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Rahbar v. Law Office of Arquilla & Poe, PLC

United States District Court, E.D. Virginia, Alexandria Division

April 11, 2019

MICHELLE RAHBAR, a/k/a Michelle Clark, Plaintiff,
LAW OFFICE OF ARQUILLA & POE, PLC, et al., Defendants.



         In April 2013, Michelle Rahbar, who at the time was known as Michelle Clark ("plaintiff'), separated from her then-husband Andrew Clark ("Clark"), and the two began an acrimonious divorce process. Plaintiff engaged the Law Office of Arquilla & Associates, PLC (the "Law Office")[1] and its attorney Michael L. Poe ("Poe") to represent her in the divorce proceedings. Those proceedings culminated in a consent order and final divorce decree entered in July and December of 2015, respectively. In November 2018, plaintiff, acting pro se.[2] filed this civil action against the Law Office and Poe (together, "defendants"), alleging that in the course of those divorce proceedings, defendants committed legal malpractice and a host of other state-law torts.

         Before the Court is defendants' motion to dismiss the complaint for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Defendants' motion has been fully briefed[3] and is ripe for decision.[4] For the reasons stated below, the motion will be granted in part and denied in part.

         I. BACKGROUND

         A. Factual Background[5]

         Plaintiff and Clark were married in 2005. Defs.' Memo, in Supp. of Mot. to Dismiss ("Defs.' Memo.") Ex. B [Dkt. No. 10-2] 2. The following year, they had a son, M.F.C.[6] Id. The family lived together in a Falls Church, Virginia home of which Clark was the sole owner before the marriage. Plaintiff alleges that her husband gave her a one-half interest in that property in 2008 through a deed of gift. Compl. for Civil Case ("Compl.") Ex. II [Dkt. No. 1-2] 14-15. Although plaintiff occasionally took on part-time work, she mostly stayed at home and cared for their son, M.F.C. Compl. 3.

         The couple separated in April 2013. Defs.' Memo. Ex. A [Dkt. No. 10-1] 116. On September 22, 2014, plaintiff entered into a retainer agreement with the Law Office "to represent [her]... [in securing] a divorce and during the court proceedings that follow." Compl. Ex. I [Dkt. No. 1-1] art. 1. The retainer agreement provides that any dispute as to the "validity, interpretation, and execution" of the agreement would be governed by Virginia law. Id. art. 16.[7]

         A multiple-day trial to determine issues related to the couple's divorce was held beginning on July 8, 2015 before the Honorable Judge Fiore of the Circuit Court of Arlington County, Virginia. See Compl. 3. Several matters were at issue, the first involving custody of M.F.C. Custody and visitation issues had been hotly contested since at least January 2015, when Clark moved for an order to show cause based on his claim that plaintiff-who under the terms of an order pendente lite had primary physical custody of M.F.C.-was failing to deliver the child into his custody during agreed visitation hours. See Defs.' Memo. Ex. A [Dkt. No. 10-1] 79-80, 83-85. At a previous hearing on that motion, Clark had presented a video recording he claimed showed that plaintiff "was keeping [M.F.C] from his father." Compl. 9. Plaintiff argued that M.F.C. had engaged in "emotional outbursts and efforts to harm himself due to distress ahead of scheduled visitation times with his father. Although plaintiff had taken videos of those outbursts, she claims that Poe opted not to play those videos at the show cause hearing and that as a result, the court found her to be in violation of the pendente lite order and ordered her to undergo a psychiatric evaluation. See First Am. Pro Se Pl.'s Memo, in Opp'n to Defs.' Mot. to Dismiss ("Pl.'s Opp'n") Ex. 4 [Dkt. No. 25-4].

         The custody issue occupied most of the second day of the trial (July 9, 2015). Plaintiff gave extended testimony about her relationship with the couple's son, her views on Clark's relationship with the child, and developmental challenges the child was facing.[8] See Defs.' Memo. Ex. A [Dkt. No. 10-1] 5-102. The judge heard testimony from both parents and heard argument from the guardian ad litem, who recommended that primary physical custody be transitioned from plaintiff to Clark. See Id. at 111, 209; see also Id. at 218 ("[I]f the court were inclined to [address] custody ... right now, ... I would certainly have to say that Mr. Clark shows more stability."). After considering the parties' testimony, as well as the report prepared by the guardian ad litem and the mental health evaluation prepared by plaintiffs long-time psychiatrist, [9] the court ordered that Clark and plaintiff would have joint legal custody of M.F.C. but that Clark would have physical custody of the child, with plaintiff having only limited visitation rights. Id. at 222-30; see also Pl.'s Opp'n Ex. 5 [Dkt. No. 25-5] (setting out the final terms with respect to custody and visitation). The court gave several reasons for this ruling, including concerns with plaintiffs mental health, "ability to process information," and decisionmaking capacity; evidence suggesting that while under plaintiffs primary custody, M.F.C. had exhibited "a serious lack [of] social development and educational development"; and the court's impression that Clark was more "focused and ... determined for [M.F.C] to achieve a greater social functionality and ... [a] better educational achievement." Defs.' Memo. Ex. A [Dkt. No. 10-1] 222-30; see also Id. at 233 (discussing plaintiffs "mental health issues," including diagnoses of "major depression[, ] anxiety disorder and attention deficit disorder").

         The division of marital property, and in particular the couple's home, which was valued at approximately $950, 000, became a second hotly contested issue during the trial. See Compl. 7. The court heard testimony about how the home was financed, costs incurred over the years to improve the property, the couple's income levels, and the 2008 gift deed, which Poe claimed unambiguously manifested Clark's intent to transform the home into marital property under state-law precedent.[10] The court made a series of factual findings-for example, that Clark's income was $70, 000 and plaintiffs $20, 000, that the marital residence was Clark's sole property before the marriage, that Clark (or his family) was responsible for the down payment and several improvements made to the home, and that "[t]he gift deed of 2008 is unambiguous and shows the gift as of the date of that deed"-but deferred a final decision on equitable distribution until the next day. Defs.' Memo. Ex. A [Dkt. No. 10-1] 233-35. Specifically, the court gave Poe "an opportunity to review the Brandenburg calculations"[11] and dispute them the following day, if necessary. Id. at 234-35 ("If there's an objection to [the calculation], I'd like to know what it is. Otherwise you can just agree to what the No. is."). When Poe asked for a clarification with respect to the marital home, arguing that "the case law is pretty clear," the court responded, "I'll let you be heard on that tomorrow." Id. at 236; see also Id. at 238 ("So [tomorrow] I'll hear the parties on the issue of the division of the property, based upon the court's finding on the deed of gift. I'll also give the parties an opportunity to discuss the division of the marital home, considering the contributions that have been made prior to the marriage."). The court also urged the parties to see if they could resolve the issues on their own, stating that there was "no reason why [they] shouldn't be able" to "agree on that equity division." Id. at 240. The court then recessed for the day.

         Plaintiff alleges she spoke to Poe immediately after the court had recessed to inform him that in light of the court's custody ruling, Clark had graciously offered her the chance to spend the following day with M.F.C. even though it was his turn under the pendente lite order. She asked Poe whether "she had to be at Court the next day as she would be with the minor child." Compl. 4. Poe told her that her presence was unnecessary "given that there was no more testimony to be heard." Id. On that advice, plaintiff decided not to attend the third day of trial, believing that all that was left was for Poe to "argue the issue of the impact of the gift deed on the property division and terms of spousal support." Id.

         The next day (July 10, 2015), Poe and Clark's counsel, Ronald L. Hiss ("Hiss"), announced to the court that they had enjoyed "the most productive 15 minutes of th[e] entire two[-]year odyssey" of divorce proceedings the previous evening, Pl.'s Opp'n Ex. 13 [Dkt. No. 26-4] 3, informing the court that the parties had amicably resolved "[a]ll the numbers" and that "[t]here w[ould] be no legal argument on the part of either attorney, Id. Hiss and Poe presented to the court a draft consent order stating that Clark would buy out plaintiffs interest in the home for $95, 611.50-essentially 10% of its market value-with a $17, 500 down payment and monthly payments of approximately $1, 300 for five years thereafter. See Compl. Ex. IV [Dkt. No. 1-4] (initial consent order); Defs.' Memo. Ex. B [Dkt. No. 10-2] 7-8 (incorporating those terms into the final divorce decree). The agreement also resolved other outstanding issues related to the divorce: It called for plaintiff to receive 50% of Clark's retirement account in an estimated amount of $18, 000 and allowed her to keep a 2009 Honda CR-V that was titled in Clark's name. Clark and plaintiff would have six months to agree on a division of all marital furnishings and, in the event of disagreement, could "reopen this matter and by notice present the issues to the Court." Clark would be obligated to pay plaintiff $667 per month, for a period of ten years, in spousal support, and plaintiff would be obligated to pay Clark $412 per month in child support until M.F.C. no longer qualified.[12] See Defs.' Memo. Ex. B [Dkt. No. 10-2] 8-14.

         After the attorneys had announced the agreement, the court noticed that plaintiff was not in attendance and expressed concerns about her absence, asking Poe whether plaintiff was "aware of all of these terms"-to which Poe cryptically responded, "She gave me authority, yes." Pl.'s Opp'n Ex. 13 [Dkt. No. 26-4] 9. The court stated that although the parties were not strictly required to attend, he "hope[d] it's not the wrong signal." Id. at 10. Poe responded, "I don't believe it is, Your Honor." Id. Based on that representation, the court entered the consent order Hiss and Poe had prepared. Id.

         Plaintiff claims she was not aware of any agreement, had not authorized any settlement on those terms, and was surprised to learn from Clark that the matter had been settled. Two days after he had represented to the court that his client had consented to the terms in the consent order, Poe emailed plaintiff with "the financial details" of the settlement, stating that he had "tried to call [her] after court on [July 10, 2015] but wasn't able to reach [her]." Pl.'s Opp'n Ex. 6 [Dkt. No. 25-6]. Plaintiff responded that same day:

Mike, This is not acceptable to me and I believe [t]hat I am better off having the Judge decide!! I authorized you to try to get me more spousal support for a shorter time and how that came to this I do not understand. You say the guideline is $660 for spousal but we were asking for $2, 200 and you didn't think that was unlikely or unreasonable .... We have an Order that the house was to be sold[13] and my name is on the Gift Deed, what is going on! The market value was to be $950, 000. I was married for EIGHT YEARS and have my name on the title and you say that I am only entitled to 10% of the house! I am extremely upset. I gave up my job, no one disputes I supported my husband or raised my son! What did you argue were my non-monetary contributions? What about my husband's negative non-monetary contributions[;] he legally deserted us.[14] Even if you say that I am only entitled to 50% of the equity since my name was put on the title then it still does NOT come out to 10%.... I can't believe this!

Compl. Ex. IV [Dkt. No. 1-4]. The same day, she sent a similar email to Clark with a copy to Poe and the guardian ad litem:

My lawyer just sent me details on what he said was the agreement. I did not authorize or have knowledge of these terms. I only knew about the spousal support argument and was willing to take more money over a shorter time but I DO NOT approve the agreement and have let my attorney know the same. We were married for eight years and I stayed home with [M.F.C.] as a baby and my name is on the Gift Deed and you only think that I am entitled to 10% of the market value! I don't have words to describe how this makes me feel. Better Judge Fiore decide the division [because] it couldn't be WORSE for me!

Id.; see also Pl.'s Opp'n Ex. 14 [Dkt. No. 26-5] (additional emails between Poe and plaintiff).

         Plaintiff asked Poe to call chambers immediately and inform Judge Fiore "that there was no settlement." Compl. 5. He refused. Id. Plaintiff also protests that Poe failed to object to any of the provisions of the settlement agreement on the record and failed to assist her in noticing an appeal of the entry of the consent order, arguing that Poe's actions effectively deprived her of the chance to seek appellate review of any issues relating to spousal support or equitable distribution. See Id. at 6.

         Poe ultimately agreed to file a motion for reconsideration on plaintiffs behalf, and a hearing on that motion was held before Judge Fiore on September 11, 2015. Poe asked the court to reconsider the amount of child support owed, arguing that the court's prior finding that plaintiffs income was $20, 000 was unjustified in light of the evidence. Pl.'s Opp'n Ex. 6 [Dkt. No. 25-6]. He also argued that Clark's income should have been "at least $100, 000 per year" instead of the $70, 000 found by the court; that Clark should have been ordered to pay "at least $1, 500 per month" in spousal support given plaintiffs "dire" financial situation; and that the court should reconsider its findings "as to [Clark's] separate contributions made to the marital residence." Id. The court rejected each of those arguments. Id. Poe then yielded the podium to Plaintiff, who addressed the court on her own behalf:

MS. CLARK: . . . [W]hat I need to tell you, Your Honor, is that although I did agree to-I did want my lawyer to settle my case the best way he could, I was not made aware in advance of the buy out provisions or any of the specific terms....
So I would ask that, as I was not aware of any of these particular terms and did not agree to them ... and this has been my first opportunity before the court to tell the court this matter, I believe it should be addressed and I should not... be held to an agreement with terms I did not even know about until the weekend after everything was done.
THE COURT: All right. So what are you asking the court to do with regard to the marital home?
MS. CLARK: ... I'm asking Your Honor to consider me leaving my employment, and me being the primary care for my child for those years, as a significant non-monetary contribution.
And with regard to the marital house: I relied upon the marital house. I had given up my career. I had no retirement....
... It was supposed to be our house; I relied on that. Had I known that it was just going to be something that he would misinform the court about at trial, I'd-
THE COURT: All right. Well, the court needed to adjudicate the equitable distribution, which, of course, included the marital home. And the court considered all the necessary elements that were presented in the record. And I see no reason why the court's finding and order shall be altered at this time.
Are there any other issues to be addressed?
MS. CLARK: Well, yes. I didn't know the terms of the consent order.
THE COURT: I'm sorry, ma'am?
MS. CLARK: I didn't know the terms of the order.
THE COURT: Okay. Well the order was submitted to the court by your counsel.
All right. Any other issues, besides the marital residence, to address?
MS. CLARK: Well, yes. Because specifically, Your Honor, in the transcript you asked if the specific terms of the agreement had been made known to me. And they were not. So that was a relevant question.
THE COURT: All right. Okay, anything further?

Id. The court did not express any interest in exploring the issue further-when plaintiff attempted to speak toward the end of the hearing, Judge Fiore responded, "You may speak through your counsel," id-but vacated the existing consent decree after finding that Poe and Hiss disagreed about one of its terms, instructing the parties to submit a corrected version in one week. Id.; see Pl.'s Opp'n Ex. 7 [Dkt. No. 25-7] (finding that the decree prepared and submitted by Poe and Hiss had been "sufficiently questioned as to accuracy" so as to merit vacatur).

         Hiss and Poe made one change to the final divorce decree after the September 11 hearing, removing from the decree a statement that plaintiff had "agree[d]" to its spousal support provisions and substituting a note that "the fixed spousal support amount and duration [were reached] as a stipulation between counsel." Req. to Respond to Defs.' Br. in Supp. of Their Mot. to Dismiss Ex. II [Dkt. No. 28-2]. Although plaintiff continued to insist that the slate be wiped clean so that she could participate in the negotiations, Hiss sent a letter to Poe expressly stating that "there w[ould] be no renegotiating in this matter." Id. Ultimately, the final divorce decree entered by the court on December 1, 2015 contained the same provisions to which plaintiff had been objecting since July. See Defs.' Memo. Ex. B [Dkt. No. 10-2]. Nothing indicates that the court arrived at these terms through an independent analysis; rather, plaintiff alleges that the court believed it was issuing a decree that reflected the parties' (or at least the lawyers') amicable resolution of the issues.

         After the final divorce decree was entered, plaintiff hired a new attorney in hopes of suing Poe and the Law Office to recover damages stemming from the way Poe had handled the divorce proceedings. The attorney apparently advised plaintiff not to file suit and not to contact the state bar. Nonetheless, in March 2017, plaintiff submitted a formal complaint against Poe to the state bar. See Pl.'s Opp'n Ex. 8 [Dkt. No. 25-8]; see also id ...

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