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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 11, 2004 Decided June 25, 2004

No. 03-7092

BOW G. JUNG,

APPELLANT

v.

MUNDY, HOLT & MANCE, P.C. AND

REGINALD L. HOLT,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 02cv01421)

John S. Lopatto III argued the cause and filed the briefs

for appellant.

Reginald L. Holt argued the cause and filed the brief for

appellees.

 Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.
2

Before: GINSBURG, Chief Judge, and SENTELLE and ROBERTS,

Circuit Judges.

Opinion for the Court filed by Circuit Judge ROBERTS.

ROBERTS, Circuit Judge: In this legal malpractice action,

the appellant sued attorneys for litigating against him

throughout a multi-faceted probate dispute, causing him to

incur legal fees. According to the appellant, the attorneys

had a duty not to act adverse to his interests, and their

litigation constituted a conflict of interest. The district court

granted summary judgment for the attorneys, because the

appellant — after learning of the conflict of interest — waited

beyond the three-year limitations period for malpractice actions before filing suit.

We reverse. The litigation brought by the attorneys, if

wrongful as alleged, constituted a continuing tort. Under

District of Columbia law, the appellant may pursue claims

‘‘for injuries attributable to the part of the continuing tort

that was committed within the limitations period immediately

preceding the date on which suit [was] brought.’’ Beard v.

Edmondson & Gallagher, 790 A.2d 541, 548 (D.C. 2002).

I. Background

The roots of this real-life Bleak House saga doubtless

stretch further back in time, but the precipitating event was

the death of Lew Gin Gee Jung (Mother Jung) in January

1995. Mother Jung was survived by five children: three

daughters, Fay Lee, Yok Jung (Yok), and May Jung (May);

and two sons, Bow Jung (Bow) and Wee Jung (Wee). After

her death, myriad disputes between Bow, May, Yok, and Wee

(Fay Lee did not arrive on the scene until later) plunged the

family into nine years of bitter litigation (so far) over the

estate and related matters.

This case, one of a half-dozen arising in the wake of Mother

Jung’s death, concerns Bow’s claims against appellees Reginald L. Holt and Mundy, Holt & Mance, P.C. (collectively

attorneys), who had been engaged by Mother Jung for estate

planning. Wendell Robinson — Mother Jung’s son-in-law
3

and May’s husband — worked for the Mundy, Holt & Mance

law firm as a law clerk. After meeting with Mother Jung on

more than one occasion, Robinson drafted multiple versions of

her will, culminating in a final draft that she was allegedly

supposed to sign at a meeting in the summer of 1994. In that

draft, Mother Jung described Bow as ‘‘my son,’’ appointed

him as an alternate Personal Representative, and named him

as a beneficiary. Final Draft of Will at 2, 4. The draft will

made no mention of May, Robinson’s wife. Mother Jung did

not sign the final draft of her will at the scheduled meeting,

because Robinson ‘‘left the correct draft of the Will at [his]

home.’’ Compl. ¶ 20. Mother Jung subsequently never

signed the will and died intestate.

Shortly after Mother Jung’s death, Bow, Wee, Yok, and

May allegedly agreed that they would all serve as co-Personal

Representatives and would sell Mother Jung’s home to Yok

below market price for $210,000. At some point, however,

the attorneys entered into an attorney-client relationship with

May. The attorneys prepared and in April 1995 filed a

Petition for Probate that named May as an heir and sought to

have her appointed the sole Personal Representative of the

estate, see Petition for Probate, Estate of Lew Gin Gee Jung,

despite the fact that the final draft of Mother Jung’s will

prepared by the same attorneys failed to name May as either

a beneficiary or a Personal Representative, see Final Draft of

Will at 2–5. The Probate Division of the Superior Court of

the District of Columbia appointed May as the sole Personal

Representative in May 1995, and the attorneys continued to

represent the estate and May in her capacity as Personal

Representative throughout the entirety of the probate proceedings.

Bow withdrew from the agreement among the children

upon learning that May had filed the Petition for Probate,

triggering several rounds of litigation over the sale of the

house in the Probate Division beginning in June 1995.

Throughout that litigation, the attorneys pursued ‘‘a campaign of pleadings to the Probate DivisionTTTcharging plaintiff Bow Jung with fraud for repudiating the oral agreement.’’

Compl. ¶ 43(a). In January 1997, the Probate Division ruled
4

that the oral agreement was not enforceable and that the

home could not be sold for less than the market value of

$400,000; the District of Columbia Court of Appeals subsequently affirmed that decision. In re Jung, 791 A.2d 920

(D.C. 2000) (unpublished table decision). The attorneys then

allegedly used estate funds to hire a non-party attorney to file

a motion on behalf of the estate, accusing Bow of committing

fraud upon the estate and seeking to recover compensatory

damages, attorneys’ fees, and costs incurred during the dispute over the house. Compl. ¶ 45. The Court of Appeals

summarily rejected that motion in November 2001. Id.

In August 1995, May challenged her brother’s heirship by

filing a Complaint to Determine Heirship, requiring Bow to

produce a birth certificate to prove that he was a natural born

son of Mother Jung. Born in rural China in 1933, Bow could

not produce a ‘‘Western style’’ birth certificate issued contemporaneously with his birth, but instead produced immigration

papers and other records indicating that he was the son of

Mother Jung. See id. ¶¶ 38, 39. Four years of litigation

ensued; May in her capacity as Personal Representative

would not accept Bow’s proffered documentation as proof of

his heirship and refused to distribute any portion of his

intestate share of the estate. That dispute finally ended on

December 16, 1999, when the Probate Division declared him

an heir after DNA testing proved he was the natural son of

Mother Jung. Id. ¶¶ 39, 41.1

Bow became aware of the attorneys’ relationship with

Mother Jung in December 1997, when Robinson testified

during a deposition about the work he had done for Mother

Jung, including the preparation of the draft will that was to

have been signed in the summer of 1994. Robinson Dep. at

223, 234. Bow’s counsel requested that the attorneys produce

1 Even Dickens would have been impressed by the modern

twist in this chapter of the Jung family’s Bleak House: the Probate

Division ordered the exhumation of Mother Jung’s body for DNA

testing to settle the heirship dispute.
5

a copy of that draft will, and they complied on January 13,

1998.

On July 16, 2002, Bow brought this legal malpractice suit

against the attorneys, based on his asserted status as an

intended beneficiary in Mother Jung’s draft will. He claimed

that the attorneys committed malpractice in negligently failing to assist Mother Jung in executing a will that carried out

her testamentary intent and that their employee, Robinson,

‘‘wrongly delayed and impeded Mother Jung [from] signing

the final draft of [her] Will.’’ Compl. ¶ 20.

Bow also claimed that the attorneys committed legal malpractice by allowing a conflict of interest to arise from their

legal representation of both Mother Jung and May. The

conflict allegedly arose because the draft will that the attorneys had prepared for Mother Jung excluded May as a

beneficiary and Personal Representative. Bow charged that

by later representing May in her capacity as Personal Representative and probating the estate that included May’s intestate share, the attorneys ‘‘negligently abandoned their original client’s intent and interest, and negligently permitted

their conflict of interest to run unchecked and continuous[ly]

from April 27, 1995 to the present.’’ Id. ¶ 59. He asserted

that the attorneys’ allegedly tainted representation of May

damaged him by compelling him to incur legal fees fending

off the challenge to his heirship and the charge that he had

committed fraud on the estate, and generally defending his

interests during the probate of the estate with May as

Personal Representative.

The attorneys filed a motion to dismiss or for summary

judgment, arguing that: (1) Bow was not entitled to bring the

suit because he was not a party to the contract for legal

services to represent Mother Jung in drafting her will; (2)

Bow’s claims were barred by the statute of limitations; and

(3) Bow impermissibly split claims between the present suit

and an action he filed in Superior Court against Robinson.

The district court found that Bow was an intended beneficiary

based on his inclusion in the draft will, which gave him

standing to bring a malpractice claim against the attorneys.
6

Jung v. Mundy, Holt & Mance, et al., No. 02–1421, Mem. op.

at 7–8 (D.D.C. June 17, 2003). The district court held,

however, that all of Bow’s claims in the July 16, 2002 complaint were barred by the District of Columbia’s three-year

statute of limitations for legal malpractice, finding that Bow

‘‘was on inquiry notice of the existence of a cause of action

against Defendants’’ by January 1998, when he received a

copy of the draft will. Id. at 11. The district court accordingly granted the attorneys’ motion for summary judgment.

II. Analysis

We review de novo whether Bow’s claims are barred by the

statute of limitations. See, e.g., Hall v. Clinton, 285 F.3d 74,

81 (D.C. Cir. 2002). At oral argument, Bow’s counsel waived

consideration of the claims pertaining to the attorneys’ conduct in preparing Mother Jung’s will. Oral Arg. at 4:56–5:25.

We accordingly consider only whether the statute of limitations bars Bow’s legal malpractice claim based on the alleged

conflict of interest.

The district court found that the statute of limitations for

Bow’s legal malpractice claims began to run in January 1998

when he received a copy of the draft will prepared by

Robinson. An action for legal malpractice must be filed

within three years ‘‘from the time the right to maintain the

action accrues.’’ D.C. CODE § 12–301(8). ‘‘The statute of

limitations for a legal malpractice claim is governed by the

discovery rule in cases where the relationship between the

fact of injury and some tortious conduct is obscure at the time

of injury.’’ R.D.H. Communications, Ltd. v. Winston, 700

A.2d 766, 768 (D.C. 1997) (quotation omitted). Under this

rule, a cause of action accrues when a plaintiff knew or should

have known through the exercise of reasonable diligence of:

‘‘(1) the existence of the injury, (2) its cause in fact, and (3)

some evidence of wrongdoing.’’ Knight v. Furlow, 553 A.2d

1232, 1234 (D.C. 1989).

Under Bow’s conflict of interest theory, he began sustaining injury when the attorneys commenced their representa-
7

tion of May and took action that forced him to incur legal fees

to defend his interests. Under the discovery rule, however,

the three-year limitations period did not begin running until

Bow received a copy of the draft will in January 1998. The

receipt of the draft will provided Bow with all the information

necessary to initiate legal action for conflict of interest:

Mother Jung excluded May, but named him as a beneficiary

and an alternate Personal Representative. He thus discovered that the attorneys’ subsequent representation of May ran

counter to his interest as an intended beneficiary under the

draft will. The district court thus properly determined that

Bow’s cause of action accrued in January 1998 because ‘‘Defendants’ representation of May TTT as Personal Representative of the Estate represented a conflict of interest given

Mother Jung’s specific exclusion of May in the draft Will.’’

Mem. op. at 12.

Bow filed suit more than three years after January 1998,

but that is not the end of the matter. He argues that the

litigation against him, tainted by the conflict of interest, was a

continuing tort, and that therefore the three-year limitations

period did not begin to run until the litigation ended, making

his July 16, 2002 complaint timely. Alternatively, Bow contends that at the very least he may recover for injuries

caused by the attorneys during the three-year period prior to

the filing of the complaint.

This court has recognized that the prosecution of a lawsuit

‘‘can constitute a continuing tort’’ under District of Columbia

law:

[A] lawsuit is a continuous, not an isolated event, because

its effects persist from the initial filing to the final

disposition. TTT A defendant subject to a lawsuit is

likely to suffer damage not so much from the initial

complaint but from the cumulative costs of defense and

the reputational harm caused by an unresolved claim.

Whelan v. Abell, 953 F.2d 663, 673 (D.C. Cir. 1992). The

statute of limitations period for continuing torts begins to run

once a plaintiff has inquiry notice of a potential cause of

action. See Hendel v. World Plan Executive Council, 705
8

A.2d 656, 667 (D.C. 1997). As the District of Columbia Court

of Appeals recently explained, ‘‘[w]hen the plaintiff is or

should be aware that he or she is being injured by a continuing tort, the statute of limitations begins to run.’’ Beard, 790

A.2d at 548. For Bow, that date was January 13, 1998. Bow

is thus incorrect that the continuing nature of the litigation

against him allowed him to sit on claims he knew or should

have known of until the litigation ended.

But in the case of a continuing tort, filing after the limitations period has run does not mean that there can be no

recovery. Instead, ‘‘[t]he plaintiff then may recover only for

injuries attributable to the part of the continuing tort that

was committed within the limitations period immediately preceding the date on which suit is brought.’’ Id.; accord John

McShain, Inc. v. L’Enfant Plaza Props., Inc., 402 A.2d 1222,

1231 n.20 (D.C. 1979) (‘‘If TTT the continuing tort is of the

type that causes a series of separate or recurrent injuries,

then only those damages stemming from conduct occurring

within the limitations period are recoverable.’’) (quoted in

Beard, 790 A.2d at 548). A contrary rule, barring any

recovery for a continuing tort when the victim did not sue

within the limitations period after discovery, would have the

perverse result of conferring on the tortfeasor the right to

continue the tortious conduct and harm the victim anew. Cf.

Page v. United States, 729 F.2d 818, 822 n.25 (D.C. Cir. 1984).

The district court was correct that Bow filed the July 16,

2002 complaint after the limitations period had run on his

tortious litigation claim, because he was on inquiry notice of a

potential claim as of January 1998. The district court erred,

however, by not applying the rule in Beard to that claim

based on the continuing nature of the alleged tort. Bow

raised the Beard rule before the district court. See Pl.’s

Opposing P. & A. to Defs.’ Mot. to Dismiss and Alt. Mot. for

Summ. J. (Sept. 11, 2002), at 9 (‘‘Beard held that even if the

plaintiff is aware of the continuing tort, his injuries attributable to the continuing tort committed within the limitations

period immediately preceding the complaint are recoverable.’’). According to Bow’s pleadings, several aspects of the

attorneys’ adverse litigation continued into the three-year
9

statutory period prior to the filing of his complaint: (1) the

heirship dispute, which did not conclude until December 16,

1999; (2) litigation concerning the sale of the house, which

ended on June 6, 2000; and (3) the fraud motion before the

District of Columbia Court of Appeals, which was litigated

during 2001.

We therefore hold that Bow’s conflict of interest claim is

not completely barred by the statute of limitations. Bow may

pursue his claim for those damages sustained from the alleged tortious litigation after July 15, 1999 — the three years

preceding the complaint — through the present. Any damages Bow suffered as a result of the attorneys’ conduct prior

to July 16, 1999, are barred by the statute of limitations. See

L’Enfant Plaza E., Inc. v. John McShain, Inc., 359 A.2d 5, 7

(D.C. 1976) (when a plaintiff files suit after the limitations

period has run on a continuing tort, ‘‘recovery is limited to

damages resulting from the [tortious conduct] during ‘the

[three-year] statutory period preceding the filing of the

suit’ ’’) (quoting Underwater Storage, Inc. v. United States

Rubber Co., 371 F.2d 950, 953 (D.C. Cir. 1966); alteration in

McShain).

* * *

We reverse the district court’s grant of summary judgment

on the legal malpractice claim based on the alleged conflict of

interest, and remand to the district court to permit Bow to

pursue his claim with respect to the attorneys’ conduct and

any resulting damages within the three-year period prior to

the filing of his complaint.