Abadir v. Dellinger
| Decision Date | 02 May 2011 |
| Docket Number | No. 35593.,35593. |
| Court | West Virginia Supreme Court |
| Parties | Farouk ABADIR, Hosny Gabriel, Ricardo Ramos, Alfredo Rivas, Michael Vega and Huntington Anesthesiology Group, Inc., Plaintiffs Below, Appellantsv.Mark H. DELLINGER and Bowles Rice McDavid Graff & Love LLP, Defendants Below, Appellees. |
OPINION TEXT STARTS HERE
Syllabus by the Court
1. “Appellate review of a circuit court's order granting a motion to dismiss a complaint is de novo.” Syllabus Point 2, State ex rel. McGraw v. Scott Runyan Pontiac–Buick, Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995).
2. “Collateral estoppel is designed to foreclose relitigation of issues in a second suit which have actually been litigated in the earlier suit even though there may be a difference in the cause of action between the parties of the first and second suit. We have made this summary of the doctrine of collateral estoppel:
But where the causes of action are not the same, the parties being identical or in privity, the bar extends to only those matters which were actually litigated in the former proceeding, as distinguished from those matters that might or could have been litigated therein, and arises by way of estoppel rather than by way of strict res ajudicata. Lane v. Williams, 150 W.Va. 96, 100, 144 S.E.2d 234, 236 (1965).”
Syllabus Point 2, Conley v. Spillers, 171 W.Va. 584, 301 S.E.2d 216 (1983).
3. “Whether a stranger to the first action can assert collateral estoppel in the second action depends on several general inquiries: Whether the issues presented in the present case are the same as presented in the earlier case; whether the controlling facts or legal principles have changed substantially since the earlier case; and, whether there are special circumstances that would warrant the conclusion that enforcement of the judgment would be unfair.” Syllabus Point 6, Conley v. Spillers, 171 W.Va. 584, 301 S.E.2d 216 (1983).
4. “Collateral estoppel will bar a claim if four conditions are met: (1) The issue previously decided is identical to the one presented in the action in question; (2) there is a final adjudication on the merits of the prior action; (3) the party against whom the doctrine is invoked was a party or in privity with a party to a prior action; and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action.” Syllabus Point 1, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).
William D. Levine, Esq., St. Clair & Levine, Huntington, WV, for Appellants.David D. Johnson, III, Esq., Winter Johnson & Hill PLLC, Charleston, WV, for Appellees.
This case comes before us on appeal for essentially a third time.1 The current appeal is by the plaintiffs below, Farouk Abadir, Hosny Gabriel, Ricardo Ramos, Alfredo Rivas, Michael Vega and Huntington Anesthesia Group, Inc. (“Appellants”) from a November 19, 2009, order of the Circuit Court of Cabell County granting a motion to dismiss filed by the defendants below, Mark Dellinger and the law firm of Bowles Rice McDavid Graff & Love LLP (“Appellees”). Following this Court's decision in Messer II, the Appellants commenced this action because, according to their Complaint, the case in which they had been defendants was settled by Mr. Dellinger, their attorney, without their consent. The circuit court dismissed the case concluding that since it had been determined by this Court that Mr. Dellinger had the apparent authority to settle, the doctrine of collateral estoppel precluded the Appellants from challenging what Mr. Dellinger had done. Herein, Appellants allege that the circuit court erred in granting Appellees' motion to dismiss because it failed to distinguish between the actual authority of an attorney, which pertains to the relationship between the attorney and the client, and the apparent authority of an attorney to act for the client, which relates to the dealings between the attorney and a third party. Having thoroughly considered the record, briefs, arguments of the parties, and the pertinent authorities, we find that the circuit court erred in granting Appellees' motion to dismiss. For the reasons stated more thoroughly below, we reverse the November 19, 2009, order of the Circuit Court of Cabell County and remand this matter with directions.
A full recitation of the facts of the underlying actions were set forth in Messer I and Messer II. Accordingly, we will only recite those facts necessary to provide a context for the matters in the instant appeal.
In Messer II, plaintiff Messer maintained that the lower court erred by refusing to enforce the settlement agreement on the grounds that Mr. Dellinger lacked the authority to bind the defendant physicians. 222 W.Va. at 418, 664 S.E.2d at 759. Conversely, the defendant physicians maintained that there was no enforceable settlement agreement because there was no meeting of the minds, and Mr. Dellinger had never been authorized to settle because all of the defendant doctors had not approved the settlement agreement. Id.
In determining whether an enforceable settlement agreement existed, this Court determined that the pivotal issue to be decided was whether, in the absence of express authority, Mr. Dellinger had the apparent authority to obligate the doctors and HAGI to the terms of the settlement agreement. Id. We recognized that “[w]hen an attorney appears in court representing clients there is a strong presumption of his authority to represent such clients, and the burden is upon the party denying the authority to clearly show the want of authority.” Syl. Pt. 5, Dwight v. Hazlett, 107 W.Va. 192, 147 S.E. 877 (1929). We concluded that the “facts simply [did] not establish the clear showing necessary to overcome the presumption of Mr. Dellinger's apparent authority to bind his clients to the settlement agreement.” Messer, 222 W.Va. at 420, 664 S.E.2d at 761. Accordingly, we found that it was error for the lower court to deny Messer's motion to enforce the settlement agreement. Id.
Following this Court's opinion in Messer II decided June 26, 2008, Appellant doctors filed the instant action against their lawyer, Mr. Dellinger, on November 19, 2008, alleging the following:
16. None of the Plaintiffs hereto authorized Mr. Dellinger to settle on their behalf nor had any of them authorized Dr. Ramos to be their spokesman.
17. Notwithstanding the absence of any authority from the individuals whom he was representing in the Messer suit, Mr. Dellinger advised the attorney for Ms. Messer that all defendants had agreed to settle.
18. After he learned of this misrepresentation, Hosny Gabriel, advised Mr. Dellinger that there was no agreement among all defendants and that no settlement had been authorized.
19. After hearing the evidence, the Circuit Court of Cabell County determined that Mr. Dellinger had not been authorized by his clients to settle the case. Thereafter, the Circuit Court dismissed Ms. Messer's case. The Supreme Court reversed the Circuit Court decision on the settlement ruling that an attorney who had appeared in court representing all defendants, was presumed to have had the authority to settle a case.
20. In conformity with the decision of the Supreme Court, the Circuit Court entered a judgment against all of the defendants in the Messer matter for the settlement amount, for interest subsequent to the date of settlement, and for attorney fees and costs.
21. Had Mr. Dellinger not settled the case, none of the defendants, and more specifically the Plaintiffs hereto, would have incurred any liability. This was because the Circuit Court dismissed Ms. Messer's case.
22. As a consequence of the wrongful settlement by Mr. Dellinger, Farouk Abadir, Hosney Gabriel, Ricardo Ramos, Alfredo Rivas, Michael Vega and HAGI were damaged.
23. Mr. Dellinger's conduct in failing to communicate with the Plaintiffs hereto, for failing to explain the terms of the proposed settlement to each of them, for continuing to represent all after a conflict among some had arisen, in failing to confirm that each had agreed to settle, in failing to confirm that each understood and had agreed to assume the responsibility for the terms of the settlement as may have been agreed upon among them and for settling the case thereby causing the Plaintiffs to incur a liability for something that they had not agreed to assume constitutes professional negligence, legal malpractice, misfeasance, a breach of his fiduciary obligation to his clients, and a breach of contract to provide proper representation.
24. But for the professional misconduct and the legal malpractice by Mr. Dellinger, for which, as his employer, the law firm of Bowles, Rice, McDavid, Graff & Love is liable since all activities of Mr. Dellinger were undertaken as an employee thereof, Plaintiffs hereto would have incurred no liability to Ms. Messer and would not have had a judgment entered against them.
25. Mr. Dellinger and Bowles, Rice, McDavid Graff & Love are liable to the Plaintiffs hereto for the amount of damages which they incurred which is the amount of money which each paid to Theresa Messer and/or her attorney.
. . . . .
On December 12, 2008, Mr. Dellinger and his law firm responded to the Complaint by filing a Motion to Dismiss under Rule 12(b)(6) of the West Virginia Rules of Civil Procedure, asserting that Appellants were collaterally estopped from pursuing the claims against Mr. Dellinger due to the holdings by this Court in Messer II. Specifically, Appellees asserted that in Messer II, this Court evaluated the facts in the record and concluded that when “[v]iewed as a whole, the statements and conduct of the doctors form clear supportive evidence that Mr. Dellinger's reliance on Dr. Ramos' representations was reasonable under the circumstances.” Based upon this language, Appellees maintained that this Court essentially found that Mr....
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