complaint filed on October 27, 2010, appellants alleged malpractice
At the close of pre-trial discovery, appellees filed nine motions for summary judgment and one motion to dismiss. Each motion pertained to a separate theory:
Discussion
The Interlocutory Discovery Disputes
The Catler Appeal
In advance of filing the lawsuit, on October 5, 2009, Marjorie Blumberg
Thereafter, Catler began reviewing 52 boxes of source documents containing information potentially relevant to future litigation. Catler and appellees dispute how to treat the fruit of his document review. Catler argues that Shulman Rogers engaged him as a litigation support consultant, thereby cloaking his work
Arent Fox served Catler with a subpoena and notice of deposition duces tecum, on
At a two day motions hearing, the circuit court denied the emergency motion and ordered Catler to produce “all remaining documents responsive to the Subpoena Duces Tecum, ... including all documents listed on [Catler’s] privilege log for the James Catler Production, except the last eleven (11) documents listed on the log, which eleven (11) documents shall be provided ... to the [c]ourt for in camera review.” After the court’s review, it ordered the production of all but 24 pages of the eleven documents. Catler appealed, also moving to stay enforcement of the order,
Invocation of Privilege
The attorney-client privilege “is a rule of evidence which prohibits the disclosure of the substance of a communication made in confidence by a client to his attorney for the purpose of obtaining legal advice.” Levitsky v. Prince George’s County,
“Once the attorney-client privilege is invoked, the trial court decides as a matter of law whether the requisite privileged] relationship exists, and if it does, whether or not any such communication is privileged.” E.I. du Pont de Nemours & Co.,
We conclude that Catler was not a client of Shulman Rogers for the purpose of the litigation against Arent Fox. Accordingly, no attorney-client privilege attached to the documents that were withheld. We explain. First, the letter retaining Shulman Rogers on behalf of Catler and Ms. Blumberg insufficiently identifies the purpose for the representation to be a potential lawsuit against Arent Fox. Second, Catler was unable to provide testimony about when, or if, Shulman Rogers was representing him and in what capacity.
The subject line of the October 5, 2009 engagement letter signed by Catler and Ms. Blumberg reads “Investigation of Liability and Recovery in Wells Fargo Bank and Key Bank Loans.” We consider the terms of the engagement letter objectively. Towson Univ. v. Conte,
In addition to the ambiguous terms of the letter of engagement, Catler “could not speak” to whether he personally retained Shulman Rogers for the purpose of filing suit against Arent Fox. He was asked at deposition, “at any point did you retain Shulman Rogers to file an action against Arent Fox [?]” He responded “I don’t know. I really don’t. I can’t speak to that.” We decline to find the existence of an attorney-client relationship where the purported client was unable to testify to the relationship’s existence. See Greenberg v. State,
The Mark Blumberg and Susan Blumberg Levin Appeal
Mark Blumberg and Susan Blumberg Levin appeal from an order of the circuit court directing them to produce all documents recorded on their privilege logs. Among other pleadings with respect to the document requests in question, the Blumbergs filed a motion for protective order and Arent Fox responded by filing a motion to compel production. The circuit court held a hearing on the motions, ultimately denying the motion for protective order and setting the time frame under which all the questioned documents were to be produced. The court found that “not only were the privilege logs untimely and legally insufficient, but also that [Arent Fox] had been prejudiced.... ”
As noted supra, “whether a document is subject to withholding from discovery as a result of some privilege is essentially a question of fact to be determined by the trial court[ ]” and that finding is entitled to deference on appeal. Gallagher Evelius & Janes, LLP,
First, Shulman Rogers never represented either Mark Blumberg or Susan Blumberg Levin. The retainer agreement was signed only by Marjorie Blumberg and James Catler. In the circuit court’s words, those messages “between [the Blumbergs] on the one hand and Shulman Rogers on the other hand simply were not privileged.” We agree. Second, the circuit court “made the same decision about Ms. Malone and Dickstein Shapiro.”
The Summary Judgments
The facts and procedure relevant to our discussion of summary judgment have been laid out above; when additional facts become necessary to our discussion, they will be added.
Standard of Review
The circuit court granted summary judgments to appellees. Under Maryland Rule 2-501(f), “[t]he court shall enter judgment in favor of or against the moving party if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law.” “The standard of review of a trial court’s grant of a motion for summary judgment on the law is de novo, that is, whether the trial court’s legal conclusions were legally correct.” Messing v. Bank of Am., N.A.,
[o]ur review of the grant of summary judgment requires us to determine whether a dispute of material fact exists, and whether the trial court was legally correct. Facts necessary to the determination of a motion may be placed before the court by pleadings, affidavit, deposition, answers to interrogatories, admissions of facts, stipulations, and concessions. We will review the same information from the record and decide the same issues of law as the trial court. In resolving whether a material fact remains in dispute, the court must accord great deference to the party opposing summary judgment. Even where the underlying facts are undisputed, if those facts are susceptible of more than one permissible inference, the trial court is obliged to make the inference in favor of the party opposing summary judgment. The court should never attempt to resolve issues of fact or of credibility of witnesses—these matters must be left for the jury.23
Before reaching the merits, infra, it is necessary for us to expound briefly upon the permissible grounds for affirmation. Appellants contend that “Maryland appellate courts will not review a grant of summary judgment on grounds not specifically
The Circuit Court’s Findings
Although the circuit court granted the motions “largely for the reasons set forth by Arent Fox[,]” the court supplemented this statement with a larger discussion punctuated by distinctive legal conclusions. In making an oral ruling on the motions for summary judgment, the circuit court remarked:
“[i]t is true ... that Maryland is very forgiving in allowing even slight evidence ... to go to the jury. [ ][B]ut it is not true that all evidence is legally sufficient evidence.... I’m going to grant the motions largely for the reasons set forth by the defendants, as amplified by my comments ... but simply by way of additional reasons, these are not my sole reasons, but my additional reasons ... it is my view that the evidence ... would require the jury to speculate, engage in surmise and conjecture [ ] I am not persuaded that based on the record, even viewed in the light most favorable to the plaintiffs, that a jury rationally, lawfully, in a non-speculative way, could find cause in fact.... I am not persuaded that a rational jury would find, or could legally find, that it is more likely than not that the plaintiffs could have obtained a more favorable result, either by walking away from the Wells Fargo loan, by walking away from the Key Bank loan, or by walking away from the UTC project at any time.... Absent cause in fact, the case is over. And if I saw it, I would let it go to the jury. If I believed a rational jury, in a legally permissible, non-speculative way, might or could do it, I would let them do it____ I’m not weighing credibility. I am not making factual findings. I’m deciding as I turn that globe around, over and over, is there any possibility, reasonably and consistent with the law, that the plaintiffs can prevail on cause in fact, based on the current state of the record. And I have to tell you the evidence is no.”
(emphases added). Notwithstanding the depth of the circuit court’s oral ruling, even if it had agreed with appellees generally, without specifying which aspects of their position were persuasive, our review could still reach all of appellees’ asserted grounds justifying summary judgment. Kimmel v. SAFE-CO Ins. Co.,
Our discussion necessarily begins with those motions that appellants fail to address.
Limitations .
Appellees argue that the statute of limitations bars a wide swath of appellants’ claims.
“[I]n Maryland in cases of professional malpractice the [Court of Appeals has] established the discovery rule—the rule that the cause of action accrues when the claimant discovers or reasonably should have discovered that he has been wronged.”
[w]hen a cause of action accrues is usually a legal question for the court. When the question hinges on the resolution of disputed facts, however, it is for the fact-finder to decide. Depending on the nature of the assertions being made with respect to the limitations plea, the determination [of whether the action is barred] may be solely one of law, solely one of fact, or one of law and fact.
Id. at 296,
Appellees argue that three of appellants’ claims accrued before the limitations cutoff of October 29, 2006. First, appellees contend that appellants’ assertions of conflicted advice, especially regarding the loan financing, are untimely. Second, appellees argue that claims based on business advice are barred. Third, appellees claim that if they had a duty to have a guardian appointed for Mr. Blumberg, a failure to satisfy that duty was no longer actionable by the limitations cut-off date.
Appellants have failed to address when any of the aforementioned causes of action accrued. At the summary judgment hearing, counsel for both parties argued this issue. Because a cause of action does not accrue until all of its elements are present, including damages, Doe v. Archdiocese of Washington,
The same conclusion must follow for both the business advice claims, discussed further infra, and the guardianship claims. Whatever business advice appellees dispensed in connection -with or facilitating the loans necessarily took place before the limitations cut-off. Similarly, because of the transparency of Mr. Blumberg’s mental decline, the need to appoint a guardian, if it arose at all, must have occurred before October 29, 2006.
Appellees argue, alternatively, that there “is no separate count or cause of
We note that the decision to “enter into a complex set of financial transactions” is a business decision that only secondarily relies on legal advice. How to finance the companies, and any construction that they initiate, is a business decision. Legal advice may be sought or received about how to implement the decision (e.g., how to incorporate investment vehicles, or what the tax consequences of the deals may be) but the decision to loan money from external sources or to transfer funds internally remains a business decision committed to the discretion of the companies themselves. We agree with the Supreme Court of California that “Courts are properly cautious about making attorneys guarantors of their clients’ faulty business judgment.” Viner v. Sweet,
Appellees recycle the limitations defense and apply it directly to appellants’ claims that appellees failed to satisfy their duty of loyalty by giving conflicted advice.
“The issue of when plaintiff knew or should have known of his injury and its cause is a question of fact for the jury.” CSX Tramp., Inc. v. Miller,
We conclude, as well, that appellants have waived one other purported claim. As noted supra, appellants take the position that appellees breached their retainer agreement, and therefore their contract, by, inter alia, “providing incompetent legal advice that [appellants] should enter into a complex set of financial transactions that were doomed to fail from the outset.”
Fiduciary Duties
To begin our discussion of fiduciary duty, we note that if count one of the complaint (legal malpractice) and count two (breach of fiduciary duty) were transposed into a Venn diagram,
there is no universal or omnibus tort for the redress of breach of fiduciary duty by any and all fiduciaries. This does not mean that there is no claim or cause of action available for breach of fiduciary duty. Our holding means that identifying a breach of fiduciary duty will be the beginning of the analysis, and not its conclusion. Counsel are required to identify the particular fiduciary relationship involved, identify how it was breached, consider the remedies available, and select those remedies appropriate to the client’s problem. Whether the cause or causes of action selected carry the right to a jury trial will have to be determined by an historical analysis. Counsel do not have available for use in any and all cases a unisex action, triable to a jury.
Although appellants may not succeed on an individual count for the breach of fiduciary duty, the remedy for such a breach may be connected to another cause of action.
Appellants contend that appellees knew of Mr. Blumberg’s deteriorating mental state “as early as 1999, if not earlier.”
In reviewing these allegations, we are mindful that: “a former client may have an action against a lawyer if the client can prove (1) the attorney’s employment, (2) the attorney’s neglect of a reasonable duty, and (3) loss to the client proximately caused by that neglect of duty.” Thomas v. Bethea,
Appellees cite the predicates for action under Rule 1.14 to argue that, before a duty may attach, appellants must demonstrate that appellees knew or believed that (i) Mr. Blumberg was mentally incompetent, (ii) that the companies were at risk of substantial harm if protective action was not taken, and (iii) that the companies could not adequately protect their own interest. Assuming, without deciding, that the prerequisites to Rule 1.14 were present here, it states only that a lawyer “may take reasonably necessary protective action.” The rule does not, on its face, require any action on appellees’ part. Because of the permissive nature of the rule’s applicability, in order to establish a duty
As we said in the case of CIGNA Prop. & Cas. Cos. v. Zeitler, “[ojften, allegations of professional malpractice require expert testimony, because the intricacies of professional disciplines generally are beyond the ken of the average layman.”
[i]n an action against a professional man for malpractice, the plaintiff bears the burden of overcoming the presumption that due skill and care were used. Although there may be instances in which the negligence is so gross or that which was done so obviously improper or unskillful as to obviate the need for probative testimony as to the applicable standard of care, (and here we proceed on the assumption that this is not such a case), generally there must be produced expert testimony from which the trier of fact can determine the standard of skill and care ordinarily exercised by a professional man of the kind involved in the geographical area involved and that the defendant failed to gratify these standards.
Crockett v. Crothers,
We note initially that the court’s ruling, in disagreeing with certain experts,
Appellants argue that:
[t]he trial court misconstrued its role in connection with defining the standard of care by putting itself in the position of expert witness and purporting to determine for itself what degree of prudence and action the standard of care required of Arent Fox. The trial court held that ‘the jury does not determine the standard of care. I determine, or the judge determines the standard of care.’ The trial court then proceeded to offer its own opinion that the standard of care did not require action by Arent Fox, noting that it ‘respectfully disagree[d]’ with Professor Hazard.
In appellants’ words, “the trial court misconstrued its role in connection with defining the standard of care by putting itself in the position of expert witness.” We agree. Although the existence of a legal duty is a question of law for the court,
The court additionally erred by finding that appellants’ experts failed to state clearly enough the precise scope of the duty owed. Here, the court stated that:
[i]t is clear in Maryland that if you need expert testimony to prove an element of a claim, and you do not have a legally sufficient expert opinion under 5-702, it is well settled as to that claim or as to that element, the trial court may properly grant summary judgment and dismiss the case. I want to highlight at least two defects in the expert opinions, as I see it. While both Ms. Schwartz and Ms. Fine are qualified ... my view is that their opinions are ‘because I said so’ opinions.... With respect to the expert opinions about the standard of care and the legal obligations of the law firm vis-a-vis a mentally challenged or a mentally disabled client, ... I was combining their opinions to understand what the standard of care was. And it’s amorphous at best: do the right thing. Okay. It’s too amorphous. It’s too nebulous the way they’ve defined it. I am not saying there is no duty. I am not saying that some expert, in some case, at some time, can’t do it. I’m saying they haven’t done it. And since they haven’t done it, for that additional reason, because the plaintiffs need that expert testimony and they don’t have it, they cannot succeed on the claims which, on which such expert testimony is relying.
We address first the factual sufficiency of the expert testimony because it appears that the court’s application of Maryland Rule 5-702 played a role in its ultimate decision, viz., that the appellants’ experts’ testimony failed to identify the scope of duties allegedly owed.
Professor Hazard, one of appellants’ standard of care experts, based his opinions on the “facts and evidence made available ... during the discovery process.” He opined that “consistent with Rule 1.14, Mr. Leval should have taken reasonably necessary action to protect Mr. Blumberg’s financial well-being, at a minimum preventing him from signing the legal instruments.” Ms. Schwartz, another of appellants’ experts, also based her opinions on the facts and evidence presented during discovery. She opined that “a reasonably prudent real estate lawyer under the circumstances presented to Gerard Leval would not have proceeded with the contemplated transactions, including the preparation and execution of loan documents with respect to those transactions that required the informed decision of Mr. Blumberg.” The substantive thoroughness of their reports supports our view that appellants’ experts’ opinions were sufficiently supported by the record. This case does not raise questions about the mathematical or scientific methods through which appellants’ experts reached their conclusions—it is not a case where the “supply of data” or “methodology” is at issue. CSX Transp., Inc. v. Miller,
Moving on from the factual basis for the expert testimony to its legal validity, we conclude that appellants sufficiently identified the duties that they were allegedly owed. It is appellants’ experts’ opinion that appellees had, at least, a duty to stop the loans from proceeding. Appellants’ position is that because appellees knew or should have known that their client lacked the necessary capacity, they should either have prevented Mr. Blumberg from closing on the loans, or withdrawn from the representation. Although this is a fuzzy area, we think there was enough substance to the opinions to survive a motion for summary judgment. We are not convinced as a matter of law, as the circuit
Although the court erred by finding appellants’ expert opinions insufficient, we conclude that such error does not require reversal. “[I]t has long been the settled policy of this court not to reverse for harmless error.” Brown v. Daniel Realty Co.,
Contributory Negligence
The general theme of appellants’ contributory negligence pervades appellees’ various theories, although appellees commit a specific motion to arguing directly that recovery for negligence, if any, is barred by appellants’ contributory negligence and the doctrine of in pañ delecto
In our view, there are two flaws in appellants’ reasoning. First, as we have discussed above, appellants’ decision on how to raise capital was the product of their own business judgment and not insularly caused by appellees’ legal advice. Second, this is not a case in which the court impermissibly extended itself into the boardroom in order to impute the junior officer’s knowledge, (in this case, that of Messers. Hanessian and Tucker) to the corporation itself. As appellants state, “[i]n short, [appellants’] losses were foreseen by everyone around Mr. Blumberg.” Even if the losses (and Mr. Blumberg’s cognitive decline) were less than readily apparent, section 2-414(a) of the Corporations article resolves any imputation question in favor of appellees.
The court colorfully relayed its understanding of appellants’ position, saying “[b]ut the way you’re painting it, I think, the corporate officers were basically being told the sky is purple and they just said, okay, well, he [Mr. Blumberg] said the sky is purple and everybody knows the sky is not really purple, but he said it’s purple, so let’s pretend it’s purple. It’s just like the emperor has no clothes fable.” Based on this assessment, the trial court held that “[t]he evidence ... makes out a case against the corporate officers for contributory negligence as a matter of law.” The court continued, stating that “[t]he bylaws of the corporation make it clear, not only did they have the power to engage in the conduct that is questioned here, they had the duty to run the company in the event Mr. Blumberg became disabled.”
Appellants attempt, in vain, to escape this finding. However, the circuit court correctly determined that although the Blumberg entities may have considered Mr. Blumberg to be both necessary and singularly sufficient for making business decisions, the bylaws governing University Town Center confer decision making power on other corporate officers in the event that the president suffers incapacity. Specifically, the bylaws state that “[i]n the absence or disability of the President, the Vice President ... shall perform the duties and exercise the powers of the President.” The bylaws continue, stating that “[n]o loans shall be contracted on behalf of the Corporation and no evidence of indebtedness shall be issued in its name without the endorsement of the Chairman of the Board, if any, the President, or a Vice President, if any.” By their own governance documents, appellants demonstrate that decision making authority vested, at the time of Mr. Blumberg’s incompetence—if ever—in the companies’ Vice Presidents, Messers. Hanessian and Tucker.
“The question of contributory negligence must be considered in the light of all the inferences favorable to the plaintiff’s case that may be fairly deduced from the evidence.” Patapsco & B. R. R. Co. v. Bowers,
The court added to its findings that the doctrine of “in pari delicto applie[s] [saying] ... I could not in good conscience let the claims as to which the doctrine applied go to a jury.” In the case of Schneider v. Schneider,
Fraudulent Concealment
Appellees next focus on appellants’ contention that they fraudulently concealed the “imminent financial collapse”
In their complaint, appellants contend that appellees’ actions amount to fraudulent concealment. In the case of Lloyd v. CMC, the Court of Appeals said that “[t]he essential elements for a claim of fraudulent concealment include: (1) the defendant owed a duty to the plaintiff to disclose a material fact; (2) the defendant failed to disclose that fact; (3) the defendant intended to defraud or deceive the plaintiff; (4) the plaintiff took action in justifiable reliance on the concealment;
Appellants, however, invert the parties’ burden with respect to knowledge of the Blumberg entities’ internal affairs. Appellants characterize themselves as passive players in a nefarious game presided over by their entrusted counsel. Appellants argue that appellees monopolized the internal workings of the Blumberg entities, wielding mutually exclusive possession over 100% of both the business decision making power and the knowledge supporting it. This argument, however, fails for the reason that to conclude otherwise would immunize businesses from taking responsibility for their own business judgments, the business judgment rule notwithstanding.
The undisputed record reflects that on December 18, 2007, Cushman & Wakefield (whom appellants retained to solicit offers for Student Towers) received a letter of intent, purportedly valuing Student Towers at 80 million dollars. That same day, Cushman & Wakefield transmitted the letter of intent directly to the Blumberg entities. The letter of intent expired at 5:00 pm on December 24, 2007. Mr. Blumberg and Mr. Tucker decided to reject the letter because they felt the price was insufficient. On December 28, 2007, four days after the letter’s expiration, appellants sent a copy of it to appellees for legal review. Six days after that, Mr. Tucker instructed appellees to cease work with respect to the letter. As a logical matter, appellees could not conceal, intentionally or otherwise, a letter of intent that they became aware of only after appellants made the business judgment to reject it.
In a related claim, appellants assertion that appellees fraudulently concealed the “imminent financial demise” of the companies must also fail. This position, too, assumes that the entities’ outside counsel knew more about the internal finances of the entities than they themselves did. The record reflects that knowledge of the financial problems faced by the companies and possessed by appellees was possessed by appellants also. Therefore, we conclude that appellees were not capable of concealing the “imminent financial demise” of the companies.
Causation
Although causation
In order for appellants to succeed on their malpractice claims, they must demonstrate a “loss [] proximately caused by [ ] neglect of [a] duty [owed].” Thomas,
In the case of Pittway Corp. v. Collins, the Court of Appeals discussed the law relevant to causation by stating that:
[i]t is a basic principle that [njegligence is not actionable unless it is a proximate cause of the harm alleged. Proximate cause involves a conclusion that someone will be held legally responsible for the consequences of an act or omission. To be a proximate cause for an injury, the negligence must be 1) a cause in fact, and 2) a legally cognizable cause. In other words, before liability may be imposed upon an actor, we require a certain relationship between the defendant’s conduct and the plaintiffs injuries. The first step in the analysis to define that relationship is an examination of causation-in-fact to determine who or what caused an action. The second step is a legal analysis to determine who should pay for the harmful consequences of such an action.
Causation-in-fact concerns the threshold inquiry of whether defendant’s conduct actually produced an injury. Two tests have developed to determine if causation-in-fact exists, the but for test and the substantial factor test. The ‘but for’ test applies in cases where only one negligent act is at issue; cause-in-fact is found when the injury would not have occurred absent or ‘but for’ the defendant’s negligent act. When two or more independent negligent acts bring about an injury, however, the substantial factor test controls. Causation-in-fact may be found if it is ‘more likely than not’ that the defendant’s conduct was a substantial factor in producing the plaintiffs injuries.
As noted above, in its oral ruling, the circuit court concluded that “I am not persuaded that based on the record, even viewed in the light most favorable to the plaintiffs, that a jury rationally, lawfully, in a non-speculative way, could find cause in fact____I am not persuaded that a rational jury would find, or could legally find, that it is more likely than not that the plaintiffs could have obtained a more favorable result, either by walking away from the Wells Fargo loan, by walking away from the Key Bank loan, or by walking away from the UTC project at any time.... ”
Ordinarily, the factual determination of proximate cause is reserved for the jury. Sacks v. Pleasant,
The University Town Center development, undisputably, did not produce the results that appellants envisioned. The record here supports a finding that it was, however, motivated by the Blumberg entities’ longstanding goal of expanding the Prince George’s Metro Center. The appellees could not have foreseen that this expansion project would coincide with our nation’s largest recession since the Great Depression. That significant, intervening event is absent from appellants’ version of the facts. Also missing is any explanation as to how their losses would have been stemmed or eliminated had the loan transactions not occurred or somehow been truncated. Unfortunately, instead of an expansion to their empire here, Rome fell. Proof of proximate causation is wanting, as the circuit court observed. We are not inclined to disturb its ruling on that issue.
JUDGMENTS OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANTS.
KRAUSER, PETER B., C.J., WOODWARD, PATRICK L., and ZARNOCH, ROBERT A., JJ., did not participate in the Court’s decision to report this opinion pursuant to Md. Rule 8-605.1.
Notes
. Mr. Blumberg is a named plaintiff. He filed the complaint through his guardian, Marjorie Blumberg.
. Md.Code Ann., Cts. & Jud. Proc § 12-301. "This statute does not restrict the right of appeal to the technical parlies to a suit. A person may have such a direct interest in the subject matter of a suit as to entitle him to maintain an appeal, although he is not one of the actual parties.” Lickle v. Boone,
. Appellant Catler presents three questions. They are:
(I) Did the [c]ircuit [c]ourt err, as a matter of law, in ruling that [appellant James Catler did not continue to have an attorney-client relationship with counsel that he retained, expressly and in writing, for legal advice and services in matters that resulted in the action below?
(II) Where there is no factual dispute that Mr. Catler undertook to prepare regularly and for over a year fact summaries and analyses under the direction and guidance of counsel in anticipation of and for litigation of the action below, did the [c]ircuit [cpurt err, as a matter of law, in ruling that the work-product doctrine did not shield any such documents prepared before his undertaking was reduced to a formal written and compensatory agreement with counsel?
(III) Where Mr. Catler retained and remained a client of counsel for both him and Ms. Blumberg in connection with the action below and/or where Mr. Catler regularly served as a litigation support consultant to counsel in connection with the action below, did the [c]ircuit [cpurt err, as a matter of law, in ruling that the confidentiality of certain written communications from in-house counsel for the Blumberg Entities to Ms. Blumberg, once disclosed to Mr. Catler, had been breached and the privilege protections for those communications thereby waived?
Appellants Mark Blumberg and Susan Blumberg Levin present five questions. They are:
(I) Did the lower court err in finding that the Blumberg [appellants’ privilege logs were untimely and legally insufficient in description and that the [dpfendants had been prejudiced as a result thereof despite the fact that the Blumberg [appellants timely filed an objection pursuant to Maryland Rule 2-510(f); that the undisputed record supported by affidavit pursuant to Rule 2-311(d) is that the parties had an agreement to provide the documents "within a week or two” before a yet to be determined deposition date; that [appellees never responded to Blumberg [appellants’ proposed deposition date for over two (2) months; and that Maryland Rule 2-412(c) and 2-510(a) each state that a non-party deponent respond by producing documents "at the taking of the deposition" and "at a deposition", respectively and, the Maryland Discovery Guidelines, Guideline 6 "Assertions of Privilege at Depositions” contemplates asserting the privilege "during deposition” and provides that "an objection on the ground of privilege ... may be amplified by the objector subsequent to the deposition”?
(II) Did the lower court err in finding that the Blumberg [appellants failed to "advance any facts or arguments” related to the non-highlighted portions of the privilege log (including communications with their former attorney Brian Frosh) and as such the Blumberg [ajppellants’ argument as to these communications is "waived”?
(III) Did the lower court err in making an overreaching ruling that each and every one of the Blumberg [ajppellants’ "... communications with non-attorneys were not privileged” despite the fact that an October 3, 2010 email communication was between two Pels Anderson clients (Mark and Susan) related to questions posed to Pels Anderson inquiring about the strength, weaknesses and strategy related to the Arent Fox litigation is within the gambit of a privileged communication?
(IV) Did the lower court err in finding that no privilege existed in communications between counsel for Herschel Blumberg (a board member), Marjorie Blumberg (a board member) and in house counsel because the privilege extends to counsel for board members and/or a common interest existed as the parties anticipated being engaged in litigation against a common adversary, regarding the same or similar issues and expressed intent to cooperate, the parties had the same legal counsel and it is in the interests of justice and fairness to preventing [sic] disclosure of the information?
(V) Did the lower court err in finding that this matter is not immediately appealable?
. Appellants present seven questions for our review regarding summary judgment. They are:
(I) Did the trial court err in concluding that Arent Fox owed no duties to Blumberg, either as attorneys or confidential advisors, to take protective action over Mr. Blumberg, his companies, and his family and to refrain from actively overseeing and ultimately facilitating his consummation of financial transactions, which Arent Fox knew he could not understand?
(II) Did the trial court err in holding that there was no cause-in-fact as a matter of law where (a) the Blumberg entities would have been better off had Mr. Blumberg not proceeded with the $83 million Wells Fargo loan and the $57 million Key Bank loan, and had the Student Towers building been sold for $80 million; (b) the undisputed evidence shows that the Wells Fargo loan would never have occurred without both the signatures of Mr. Blumberg and each of his children; (c) a reasonable jury could find that undertaking the Wells Fargo and Key Bank loans, and rejecting the Student Towers offers, were highly imprudent actions and that no rational decision-maker acting in Mr. Blumberg's place would have proceeded with them; and (d) a reasonable jury could find that had a competent, authorized decision-maker acting in Mr. Blumberg's place accepted the Student Towers offer, the transaction most likely would have been consummated?
(III) Did the trial court err in concluding that the officers of the Blumberg entities were guilty of contributory negligence as a matter of law where (a) contributory negligence is not a recognized defense to many of the Blumberg’s claims; (b) disputes of material fact exist as to the reasonableness of the officers' actions in relying on the advice of Arent Fox to allow Herschel Blumberg to proceed with the challenged transactions; and (c) disputes of material fact exist as to the authority of the officers, when they learned about Mr. Blumberg’s mental incapacity, and what precisely they knew?
(IV) Did the trial court err in concluding that the doctrine of in pari delicto applied as a matter of law where (a) the trial court articulated no grounds for this conclusion; (b) any alleged misconduct by the Blumberg children has no relevance whatsoever to the vast majority of the Blumberg claims, which are asserted by the Blumberg entities with which the children had no role at the time in question; (c) no evidence was adduced of any misconduct by the Blumberg children and, at a minimum, there was ample evidence to create disputes of material fact as to their actions?
(V) Did the trial court err in concluding that Blumberg's concealment claims were insufficient as a matter of law because certain officers of the Blumberg entities possessed the same knowledge as Arent Fox where (a) Arent Fox knew that only Mr. Blumberg was authorized to act on the information about the companies’ imminent collapse and the offer to acquire the Student Towers building for $80 million; (b) Arent Fox knew that Mr. Blumberg was mentally incompetent to decide whether and on what terms to accept the Student Towers offer; (c) Arent Fox knew that the officers did not believe they possessed authority to make the decision; (d) Arent Fox knew that the officers could not communicate with anyone else at the companies competent to make the decision; (e) Arent Fox knew that the officers were relying on Arent Fox’s advice that Mr. Blumberg could make the decision; and (f) Arent Fox knew that, in fact, Mr. Blumberg was the only one making the decision?
(IV) Did the trial court err in granting summaiy judgment generally for "the reasons set forth by Defendants,” when the trial court did not explain which reasons it was accepting or why it was accepting those reasons that were expressed in a more than 2,500-page summary judgment submission, and where those reasons were all insufficient to justify summary judgment?
(VII) Did the trial court err in striking Blumberg’s Second Amended Complaint without a hearing where the Second Amended Complaint merely sought to add detail to claims already articulated in the First Amended Complaint, and to the extent it was deemed more substantive, Blumberg was entitled to interpose the amendment?
. The term "appellants” here, and throughout where not designated otherwise, refers to the real parties appealing from summary judgment and not the non-party appellants from the interlocutory discovery appeal.
. The fourth building was completed in 2002 and was not part of the University Town Center expansion.
. The refinancing was only part of the inter-company loan scheme. For example, on July 9, 2004, Mr. Blumberg executed loans between the Blumberg entities in the following way: UTC Retail I, LLC executed a promissory note payable to Prince George Metro Center III, Inc.; UTC Retail I, LLC executed a promissory note to Prince George Center I, Inc.; UTC Retail II, LLC executed a promissory note to Prince George Center I, Inc.; UTC Retail III, LLC executed a promissory note payable to Prince George Center I, Inc.; UTC Retail IV, LLC executed a promissory note payable to Prince George Center I, Inc.; UTC Housing, LLC executed a promissory note payable to Prince George Metro Center III, Inc.; and UTC Housing I, LLC, executed a promissory note payable to Prince George Center I, Inc. That the scheme was complicated and confused even those who created it is not contested here.
. In 2005, Key Bank made a short-term construction loan of 55 million dollars to appellants. The 57 million dollar permanent loan from Key Bank was arranged in 2007. As Mr. Tucker explained, "[t]he construction loan provides the funds that are necessary for constructing a project. And a permanent loan is after the project is built.... After the project is built, the tenants are in place and it's producing income, you then obtain a permanent loan.” Mr. Tucker stated that by 2007, "the term on the construction loan was running out. The building was up, it was stabilized, and it was time to convert it from a construction loan to a permanent loan.” The 2005 loan and the 2007 loan are not separate commitments of 55 and 57 million dollars each. The 2007 loan is a refinancing and restructuring of the 2005 loan.
. Appellee Leval testified that he obtained an oral waiver from Mr. Tucker. Mr. Tucker’s testimony was that he could not recall if a waiver was granted in either oral or written form.
. Mr. Hanessian’s deposition testimony shows that he “had a thousand conversations” with Mr. Leval and that Mr. Hanessian "told [Leval] [] about episodes, [] about problems that he [Mr. Blumberg] was causing [,] potential bad things that could happen. And again, over time this all became more and more acute and often.”
. There is no evidence in the record that appellees were either present during the examination or privy to the diagnosis, although it is alleged that they had actual knowledge of the underlying situation.
. This statement assumes that Mr. Blumberg was the client. If the client is the Blumberg entities themselves, then competence is irrelevant because corporations cannot have mental states.
. The following table arranges appellees’ summaiy judgment motions by number and provides a brief summaiy of our disposition with respect to each.
Grounds For Motion COSA Disposition
(1) Limitations Affirmed on the basis of waiver.
(2) Appellees owed no duty to provide business Affirmed on the basis of advice. waiver.
(3) Appellees did not breach a duty to have a Affirmed, guardian appointed for Mr. Blumberg.
(4) Appellants' claims are barred by contributo- Affirmed, ry negligence and the doctrine of in pari delicto.
(5) The conflicts alleged by appellants are ei- Affirmed, ther "illusory” or waived.
(6) Arent Fox did not conceal any letters of Affirmed, intent.
(7) Arent Fox did not conceal from appellants Affirmed, knowledge of their financial status.
(8) There is no distinct cause of action for Affirmed; see Kann v. Kann, breach of fiduciary duty.
(9) The claim for malpractice does not support Affirmed on the basis of a breach of contract claim. waiver.
(10) Appellants failed to prove causation. Affirmed; moot in light of motion (4).
. As noted above, the eighth motion was a motion to dismiss, which the court treated as a summary judgment motion per Maryland Rule 2-322(c).
. We note that Ms. Blumberg also filed a petition to be appointed guardian of her father Herschel’s property. The petition was resolved by consent order on January 5, 2011, with Maijorie and John M. Quinn, Esq. appointed as co-guardians.
. Because Catler is a non-party, he was able to take an interlocutory appeal, even though we are now considering the appeals on a consolidated basis. Forensic Advisors, Inc. v. Matrixx Initiatives, Inc.,
. Catler alternatively refers to the output generated by his document review as work product or factual analysis and summary. What appellant produced, however, was not work product. Catler, a non-lawyer, lacks the ability to generate work product—at least in so far as it would support a resulting immunity from production. E.I. du Pont de Nemours & Co. v. Forma-Pack, Inc.,
. Although Catler’s alleged consulting services were engaged from December of 2009, Shulman Rogers and Catler did not reduce their understanding to writing until February 3, 2011.
. On May 25, 2011, Catler moved for a stay of the circuit court’s order pursuant to Maryland Rule 2-632. Because the presiding judge in the circuit court was occupied with another trial, Catler filed a similar motion with us. We granted a temporary stay on May 27, 2011, in order to allow the circuit court to rule on the motion Catler filed there. The circuit court then denied Catler’s motion and we, in turn, denied his request before us.
. Appellees claim that because the allegedly privileged documents were produced, and Catler re-deposed, this appeal is moot. We disagree and will address the appeal issues. See Harris v. State,
. In the guardianship proceeding that ran concurrent to the litigation here, Ms. Blumberg claimed that she “individually retained Shulman Rogers to conduct a review and analysis of all the documents pertaining to the loans and to render an opinion to her as to whether she faced any personal liability for the loans.” Ms. Blumberg's admissions support the conclusion that Shulman Rogers was retained initially to assess only Ms. Blumberg’s personal liability, although we do not place significant weight on this fact alone.
. The Dickstein Shapiro law firm served as personal counsel to Ms. Malone.
. "It is frequently said that summary judgment should not be granted if there is the slightest doubt as to the facts. Such statements are a rather misleading gloss on a rule that speaks in terms of genuine issue as to any material fact, and would, if taken literally, mean that there could hardly ever be a summary judgment, for at least a slight doubt can be developed as to practically all things human. A better formulation would be that the party opposing the motion is to be given the benefit of all reasonable doubts in determining whether a genuine issue exists." Clea v. Baltimore,
. See supra, note 14. As discussed further infra, we conclude that appellees waived their right to contest limitations, conflicts, certain aspects of their position on appellees’ fiduciary duty, and their breach of contract claim.
. Maryland Rule 8-504 requires, among other things, that the parties’ briefs include argument in support of each position taken. Pursuant to section 8-504(c), "[f|or noncompliance with this Rule, the appellate court may dismiss the appeal or make any other appropriate order with respect to the case....” "[I]f a point germane to the appeal is not adequately raised in a party’s brief, the [appellate] court may, and ordinarily should, decline to address it.” DiPino v. Davis,
. Appellees’ first motion for summary judgment focused on limitations.
. The rationale for tolling was provided on the agreement’s face: "[appellants] now believe they have or may have certain claims against [ ] [appellees]. However, none of the parties to this [agreement desires [appellants] to assert those actual or potential claims at this time.”
. "[W]hether or not the plaintiff's failure to discover his cause of action was due to failure on his part to use due diligence, or to the fact that defendant so concealed the wrong that plaintiff was unable to discover it by the exercise of due diligence, is ordinarily a question of fact for the jury.” O'Hara v. Kovens,
. Without argument on when appellants suffered damage resulting from appellees' allegedly conflicted advice with respect to the Wells Fargo loan, we must affirm the circuit court on the basis of waiver. At the motions hearing, appellants alleged that they suffered injury at the time they defaulted on the loan. Appellees argued that any injury occurred through the payment of legal fees that appellants knew was either the result of conflicted advice or of counseling that would ultimately lead an allegedly incompetent man to make irresponsible loan commitments. As discussed above, this question has not been presented for our review.
. See, e.g., DeGroft v. Lancaster Silo Co.,
. In appellants' words, “[t]he decline was observed by a wide cross-section of those working closely with Mr. Blumberg. Numerous emails dating back to 2003 memorialize various company employees' awareness of Mr. Blumberg's cognitive decline....”
. This argument was presented in appellees’ second motion for summary judgment.
. But Mr. Tucker testified that as of April 2007, “the belief was that the project would be successful and that he [Mr. Blumberg] would get the money back eventually. It was an investment in the University Town Center project, which he [Mr. Blumberg] was adamant that he wanted to see completed.”
. “A de facto officer has been defined as one in actual possession of an office under some colorable or apparent authority, who exercises the duties of the office under such circumstances of reputation and acquiescence by the public authorities and the public as is calculated to induce people, without inquiry, to submit to or invoke his official action, supposing him to be the officer he assumed to be.” Kone v. Baltimore County,
. This argument was presented in appellees’ fifth motion for summary judgment.
. This is the central theme of appellees’ ninth motion for summary judgment.
. "A Venn diagram or set diagram is a diagram that shows all possible logical relations between a finite collection of sets.” http://en.wikipedia. org/wiki/V enn_diagram.
. That no direct cause of action exists for a breach of fiduciary duty is argued in appellees’ eighth motion for summary judgment. As noted, Maryland does, however, allow for recovery from the breach of fiduciary duty, but the breach must be coupled with a proper cause of action. Int’l Bhd. of Teamsters v. Willis Corroon Corp.,
. Guardianship was argued in appellees’ third summary judgment motion.
. “There can be no negligence where there is no duty that is due; for negligence is the breach of some duty that one person owes to another. It is consequently relative and can have no existence apart from some duty expressly or impliedly imposed. In every instance before negligence can be predicated of a given act, back of the act must be sought and found a duty to the individual complaining, the observance of which duty would have averted or avoided the injury.... As the duty owed varies with circumstances and with the relation to each other of the individuals concerned, so the alleged negligence varies, and the act complained of never amounts to negligence in law or in fact; if there has been no breach of duty.” Grimes v. Kennedy Krieger Inst., Inc.,
. At paragraph seventy-six, appellants’ complaint states that "[e]vidence of Mr. Blumberg’s lack of mental capacity was known and available to Mr. Leval as early as 1999, if not earlier, and was repeatedly presented to Mr. Leval and other Arent Fox lawyers through June 2009, when Arent Fox’s relationship with Mr. Blumberg and the companies was terminated.” We note that individual appellee Gerard Leval was granted a general power of attorney for Mr. Blumberg, but not until December 17, 2007.
. The Court of Appeal has "classified an action for attorney malpractice as being in contract, [of which] the gravamen is the negligent breach of the contractual duty." Flaherty v. Weinberg,
. As stated in Professor Hazard's affidavit, “[appellees] misconstrue my deposition testimony ... I did not equate Rule 1.14 with the applicable standard of care, but instead explained that it sheds light on the standard of care, as does literature and case law.”
. “In Evans v. State,
. For example, when appellants drew attention to the complexity of the loan agreements vis a vis Mr. Blumberg's allegedly diminished mental capacity, the court said, "some doctor thinks this is complicated? So what?” Appellants’ real estate experts testified that the University Town Center expansion was exceptionally risky and did not comport with Mr. Blumberg's history of conservative investment and growth strategies. The court characterized one of appellants' real estate experts as a "professor who consults with REITs,” asking "has she ever run one?” Another of appellants’ experts testified to the economics of the loans and the prudence of the UTC project, stating that "[firom its inception, UTC was a very ambitious and risky project ... the project’s capital structure [ ] undermined the viability of PGMC’s most stable assets as nearly all of the equity was pulled from existing buildings and available cash was drained from related companies to finance new construction.” The court characterized this expert's position by stating, "in her view, she’s never seen a dumber deal on God’s green earth, although I don’t know I agree with her reasons....” The court, likewise, "d[id] not agree with” Professor Hazard’s opinion of the standard of care. Appellees’ counsel also focused on the experts’ practical experience, stating at the motions hearing that, “[tjhere’s no testimony by Schwartz or Hazard as to what the common practice was.” "Professor Hazard never sought the appointment of a guardian for anybody, doesn’t represent elderly clients ... and Ms. Schwartz could point to no real life experience with situations like this one.”
. 100 Inv. Ltd. P’ship v. Columbia Town Ctr. Title Co.,
. Appellees’ directly argue their position on appellants’ contributory negligence in their fourth motion for summary judgment.
. Summary judgment motion seven.
. Summary judgment motion six.
. "It is a presumption that in making a business decision the directors of a corporation acted on an informed basis, in good faith and in the honest belief that the action taken was in the best interests of the company. Absent an abuse of discretion, that judgment will be respected by the courts. The burden is on the party challenging the decision to establish facts rebutting the presumption." Boland v. Boland,
. Summary judgment motion number ten.
. As stated previously, even if they had produced sufficient evidence, our affirmation of the circuit court’s application of contributory negligence moots the potential jury question generated by proximate cause.