Byrd v. Martin, Hopkins, Lemon and Carter, PC, Civ. A. No. 81-0559-R.

• Decision Date: 01 June 1983
• Docket Number: Civ. A. No. 81-0559-R.
• Citation: 564 F. Supp. 1425
• Parties: Dallas BYRD, Plaintiff, v. MARTIN, HOPKINS, LEMON AND CARTER, P.C., et al., Defendants.
• Court: U.S. District Court — Western District of Virginia

564 F. Supp. 1425

Dallas BYRD, Plaintiff, v. MARTIN, HOPKINS, LEMON AND CARTER, P.C., et al., Defendants.

Civ. A. No. 81-0559-R.

United States District Court, W.D. Virginia, Roanoke Division.

June 1, 1983.

Fergus B. Norton, Roanoke, Va., for plaintiff.

George W. Wooten, Wm. B. Poff, Woods, Rogers, Muse, Walker & Thornton, Roanoke, Va., for defendants.

MEMORANDUM OPINION

TURK, Chief Judge.

Dallas Byrd (Byrd) brought this action for legal malpractice against Martin, Hopkins, Lemon and Carter, P.C., (MHL & C), William L. Martin, Osterhoudt, Ferguson, Natt and Aheron, P.C., (OFN & A), Charles H. Osterhoudt, Michael S. Ferguson, Edward A. Natt and Michael J. Aheron. Jurisdiction vests in this court pursuant to 28 U.S.C. § 1332(a)(1). This action is now before the court on the defendants' motions for summary judgment. See Fed.R.Civ.P. 56.

Byrd's legal malpractice action arises out of the following facts. In 1972, Byrd owned land in Botetourt County, Virginia, on which he wished to construct a shopping center. In March 1972, he conveyed his intention to build a shopping center to the Botetourt County Board of Supervisors (Board). Specifically, by letter dated March 14, 1972, Byrd stated that he was "contemplating developing a shopping center.... Before leasing commitments can be made and actual construction begun it is imperative that this area be served with public sewer service. Therefore, I request you to consider serving this area with a public sewer system in the immediate future." (Byrd Dep.Ex. 3). The Board responded by passing a resolution on March 24, 1972, which stated that "this Board does hereby pledge its efforts and resources to provide this complex and the surrounding area with sewer service which service is further pledged to be available at the time of opening of the center." (Byrd Dep.Ex. 7).

Byrd next appeared before the Board on February 19, 1973, at which time he informed the Board that he was ready to begin constructing the shopping center but that he first needed reassurance from the Board that sewer service would be available to the project by March 1974. At that time, the Board reaffirmed its commitment of 1972 to provide sewer service to the shopping center by March 1974. Byrd was notified of the Board's decision by a letter dated February 22, 1973. (Byrd Supp. Dep.Ex. 13 and 13A). Byrd contends that the March 14, 1972 letter to the Board, and the Board's February 22, 1973 letter to him constituted a written contract obligating him to build a shopping center in return for Botetourt County providing sewer service to the site of the proposed shopping center.

Botetourt County subsequently began exploring various alternatives for providing sewer service to the area of the proposed shopping center. However, no sewer system was ever provided to the area, and Byrd did not start construction of the proposed shopping center. Byrd eventually defaulted on payments to a bank on various loans, and the bank sold the property in Botetourt County at public auction on July 28, 1978.

Byrd then retained MHL & C to sue the county for breach of contract. On February 28, 1979, MHL & C filed suit against the county in state court. But a nonsuit was taken on November 28, 1979. Byrd thereafter filed a notice of claim with the Board, as is required by Va.Code §§ 15.1-547 and -550. The Board disallowed Byrd's claim on December 17, 1979.

Due to a conflict of interest, MHL & C subsequently referred Byrd to OFN & A, whom Byrd contacted in January 1980 concerning his claim against the county. On March 7, 1980, OFN & A filed suit against the county for breach of contract. However, on August 15, 1980, this action was also nonsuited. Byrd then filed another claim with the Board on September 3, 1980. And on October 15, 1980, OFN & A filed a second lawsuit against the county for breach of contract. That action was dismissed by the state court on October 1, 1981. Byrd filed this action on December 28, 1981, alleging that these defendants were negligent in handling his breach of contract claim against the county.

On March 1, 1983, the OFN & A defendants filed a motion for summary judgment on the grounds that their alleged negligence could not have been the proximate cause of Byrd's damages in that the applicable limitations period had expired on his breach of contract claim prior to his retention of these defendants as his counsel. On March 30, 1983, the MHL & C defendants filed a motion for summary judgment on the grounds that (1) the limitations period for Byrd's legal malpractice claim had expired; (2) the limitations period for Byrd's breach of contract claim had expired prior to his retention of these defendants; and (3) these defendants' alleged negligence was not the proximate cause of Byrd's damages because the negligence of OFN & A was the superseding intervening cause of his alleged injury.

These motions came on for a hearing on April 6, 1983, and the court took them under advisement pending the submission of a brief in opposition by Byrd's counsel.

Thereafter, on May 20, 1983, the MHL & C defendants filed a supplemental motion for summary judgment on the grounds that their alleged negligence was not the proximate cause of Byrd's injury in that (1) there was never any contract between the Board and Byrd because there was no meeting of the minds or mutuality of obligation, and (2) even if there was a contract, such contract was ultra vires and thus unenforceable against the Board.

On May 25, 1983, Byrd's counsel filed a brief in opposition to MHL & C's first motion for summary judgment. On that same date, the court held a telephone conference call during which the parties gave argument in support of their respective positions, and the OFN & A defendants joined in MHL & C's supplemental motion for summary judgment. The court having considered the argument of counsel and the entire record, defendants' motions for summary judgment are now ready for disposition.

A motion for summary judgment should be granted only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The appropriate focus in this diversity action, of course, is whether the undisputed facts show that the defendants are entitled to judgment under the law of Virginia. See Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1937).

To recover against an attorney for negligence, a plaintiff must prove (1) the attorney's employment; (2) his neglect of a reasonable duty; and (3) that such negligence resulted in and was the proximate cause of the plaintiff's loss. Maryland Casualty Co. v. Price, 231 F. 397, 401 (4th Cir.1916). Proof that the attorney was negligent is itself insufficient. "The extent of the damages sustained by the complainant must be affirmatively shown; for the attorney is only liable for the actual injury his client has received...." Allied Productions, Inc. v. Duesterdick, 217 Va. 763, 764, 232 S.E.2d 774, 775 (1977).

Byrd alleges that the defendants negligently handled his breach of contract claim against Botetourt County and that OFN & A was negligent in failing to sue MHL & C for the latter's negligence in suing the county. Therefore, to recover against the defendants for negligence, Byrd must prove that they were negligent and that but for their negligence, he would have recovered damages against Botetourt County for breach of contract. And if the undisputed facts reveal that any of these elements of proof are absent, the defendants will be entitled to judgment as a matter of law.

The parties are in sharp dispute as to whether there was ever any contract formed between Byrd and the Board. The defendants argue that there was no meeting of the minds and that the essential terms of the alleged contract were so uncertain that they...