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DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. 23-CV-0165 & 23-CV-0217
ROGER TOVAR, APPELLANT/CROSS-APPELLEE,
v.
REGAN ZAMBRI LONG, PLLC, et al., APPELLEES/CROSS-APPELLANTS.
Appeal from the Superior Court of the District of Columbia (2022-CA-002053-M)
(Hon. Ebony M. Scott, Trial Judge)
(Argued March 21, 2024 Decided June 27, 2024)
Benjamin R. Ogletree, with whom Faith Kalman Reyes was on the brief, for appellant/cross-appellee.
Paul J. Maloney, with whom Stephen G. Rutigliano was on the brief, for appellees/cross-appellants.
Before HOWARD and SHANKER, Associate Judges, and THOMPSON, Senior Judge.
SHANKER, Associate Judge: Appellant Roger Tovar brought a legal
malpractice action against the law firm Regan Zambri Long, PLLC, and two of its
attorneys (collectively, “Regan”), alleging that, in representing him in a negligence
action against McKesson Corporation—which ultimately settled while it was on 2
appeal following a favorable verdict for Mr. Tovar—Regan failed to assert a
particular claim for damages. Mr. Tovar alleges that because Regan failed to seek
damages for his future medical care expenses, he lost the opportunity to win a
multi-million-dollar award.
Regan moved to dismiss the complaint or in the alternative for summary
judgment. The trial court granted Regan’s motion to dismiss on two alternative
grounds: (1) Mr. Tovar, in settling his negligence action against McKesson, released
Regan from future liability; and (2) Regan’s decision to forgo a claim for future
medical care expenses was protected under the judgmental immunity doctrine.
Mr. Tovar appeals, contending that (1) the trial court erred in granting the motion to
dismiss because the court considered material outside of the complaint and applied
the wrong standard for dismissal under Super. Ct. Civ. R. 12(b)(6), and (2) to the
extent the court essentially granted summary judgment for Regan, it did so by relying
on erroneous or disputed facts and without granting Mr. Tovar’s Super. Ct. Civ.
R. 56(d) request for additional discovery so that he could oppose Regan’s summary
judgment motion. Regan cross-appeals, arguing that the trial court erred in finding
that Mr. Tovar’s claim was not barred by the statute of limitations as a ground to
dismiss the claim. 3
We affirm the trial court’s statute-of-limitations determination, although on
different grounds, but otherwise reverse the dismissal of the complaint and remand
for further proceedings. 1
I. Background
A. Factual Background
Because the trial court purportedly granted a motion to dismiss, we derive the
following facts, which we take to be true, from Mr. Tovar’s complaint. In 2012, an
employee of McKesson Corporation rear-ended Mr. Tovar’s car, which was stopped
at a red light. Mr. Tovar suffered several injuries, including traumatic brain injury
(“TBI”), which caused cognitive impairment, short-term memory loss, chronic
fatigue syndrome, and other physical ailments. During his treatment, Mr. Tovar’s
TBI-related symptoms worsened, and he could no longer work as an information
technology security professional.
Mr. Tovar sued McKesson and its employee and hired Regan Zambri Long,
PLLC, to represent him. Regan attorney Paul Cornoni developed Mr. Tovar’s
litigation strategy and tried the case. Although Mr. Tovar’s TBI was permanent and
1 Mr. Tovar’s motion for leave to file a sur-reply is granted and the Clerk shall file Mr. Tovar’s sur-reply. 4
would require a lifetime of medical care, Regan failed to assert a claim for
Mr. Tovar’s future medical expenses and failed to inform him of this plan. Instead,
Regan requested damages only for Mr. Tovar’s bodily injuries and lost future wages.
At the end of the trial, the jury awarded Mr. Tovar $500,000 for bodily injuries
and $3,297,573 in lost wages. McKesson appealed but then the parties entered into
a settlement agreement, and this court dismissed the appeal. According to the
complaint, had Regan sought future medical expenses, Mr. Tovar “would have,
more likely than not, presented evidence of his need for extensive future medical
treatment and care at trial, would have been successful, received a multi-million-
dollar award to compensate [him] for the lifetime of future care, and would have
collected said award from” McKesson.
The parties also briefed Regan’s alternative motion for summary judgment,
and the following facts appear to be undisputed (although the trial court did not so
find because it stated that it was granting Regan’s motion to dismiss, not its summary
judgment motion). Before trial, Regan believed that Mr. Tovar could achieve a more
favorable damages verdict by forgoing compensation for past medical expenses
because those expenses could act as a low anchor for the jury. Regan explained this
to Mr. Tovar, who approved the strategy. Following the trial, Mr. Tovar was happy
with the verdict amount. After McKesson appealed the verdict, Mr. Tovar 5
knowingly and voluntarily entered into a settlement agreement with McKesson and
settled the matter for the full amount of damages awarded by the jury.
B. Procedural History
In 2022, Mr. Tovar filed a complaint against Regan, asserting one count of
legal malpractice/professional negligence for its failure to pursue compensation for
future medical expenses. Mr. Tovar alleges that by omitting this claim, Regan
breached its duty of care, and that but for the breach, Mr. Tovar would have received
a multi-million-dollar award for a lifetime of TBI-related medical expenses.
Regan filed a motion to dismiss and/or for summary judgment, pursuant to
Super. Ct. Civ. R. 12(b)(6) and 56, respectively. First, Regan argued that
Mr. Tovar’s complaint should be dismissed because it was (1) barred by the statute
of limitations, as it was filed more than three years after Mr. Tovar knew of the
alleged harm and it was not tolled by the Superior Court’s COVID-19 tolling orders,
(2) precluded by Mr. Tovar’s knowing and voluntary settlement of the underlying
matter, and (3) speculative as to whether Mr. Tovar would have obtained a higher
award had evidence of his future medical care expenses been presented at trial.
Second, Regan argued that it was entitled to judgment as a matter of law because
(1) any alleged error was protected under the judgmental immunity doctrine,
(2) Mr. Tovar consented to the underlying trial strategy, and (3) Mr. Tovar could not 6
meet his burden of establishing that Regan’s alleged error proximately caused him
injury.
Mr. Tovar opposed, arguing that dismissal or summary judgment in favor of
Regan would be improper because the complaint sufficiently pleaded a cause of
action and additional discovery under Super. Ct. Civ. R. 56(d) was necessary to
decide the summary judgment motion. The trial court held a hearing, and the parties
presented arguments concerning both motions.
In a written order, the trial court ruled that Mr. Tovar’s claim was not
time-barred because the limitations period had been tolled, but granted Regan’s
motion to dismiss on two alternative grounds. 2 First, relying on a release clause in
the settlement agreement between Mr. Tovar and McKesson, the court found that
Mr. Tovar had knowingly and voluntarily released Regan from future claims
stemming from the underlying matter. Second, the court found that Regan was
protected from liability under the judgmental immunity doctrine because it had made
a strategic decision to forgo future medical care costs.
For reasons we explain below, we treat one of the rulings as granting 2
summary judgment instead of dismissal. See infra Section II.A.2.b. 7
The court stated that it was not reaching Regan’s alternative request for
summary judgment but observed that, if it had reached the issue, the following facts
would have warranted granting summary judgment for Regan: (1) Regan’s decision
to not assert a claim for future medical expenses was reasonable and a protected
exercise of legal judgment; (2) Mr. Tovar approved the trial strategy; (3) Mr. Tovar
knowingly and voluntarily settled the underlying negligence matter; and
(4) Mr. Tovar failed to present an expert to support his claim that Regan breached
its duty of care.
Accordingly, the trial court dismissed Mr. Tovar’s complaint with prejudice.
The court did not explicitly address Mr. Tovar’s request for additional time for
discovery.
This appeal and cross-appeal followed.
II. Analysis
Boiled to their essence, Mr. Tovar’s claims in this court are that the trial court
purportedly granted a motion to dismiss but it did not limit its analysis of his
complaint to the question whether, on its face, it pleads a cognizable cause of action;
and, to the extent the court essentially granted Regan summary judgment, it relied 8
on erroneous or disputed facts and improperly denied him additional discovery under
Super. Ct. Civ. R. 56(d).
We agree that the trial court erred in granting Regan’s motion to dismiss.
Although the court did not err in considering the settlement agreement, the
agreement was not an appropriate basis for dismissing Mr. Tovar’s claim because it
did not release Regan from future liability.
As for the court’s judgmental-immunity ruling, we review that ruling as a
grant of summary judgment because judgmental immunity is an affirmative defense
and the court considered matters outside the complaint. Given the record before us,
we are unable to resolve whether summary judgment was proper because the court
failed to address Mr. Tovar’s request for additional discovery before ruling on
summary judgment.
Accordingly, we vacate the trial court’s order and remand for the court to
consider Mr. Tovar’s Rule 56(d) request for additional discovery before determining
whether, based on undisputed material facts, summary judgment is appropriate on
grounds of judgmental immunity.
On cross-appeal, Regan claims that the trial court erred in denying its motion
to dismiss on statute-of-limitations grounds. Specifically, Regan asserts that the trial 9
court erroneously found that the limitations period had been tolled under the
Superior Court’s emergency COVID-19 orders (although Regan agrees with the trial
court that the limitations period should be calculated using three consecutive
365-day periods despite an intervening leap year). We agree with Regan that the
COVID-19 orders did not toll Mr. Tovar’s limitations period, but we conclude that
Mr. Tovar nonetheless filed his complaint within three years of the accrual of his
claim and therefore affirm the trial court’s ruling that Mr. Tovar’s claim is not
time-barred.
A. The Dismissal and/or Grant of Summary Judgment
Mr. Tovar contends that the trial court erred in granting Regan’s motion to
dismiss and/or for summary judgment. We agree.
1. Standard of Review and Applicable Law
“A Rule 12(b)(6) motion [to dismiss] tests the legal sufficiency of the
complaint . . . .” Carey v. Edgewood Mgmt. Corp., 754 A.2d 951, 954 (D.C. 2000).
“We review an order granting a motion to dismiss de novo.” Hillbroom v.
PricewaterhouseCoopers LLP, 17 A.3d 566, 572 (D.C. 2011).
“To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face.” 10
Potomac Dev. Corp. v. District of Columbia, 28 A.3d 531, 544 (D.C. 2011) (internal
quotation omitted). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. (internal quotation omitted). “Any
uncertainties or ambiguities in the complaint must be resolved in favor of the
pleader.” Hillbroom, 17 A.3d at 572 (internal quotation omitted).
“Generally speaking, a defendant raising a 12(b)(6) defense cannot assert any
facts which do not appear on the face of the complaint itself.” Scott v. FedChoice
Fed. Credit Union, 274 A.3d 318, 322 (D.C. 2022) (internal quotation omitted).
“If . . . matters outside the pleadings are presented to and not excluded by the court,
the [12(b)(6)] motion must be treated as one for summary judgment under Rule 56.”
Super. Ct. Civ. R. 12(d). In that case, “the trial court must give the parties notice of
its intention to consider summary judgment and an adequate opportunity to present
affidavits or other matters appropriate to ruling on such a motion.” Katz v. District
of Columbia, 285 A.3d 1289, 1314 (D.C. 2022) (internal quotation omitted).
A court may, however, consider documents that are incorporated in the
plaintiff’s complaint without converting the motion to dismiss into one for summary
judgment. See Chamberlain v. Am. Honda Fin. Corp., 931 A.2d 1018, 1024-25
(D.C. 2007) (collecting cases). Accordingly, a defendant may present authentic 11
copies of such documents in their motion to dismiss. Oparaugo v. Watts, 884 A.2d
63, 76 n.10 (D.C. 2005).
2. Discussion
a. The Settlement Agreement
Mr. Tovar contends that the trial court both erroneously considered and
erroneously interpreted the settlement agreement in determining that, in light of its
terms, he failed to state a claim against Regan. We disagree with Mr. Tovar’s first
contention and hold that the court’s consideration of the settlement agreement was
proper. We agree, however, that the trial court erroneously found that Mr. Tovar’s
malpractice claim was barred by the terms of the settlement agreement.
i. Consideration of the Settlement Agreement
Mr. Tovar argues that the trial court could not consider the settlement
agreement in ruling on the Rule 12(b)(6) motion because his complaint made only a
limited reference to his settlement with McKesson and the agreement was not central
to his malpractice claim. We disagree.
In our view, the trial court properly considered the settlement agreement in
the circumstances of this case. First, although we have occasionally concluded that
courts can refer to documents that are referenced in the complaint and “central” to 12
the plaintiff’s claim, Oparaugo, 884 A.2d at 76 n.10, we have not always expressly
required centrality, see, e.g., Washkoviak v. Student Loan Mktg. Ass’n, 900 A.2d
168, 178 (D.C. 2006) (promissory notes referenced in plaintiff’s original complaint
were “incorporated in the complaint” and properly considered); Bell v. First Invs.
Servicing Corp., 256 A.3d 246, 251 (D.C. 2021) (“[T]he court may consider the
complaint itself and any documents it incorporates by reference.” (internal quotation
and alteration omitted)). Second, Mr. Tovar’s complaint—which alleges that “[he]
and the [McKesson] defendants reached a settlement” to resolve the underlying
matter—incorporated the settlement agreement by reference. See Moore v. United
States Dep’t of State, 351 F. Supp. 3d 76, 84 & n.3 (D.D.C. 2019) (complaint
alleging that plaintiff “entered a settlement agreement with [defendant]”
incorporated agreement by reference); Halldorson v. Sandi Grp, 934 F. Supp. 2d
147, 152 (D.D.C. 2013) (complaint alleging that plaintiff’s claims “led to a[ ] . . .
settlement” incorporated the settlement agreement by reference) (internal quotation
omitted). Third, Mr. Tovar does not contest the authenticity of the settlement
agreement—he contests only its relevance and application to his malpractice claim.
See Halldorson, 934 F. Supp. 2d at 152 (considering an incorporated agreement
because “plaintiff does not challenge the validity of the Settlement Agreement or its
terms, only the effect of those terms on this litigation”); Scott, 274 A.3d at 325 n.23
(holding that the court could consider a credit card agreement attached to defendant’s 13
motion to dismiss where plaintiff had referred to the agreement and its authenticity
was undisputed). Accordingly, the trial court was permitted to consider the
settlement agreement without converting the motion to dismiss into one for summary
judgment. 3
ii. The Legal Effect of the Settlement Agreement
The settlement agreement between Mr. Tovar and McKesson contained the
following release provision:
Tovar . . . does . . . hereby remise, release, acquit and forever discharge McKesson Corporation and all of its affiliates, predecessors, successors, parents, subsidiaries, officers, directors, employees, agents, contractors, and insurers (collectively referred to as “Releasees”) from any and all past, present or future actions, causes of action, claims, demands, liabilities, suits, damages, costs, expenses or obligations of any kind whatsoever, which Tovar ever had, now has, or may ever have against the Releasees, arising from or relating to a motor vehicle accident that occurred on or about April 26, 2012 in the District of Columbia . . .
3 Even if the settlement agreement was not incorporated, Mr. Tovar has failed to show that he was prejudiced by any error in treating the motion as one for summary judgment. See Chamberlain, 931 A.2d at 1025 (“[N]o prejudice can result from nonobservance of Rule 12(b)’s notice-and-opportunity requirement where it is clear that the dispositive facts will remain undisputed and unchanged.” (internal quotation and alterations omitted)). Here, the terms of the settlement agreement are undisputed and any technical error in considering the settlement agreement was harmless. 14
Interpreting this provision, the trial court found that Mr. Tovar had “unambiguously”
agreed to release Regan from future liability and thus he did not have a cognizable
cause of action against Regan. On appeal, Mr. Tovar contends that the express terms
of the provision did not release Regan from liability and that the act of settling the
underlying matter did not effectively operate as a waiver of claims against Regan.
We agree.
“A release is a form of contract, and the rules of contract construction govern
its interpretation.” District of Columbia v. Washington Hosp. Ctr., 722 A.2d 332,
342 (D.C. 1998). “Where the language is clear and unambiguous, its plain language
is relied upon in determining the parties’ intention.” Id. If the terms of the release
“leave no room for doubt, the effect of the release can be determined as a matter of
law.” Id.
Here, the release provision does not list Regan as one of the “Releasees,” and
it is unequivocal that only “McKesson Corporation” was released from any further
action related to the accident. Thus, dismissing Mr. Tovar’s claim on the grounds
that the settlement agreement released Regan from liability was error. See id.
(holding that under its plain terms, the settlement agreement’s failure to discharge
appellee was facially unambiguous, and there was no reason to conclude otherwise). 15
Regan contends that, notwithstanding the release provision, Mr. Tovar’s
acceptance of the settlement functioned as a complete resolution of the underlying
matter, including any challenge to the adequacy of his attorneys’ strategy. We are
unpersuaded.
Settlement agreements resolve disputes between parties but do not necessarily
address the separate professional duties owed by attorneys to their clients. When a
client alleges that the attorney’s conduct was unreasonable or constituted
malpractice, the existence of a settlement agreement between the underlying parties
does not always serve as a bar to a client’s later malpractice action. See E.B.P., Inc.
v. Cozza & Steuer, 694 N.E.2d 1376, 1379 (Ohio Ct. App. 1997) (concluding that a
malpractice claim remains viable if the attorney’s conduct was unreasonable or
constitutes malpractice); cf. Durkin v. Shea & Gould, 92 F.3d 1510, 1517-18 (9th
Cir. 1996) (“[A] court-approved settlement or judgment does not immunize an
attorney from a subsequent malpractice action.”).
Here, Mr. Tovar’s settlement may have resolved his claims against
McKesson, but the act of settling does not bear on whether Regan’s conduct was
reasonable and does not necessarily absolve Regan of any professional negligence
that it may have committed during the representation. See Monastra v. D’Amore,
676 N.E.2d 132, 136 (Ohio Ct. App. 1996) (“If the evidence should show that 16
[attorney’s] defective representation diminished [the client’s] ability to reach a
successful settlement or succeed at trial, we see no reason why a waiver of that
malpractice claim should be implied by reason of the settlement.”); Grace v. Law,
969 N.Y.S.2d 661 (N.Y. App. Div. 2013) (acceptance of a settlement agreement in
underlying action did not waive plaintiff’s malpractice claim against attorneys),
aff’d, 24 N.Y.3d 203 (N.Y. 2014). A settlement award that is seemingly favorable
to the client does not necessarily establish that an attorney met the requisite standard
of care. We therefore conclude that in these circumstances, Mr. Tovar’s acceptance
of the settlement agreement did not waive a claim for malpractice against Regan and
dismissal of the complaint on that basis was erroneous.4
4 In contending otherwise, Regan relies on two cases that are distinguishable. In both cases, the clients were precluded from arguing that their inadequate settlements were caused by their attorneys’ malpractice because the clients had voluntarily accepted the settlements despite being aware that the settlement agreements had shortcomings due to their attorneys’ substandard representation. See Venable LLP v. Overseas Lease Grp., Inc., No. CV 14-02010, 2015 WL 4555372, at *3 (D.D.C. July 28, 2015); Vogel v. Touhey, 828 A.2d 268, 288 (Md. Ct. Spec. App. 2003). Here, however, Mr. Tovar claims that he did not know about Regan’s alleged decision to omit a claim for future medical expenses or its alleged view that omitting such claim was prudent. Additionally, he argues that as “a non-attorney” he was unaware of “his legal right to pursue such a claim” because he was never informed that these damages were available. Therefore, at this stage, Mr. Tovar has adequately pleaded that he was not aware of Regan’s alleged substandard representation before signing the settlement agreement and did not knowingly and voluntarily enter into the settlement agreement despite its shortcomings. 17
b. Judgmental Immunity
Mr. Tovar contends that the trial court erred in dismissing his complaint under
Rule 12(b)(6) based on the judgmental immunity doctrine. We agree with his
assertion that the trial court effectively issued a summary judgment ruling instead of
a dismissal. The question, then, is whether Mr. Tovar had a reasonable opportunity
to respond as required under Rule 12(d). Because the trial court failed to address
Mr. Tovar’s request for additional discovery before it ruled on Regan’s summary
judgment motion, infra Section II.B, we remand for further proceedings.
In its motion for summary judgment, Regan attached Mr. Cornoni’s affidavit
as evidence of Mr. Cornoni’s deliberative process in deciding to forgo a claim for
Mr. Tovar’s future medical care expenses at trial. Mr. Cornoni claimed that he
conducted a careful analysis of at least sixteen factors, had “communications with
several members of the DC Bar, including my partner, Patrick Regan, among
others,” and concluded that pursuing a plan for future healthcare expenses “would
have been a terrible mistake.”
For example, Mr. Cornoni averred that he evaluated the medical opinions of
Mr. Tovar’s health care providers, Mr. Tovar’s EMT records, emergency room
records, MRI scans, and photographs of the car accident, which tended to show that
Mr. Tovar’s pursuit of medical care was unnecessary and that he had not suffered 18
traumatic brain injury from the incident. Mr. Cornoni also claimed that he believed
that placing Mr. Tovar’s past medical history at issue would have made Mr. Tovar
vulnerable to “extensive cross-examination” concerning his “doctor-shopping,”
which led him to see approximately forty different doctors; the “many strange
comments” he made in his journal and to his healthcare providers; and the fact that
he did not currently require medical care from his providers. In sum, according to
Mr. Cornoni, putting forth a life care plan for future medical expenses was unwise
because it was unsupported by most of Mr. Tovar’s treatment providers (including
his primary care physician) and would have damaged Mr. Tovar’s credibility,
leading to a significantly lower verdict. Instead, Mr. Cornoni’s trial strategy
“focus[ed] on the effect Mr. Tovar’s mild traumatic brain injury had on his life and
his inability to work.”
A plaintiff must establish three elements to prevail on a legal malpractice
claim: “the applicable standard of care, a breach of that standard, and a causal
relationship between the violation and the harm complained of.” Biomet Inc. v.
Finnegan Henderson LLP, 967 A.2d 662, 664 (D.C. 2009). The standard of care
that a lawyer must exercise is “that degree of reasonable care and skill expected of
lawyers acting under similar circumstances.” Morrison v. MacNamara, 407 A.2d
555, 561 (D.C. 1979). 19
The judgmental immunity doctrine “provides that an informed professional
judgment made with reasonable care and skill cannot be the basis of a legal
malpractice claim.” Biomet Inc., 967 A.2d at 666. Judgmental immunity is an
affirmative defense that is generally not amenable to resolution at the
motion-to-dismiss or summary-judgment stage. See id. at 665.
The trial court found that Regan’s decision to omit Mr. Tovar’s claim for
future medical expenses constituted a protected legal judgment. The court noted
Regan’s exercise of discretion in pursuing “the most favorable outcome” for
Mr. Tovar, opting to “not second-guess the very trial strategy that once made
[Mr. Tovar] very happy.”
The factual bases supporting Regan’s “informed professional judgment,”
however, are not evident from the face of the complaint. See Biomet Inc., 967 A.2d
at 666. Instead, they are contained in Mr. Cornoni’s affidavit, which was attached
to Regan’s written motion. While the court did not directly cite to Mr. Cornoni’s
affidavit, it could not have evaluated the merits of the judgmental-immunity defense
without it. Consequently, as the affidavit was a matter outside the pleadings, the
court ruled as a matter of summary judgment rather than dismissal for failure to state
a claim. See Washkoviak, 900 A.2d at 178-79 (the affidavits attached
“unquestionably alleged facts extrinsic to the pleadings” and the court’s reliance on 20
the affidavit’s contents in making its findings “effectively converted” the motion to
dismiss into one for summary judgment).
This was not necessarily problematic under Rule 12 as long as Mr. Tovar had
“a reasonable opportunity to present all the material that is pertinent to the [summary
judgment] motion.” See Super. Ct. Civ. R. 12(d). As we discuss next in
Section II.B, however, the trial court never considered Mr. Tovar’s argument that he
required additional discovery. Furthermore, the trial court’s ruling gives us
additional pause because the court appeared to rely on disputed issues of material
fact, including whether Regan had made a conscious decision to forgo a claim for
future medical expenses.
B. Failure to Address Discovery Request
Mr. Tovar contends that the trial court’s grant of summary judgment was
premature because, under Super. Ct. Civ. R. 56(d), he should have been granted
additional time for discovery before the court ruled on Regan’s motion. We hold
that granting summary judgment before ruling on Mr. Tovar’s discovery request was
error. We therefore vacate and remand so that the court can consider whether
additional discovery is warranted regarding the issue of judgmental immunity, and,
whether or not it grants that discovery, to decide the motion for summary judgment
based on undisputed material facts. 21
“Rule 56(d) affords protection against the premature or improvident grant of
summary judgment.” Nawaz v. Bloom Residential, LLC, 308 A.3d 1215, 1229 (D.C.
2024) (internal quotation omitted). A court may defer considering the motion or
deny it if the party opposing summary judgment “adequately explains why, at that
timepoint, it cannot present by affidavit facts needed to defeat the motion.”
Travelers Indem. Co. of Illinois v. United Food & Com. Workers Int’l Union, 770
A.2d 978, 994 (D.C. 2001) (discussing then-Rule 56(f)) (internal quotation omitted).
The party cannot simply claim that discovery is incomplete or that they do not have
enough facts to oppose summary judgment; rather, they “must demonstrate precisely
how additional discovery will lead to a genuine issue of material fact.” Id.
When presented with a Rule 56(d) request, “[t]he court has a duty . . . to
ensure that the parties have been given a reasonable opportunity to make their record
complete before ruling” on the summary judgment motion. Id. “Rule 56[d] requests
should be liberally construed” and a denial is reviewed for abuse of discretion. Id.
at 993-94 (internal quotation omitted). 22
Summary judgment is appropriate only “after adequate time for discovery,”
and it is unclear, given the record before us, whether adequate time was afforded to
Mr. Tovar in light of his Rule 56(d) request. See Kibunja v. Alturas, L.L.C., 856
A.2d 1120, 1124-25 (D.C. 2004) (internal quotation omitted).
Mr. Tovar claimed that he required additional discovery to resolve specific
questions pertaining to Regan’s judgmental-immunity defense. 5 Specifically, he
asserted that he needed to depose Regan and the D.C. Bar members whom
Mr. Cornoni had allegedly consulted to explore the details, timing, and accuracy of
their communications regarding his case. Additionally, he asserted that he needed
5 As an initial matter, Mr. Tovar’s affidavit alone is insufficient to invoke the protection of Rule 56(d). In it, he merely cites to his lack of personal insight regarding why Regan dropped a claim for future TBI-related care expenses and does not clarify how further discovery would reveal any significant factual disagreement. If a party’s affidavit is insufficient, however, a “flexible approach” is sometimes warranted if other factors “sufficed to alert the trial court of the need for further discovery.” Travelers Indem. Co. of Illinois, 770 A.2d at 965-66 (holding that granting summary judgment was premature, even though the party’s affidavit was insufficient, because party’s opposition and outstanding discovery request, both of which were filed with the affidavit, explained the specific basis and need for further discovery) (internal quotation omitted). Here, Mr. Tovar’s written opposition explained why he sought additional discovery to rebut the reasonableness of Regan’s alleged strategic decision to forgo the claim and sufficiently alerted the court to the issue. See id. Accordingly, Mr. Tovar’s request under Rule 56(d) was adequate. 23
the identities of the medical providers who Mr. Cornoni alleged were unsupportive
of a TBI-related care plan, citing the existence of other medical providers who
believed that Mr. Tovar had TBI and the absence of records showing that Regan had
discussed the necessity of TBI-related care with these providers.
The trial court’s order makes no mention of Mr. Tovar’s request. Regan
argues, though, that that does not matter because the discovery Mr. Tovar requested
would not have demonstrated that Mr. Cornoni’s decision was not protected by
judgmental immunity. Regan emphasizes that Mr. Cornoni’s affidavit indisputably
showed that he undertook a thorough assessment of the strengths and weaknesses of
Mr. Tovar’s claims and exercised reasonable care.
The resolution of these questions is best left to the discretion of the trial court.
Id. at 995 & n.21 (“[I]t is incumbent on the court to make sure that the parties have
had an opportunity to develop the record before ruling on a summary judgment
motion, particularly where, as here, a party claims the need for discovery.”). The
trial court, however, failed to exercise that discretion, and we decline to decide the
matter in the first instance. See Jaiyeola v. District of Columbia, 40 A.3d 356, 373
(D.C. 2012) (declining to affirm summary judgment on a separate ground
unaddressed by the trial court, especially in light of “unresolved discovery
questions” raised in appellant’s Rule 56(d) affidavit); Flax v. Schertler, 935 A.2d 24
1091, 1102 (D.C. 2007) (remanding because the court failed to consider whether
Ms. Flax was entitled to avoid summary judgment pending further discovery on her
claims and because the record was insufficient to conclude that the facts left the trial
court only with the option to deny further discovery). Accordingly, we vacate the
grant of summary judgment and remand for further proceedings. 6
C. Statute of Limitations
In its cross-appeal, Regan argues that the trial court erroneously rejected its
argument that Mr. Tovar’s claim was time-barred. We agree with the trial court that
the claim was timely but on different grounds.
1. Standard of Review
“Generally, the statute of limitations is invoked as an affirmative defense, and
the defendant bears the burden of showing that a claim is time-barred.” Logan v.
LaSalle Bank Nat. Ass’n, 80 A.3d 1014, 1019-20 (D.C. 2013). “At the Rule 12(b)(6)
stage, a court should not dismiss on statute of limitations grounds unless the claim
is time-barred on the face of the complaint.” Id. at 1020. Accordingly, our review
6 We do not pass on the merits of Mr. Tovar’s discovery request and leave open the possibility for the trial court to grant summary judgment based on undisputed facts after it resolves the request. 25
of the court’s statute of limitations ruling is de novo. Estenos v. PAHO/WHO Fed.
Credit Union, 952 A.2d 878, 885 (D.C. 2008).
It is undisputed that Mr. Tovar filed his legal malpractice claim on May 9,
2022, and that the applicable limitations period is three years. D.C. Code
§ 12-301(8). The parties dispute, however, (1) when the limitations period for
Mr. Tovar’s claim began running, (2) whether the Superior Court’s emergency
COVID-19 orders tolled the limitations period, and (3) whether, if the limitations
period was not tolled, Mr. Tovar timely filed his claim.
We affirm the trial court’s conclusion that the complaint was timely, albeit for
different reasons. See Grimes v. D.C., Bus. Decisions Info. Inc., 89 A.3d 107, 112
n.3 (D.C. 2014) (“Where there will be no procedural unfairness, we may affirm a
judgment on any valid ground, even if that ground was not relied upon by the trial
judge . . . .” (internal quotation omitted)). We refrain from deciding the precise date
when the limitations period began running because Regan concedes that the
limitations period began running at the latest on May 7, 2019 (the date that the
Praecipe of Satisfaction of Judgment was filed with the court), and, using that date,
Mr. Tovar filed his complaint by the three-year deadline. 26
a. COVID-19 Tolling Orders
“In the event of a natural disaster or other emergency situation,” the Chief
Judge of the Superior Court for the District of Columbia may “enter such order or
orders as may be appropriate to delay, toll, or otherwise grant relief from the time
deadlines imposed by otherwise applicable laws or rules.” 7 D.C. Code § 11-947(a).
On March 19, 2020, in response to the COVID-19 pandemic, the Chief Judge
issued the first of several amended orders tolling the statute of limitations period.
The order provided, in relevant part, that
[u]nless otherwise ordered by the court, all deadlines and time limits in statutes, court rules, and standing and other orders issued by the court that would otherwise expire before May 15, 2020 including statutes of limitations, are
7 Tolling or extending a time deadline beyond fourteen days requires the consent of the Joint Committee on Judicial Administration. D.C. Code § 11-947(d). The Joint Committee has specific responsibilities over the administration of the District of Columbia court system and is comprised of the Chief Judge and one associate judge of the Court of Appeals and the Chief Judge and two associate judges of the Superior Court. Id. § 11-1701. At the onset of the COVID-19 pandemic, on March 18, 2020, the Joint Committee issued an order authorizing the Chief Judges of the District of Columbia Court of Appeals and Superior Court to toll or extend deadlines during the emergency period, commencing from the order’s issuance. D.C. Joint Comm. on Jud. Admin. Order, Order Regarding Operation of the DC Courts During the Coronavirus Emergency at 2 (March 18, 2020). Drawing from this authority, the Chief Judge of the Superior Court amended the Joint Committee’s order and extended all deadlines that would have expired during the emergency period. 27
suspended, tolled, and extended during the period of the current emergency.
Super. Ct. Order at 2 (amended Mar. 19, 2020) (emphasis added). The next amended
order, issued on May 14, 2020, added a separate section pertaining to civil cases,
retaining the same language and moving only the placement of “statute[s] of
limitations.”
Unless otherwise ordered by the court, all deadlines and time limits in statutes (including statute[s] of limitations), court rules, and standing and other orders issued by the court that would otherwise expire during the period of emergency are suspended, tolled and extended during the period of emergency . . . .
Id. at 2 (amended May 14, 2020) (emphasis added). The tolling period was extended
in a series of subsequent amendments, and the orders retained this same language
until the Chief Judge suspended tolling for civil cases on March 30, 2021. 8
The trial court concluded that “all statutes of limitations were tolled between
March 18, 2020 and March 30, 2021,” even if the expiration did not fall within that
period, and thus that that year-plus period did not count against Mr. Tovar. The
parties dispute whether the emergency tolling orders tolled only limitations periods
that expired during the period covered by the orders or essentially paused all
8 See id. at 3 (amended June 19, 2020); id. at 3 (amended August 13, 2020), id. at 3 (amended November 5, 2020); id. at 3 (amended January 13, 2021); id. at 3 (amended March 30, 2021). 28
limitations periods—including Mr. Tovar’s, which did not expire during the
emergency period—during the period that the tolling orders were in place.
Principles of statutory construction guide our interpretation of the tolling
orders. Cf. Varela v. Hi-Lo Powered Stirrups, Inc., 424 A.2d 61, 65 (D.C. 1980)
(utilizing the same methods of statutory construction in interpreting Superior Court
procedural rules as the court would for a statute); see also In re Hosein, 300 A.3d
68, 85 (Md. 2023) (Hotten, J., concurring) (applying canons of statutory
interpretation in interpreting administrative tolling order issued by Maryland Chief
Judge). Accordingly, our review is de novo. See Bishop v. United States, 310 A.3d
629, 641 (D.C. 2024).
We first consider whether the language is “plain and admits of no more than
one meaning.” United States v. Facon, 288 A.3d 317, 328 (D.C. 2023) (internal
quotation omitted). We examine the words “according to their ordinary sense and
with the meaning commonly attributed to them.” Peoples Drug Stores, Inc. v.
District of Columbia, 470 A.2d 751, 753 (D.C. 1983) (en banc) (internal quotation
omitted).
The language of the tolling orders is plain and unambiguous. The orders state
that “all deadlines and time limits . . . including statute[s] of limitations . . . that
would otherwise expire during the period of emergency are suspended, tolled and 29
extended during the period of emergency.” Id. at 2 (amended May 14, 2020)
(emphasis added). The phrase “that would otherwise expire during the period of
emergency” modifies all the listed terms having “deadlines and time limits,”
including statutes of limitations. Thus, to qualify for tolling, the deadline must have
fallen within the emergency period, which was March 18, 2020, to March 30, 2021.9
We conclude that this is the most natural reading of the tolling orders. The
trial court, however, found that “all statutes of limitations were tolled between
March 18, 2020 and March 30, 2021, so long as they fell within the tolling period.”
Although other Superior Court judges have followed this interpretation, see Berg. v.
Hickson, No. 21-CA-1977-V, at 3-4 (D.C. Super. Ct. Aug. 19, 2021); Benitez v.
Ingram, No. 18-7957, 2021 WL 9667365, at *1, n.1 (D.C. Super. Ct. June 2, 2021);
Crown v. Gronigen, 22-CA-121-B, at 4 (D.C. Super. Ct. June 2, 2022), we
respectfully disagree.
9 The addendum issued by the Presiding Judge of the Civil Division on January 21, 2021, supports our interpretation. The addendum clarified that “[i]f an event before the start of the tolling period triggered a deadline that falls within the tolling period, the number of days remaining before the original deadline on March 18 are added to the end of the tolling period.” Addendum to the General Order Concerning Civil Cases (amended Jan. 21, 2021) (emphasis added). The plain language, again, indicates that the deadline must “fall[ ] within the tolling period” for the limitations period to be tolled. 30
The trial courts that have applied a “pausing” approach for all limitations
periods appeared to be concerned that adopting a narrower interpretation “would
lead to an unjust result for the unfortunate hypothetical litigant.” See Richards v.
Hilliard, No. 23-CAB-1452, at 5 (May 9, 2023) (declining to follow the approach
adopted by other Superior Court judges). For example, a litigant whose claim arose
on April 1, 2018, would have been required to file their claim by April 1, 2021. Had
their claim arisen just one day earlier, on March 30, 2018, however, their three-year
deadline would have fallen within the tolling period, extending the deadline to file
suit until April 2022. See id. (citing orders).
We are unconvinced that this hypothetical scenario creates such an absurd
result as to countermand the clear intent expressed by the Chief Judge. See id. at 6
(perceiving “nothing irrational” about tolling limitations periods only where the
deadline expired during the emergency, under the reasoning that a plaintiff and
lawyer “should not be forced to meet and investigate their claims during the heart of
the pandemic but that those activities [were] safe once the judicial emergency was
lifted”).
Nor are we convinced that this interpretation is implausible or unreasonable,
especially given that courts in other jurisdictions also restricted tolling to cases
where the limitations period expired within a defined timeframe. See, e.g., In re 31
Covid-19 Precautionary Measures, Administrative Order No. 7 at 2 (Del. June 5,
2020) (“Statutes of limitations . . . that would otherwise expire during the
[emergency] period . . . are hereby extended . . . . [S]tatutes of limitations . . . that
are not set to expire [during the emergency period] are not extended or tolled by this
order.”); Order of the Chief Justice of the Supreme Court of North Carolina (May
21, 2020) (“All periods of limitation that were set to expire [during the emergency
period] . . . inclusive of those dates, are hereby extended . . . .”); Renewed and
Amended Order Suspending In-Person Court Proceedings Related to New
Hampshire Circuit Court and Restricting Public Access to Courthouses at 4 (Mar.
27, 2020) (“Statutes of limitations . . . that would otherwise expire during the period
[during the emergency period] are hereby extended . . . . [S]tatutes of limitations . . .
that are not set to expire [during the emergency period] are not extended or tolled by
this order.”).
Accordingly, we conclude that, at least for civil cases, the tolling orders tolled
the limitations period only in cases where the limitations period expired during the
March 18, 2020, to March 31, 2021, emergency period. Although the parties dispute
the specific date the limitations period was triggered, under all three of Regan’s
proposed dates, the applicable deadlines fall outside the emergency period and thus
do not trigger tolling. 32
Having concluded that tolling is inapplicable, we turn to whether Mr. Tovar
timely filed his complaint within three years.
b. Anniversary Rule
Assuming that the latest possible date of accrual offered by Regan, May 7,
2019, is correct, the remaining question is how to calculate the limitations period
from that date.
Regan contends that a three-year period is equal to 1,095 days (365 days x 3)
(and, although the trial court relied on tolling, it also adopted this number). In
Regan’s view, because the 1,095th day after May 7, 2019, was May 6, 2022,
Mr. Tovar’s claim was untimely. Mr. Tovar, on the other hand, argues that because
2020 was a leap year and consisted of 366 days, the three-year period is equal to
1,096 days. Under Mr. Tovar’s calculation, the limitations period ended on May 7,
2022, a Saturday, which then extended the deadline until the following Monday,
May 9, 2022—the day he filed. We agree with Mr. Tovar.
In calculating limitations periods measured in years, courts have applied either
the “calendar method” or the “anniversary method.” Singh v. Att’y Gen. U.S., 807
F.3d 547, 550 n.5 (3d Cir. 2015). Under the calendar method, one year is measured
as “a consecutive 365-day period,” even during a leap year. Habibi v. Holder, 673 33
F.3d 1082, 1087-88 (9th Cir. 2011). The date the cause of action accrues is counted
toward the limitations period, so the last day to file ends on the preceding day of the
following year(s). See United States v. Marcello, 212 F.3d 1005, 1008-09 (7th Cir.
2000). Here, three consecutive 365-day periods from May 7, 2019, would be May
6, 2022, rendering Mr. Tovar’s filing on May 9, 2022, untimely.
Under the anniversary method, “[t]he anniversary date is the last day to file
even when the intervening period includes the extra leap year day.” United States
v. Hurst, 322 F.3d 1256, 1260 (10th Cir. 2003) (internal quotations omitted). The
date the cause of action accrues is not counted toward the limitations period.
Marcello, 212 F.3d at 1009. Here, the triggering event fell on May 7, 2019. The
three-year anniversary of this event was therefore May 7, 2022, a Saturday, and,
under Super. Ct. Civ. R. 6(a)(1)(C), Mr. Tovar’s filing on the following Monday,
May 9, 2022, was timely.
Because the D.C. Code does not specify the method of computation for
limitations periods stated in a term of years, we look to Super. Ct. Civ. R. 6(a) for
the following guidance:
(1) Period Stated in Days or a Longer Unit. When the period is stated in days or a longer unit of time:
(A) exclude the day of the event that triggers the period; 34
(B) count every day, including intermediate Saturdays, Sundays and legal holidays; and
(C) include the last day of the period, but if the last day is a Saturday, Sunday, or a legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday.
Although Super. Ct. Civ. R. 6(a) does not describe how to count a leap year,
Super. Ct. Civ. R. 6(a) is virtually identical to the corresponding federal rule, Fed.
R. Civ. P. 6(a). See D.C. Code § 11-946 (“The Superior Court shall conduct its
business according to the Federal Rules of Civil Procedure . . . .”). “[W]hen a local
rule and a federal rule are identical, we may look to federal court decisions
interpreting the federal rule as persuasive authority in interpreting the local rule.”
Goldkind v. Snider Bros., 467 A.2d 468, 472 (D.C. 1983) (internal quotation,
footnote, and alteration omitted).
Federal courts have adopted the anniversary method, which is consistent with
the method of time computation under Fed. R. Civ. P. 6(a). See, e.g., ASARCO, LLC
v. Union Pac. R.R. Co., 765 F.3d 999, 1007-08 (9th Cir. 2014) (explaining that
Rule 6(a)’s method of computation excludes the triggering date, “is known as the
anniversary method,” and “applies by default” unless the applicable statute dictates
a different method); Marcello, 212 F.3d at 1010 (“[B]ecause the anniversary date is
clear and predictable and therefore easier for litigants to remember, for lawyers to
put in their tickler files, and for courts to administer, we adopt the anniversary 35
rule.”); Hurst, 322 F.3d at 1260 (adopting the anniversary method because the
AEDPA “statute of limitations is measured in years”); Day v. Morgenthau, 909 F.2d
75, 79 (2d Cir. 1990), as amended on reh’g (Aug. 29, 1990) (action under § 1983
for deprivation of civil rights was time-barred because “when the applicable
limitations period is measured in years, . . . the anniversary date of the date of accrual
is the last day for instituting action” (internal quotation and alterations omitted));
Monkelis v. Mobay Chem., 827 F.2d 937, 938 (3d Cir. 1987) (because limitations
period expired on the six-year anniversary date, ERISA action was time-barred);
United States v. Inn Foods, Inc., 383 F.3d 1319, 1322-23 (Fed. Cir. 2004) (adopting
the reasoning in Marcello).
Similarly, the majority of state courts, in applying their respective rules for
computing limitations periods, have adopted the anniversary method for periods
measured in years. See, e.g., Tesseo v. Brown, 712 A.2d 1059, 1060-61 (Me. 1998);
State ex rel. Quinn v. Johnson, 868 P.2d 555, 556-59 (Kan. Ct. App. 1994); Shalabi
v. City of Fontana, 35 Cal. App. 5th 639, 643-44 (Cal. 2019), aff’d, 489 P.3d 714
(Cal. 2021); Williams v. Crop Prod. Servs., Inc., 361 P.3d 1075, 1078-79 (Colo. 36
App. 2015); Kowalski v. Hereford L’Oasis, 79 P.3d 319, 321 (Or. Ct. App. 2003);
State v. Smith, 834 N.W.2d 799, 801-02 (Neb. 2013). 10
We hold that the anniversary method, which does not count the day of the
triggering event in the limitations period, is more compatible with Super. Ct. Civ.
R. 6(a) and adopt this method over the calendar method. See Marcello, 212 F.3d at
1009 (noting that Fed. R. Civ. P. 6(a) is the basis for the anniversary method).
Furthermore, the anniversary method is simple and predictable, aligns with how we
ordinarily track the passage of time, and provides a clear deadline for initiating legal
action. See Patterson v. Stewart, 251 F.3d 1243, 1246-47 (9th Cir. 2001) (“[T]he
‘anniversary method’ . . . has the advantage of being easier for petitioners, their
attorneys and the courts to remember and apply.”); Williams, 361 P.3d at 1078 (“This
simple method of computation eliminates uncertainty caused by not knowing which
days to count and which to leave out of the computation, and how to calculate
10 Some state courts have determined that the anniversary method was proper in part because the applicable statute defined “year” as a “calendar year” and “preclude[d] a method of computation of years that would require counting of days.” See, e.g., Williams, 361 P.3d at 1077-78; Tesseo, 712 A.2d at 1060-61. These cases interpret a “calendar year” as a twelve-month period beginning and ending on the anniversary date. See Williams, 361 P.3d at 1077-78; Tesseo, 712 A.2d at 1060-61; E.L. Strobin, What 12-Month Period Constitutes “Year ” or “Calendar Year” As Used in Public Enactment, Contract, or Other Written Instrument, 5 A.L.R.3d 584, § 5 (1966) (citing cases “constru[ing] the term ‘year’ or ‘calendar year’ to mean a period of 12 months commencing at a fixed or designated month which terminated with the day of the corresponding month in the next succeeding year thereafter”). 37
limitations periods that include ‘leap years’ containing 366 days.”). Thus, when a
limitations period is governed by years, we need only track the anniversary of the
triggering event. Applying the anniversary rule here, the limitations period expired
on Saturday, May 7, 2022, and under Rule 6(a), Mr. Tovar had until Monday, May
9, 2022, to file his complaint. Because he filed on that day, his complaint was timely.
D. Proximate Cause
As an additional basis to affirm dismissal of the complaint, Regan argues that
the complaint fails to sufficiently plead that Regan’s error proximately caused
Mr. Tovar any harm. Regan contends that it is speculative to suggest that presenting
evidence of Mr. Tovar’s future medical expenses would have yielded Mr. Tovar a
larger award than the nearly $3.8 million he received. We disagree.
A legal malpractice complaint may be dismissed for failure to state a claim if
it “does not allege sufficient facts showing causation or resulting non-speculative
harm from [an attorney’s] breach of its professional duty.” Pietrangelo v. Wilmer
Cutler Pickering Hale & Dorr, LLP, 68 A.3d 697, 713 (D.C. 2013). This court has
“declined to find proximate cause where we would have to speculate about a legal
result.” Id. at 710 (affirming dismissal where plaintiff alleged that but for law firm’s
filing of a brief in the United States Supreme Court for other parties that opposed
plaintiff’s writ of certiorari, “the Supreme Court would have granted certiorari, 38
found in his favor on the merits, and remanded the case to the federal district court,”
leading to his reinstatement into the military).
But, although litigation outcomes inherently involve some degree of
uncertainty, we think that Mr. Tovar’s complaint does not require the same layers of
“compound speculation,” id., as in Pietrangelo. Mr. Tovar’s allegations specify how
Regan’s alleged shortcoming affected his trial outcome. He claims that at least one
doctor believed that Mr. Tovar required lifelong care because of his TBI, that he
suffers ongoing and worsening TBI symptoms, and that had Regan presented this
evidence, he would have received compensation for a lifetime of care expenses.
Because Mr. Tovar’s complaint sufficiently pleads that he would have “fared better”
had specific evidence of extensive future care needs been adduced at trial, Chase v.
Gilbert, 499 A.2d 1211, 1212 (D.C. 1985), we conclude that Mr. Tovar has
sufficiently pleaded—without expressing any view on the merits of the question—
that Regan’s error was the proximate cause of his injury.
III. Conclusion
For all of the foregoing reasons, we vacate the trial court’s order and remand
for further proceedings consistent with this opinion.
So ordered.