Cox v. Geary

Decision Date13 January 2006
Docket NumberRecord No. 050333.
Citation624 S.E.2d 16
PartiesJeffery David COX v. Robert P. GEARY, et al.
CourtVirginia Supreme Court

Steven D. Benjamin, Richmond (Betty Layne DesPortes; Benjamin & DesPortes, on briefs), for appellant.

Robert A. Dybing; Douglas P. Rucker, Jr., Richmond; Henry S. Keuling-Stout, Big Stone Gap (Brian R. Pitney; Jeffrey H. Geiger, Richmond; Sands, Anderson, Marks & Miller; Thompson & McMullan, on briefs), for appellees.


KINSER, Justice.

The appellant, Jeffery David Cox, challenges the judgment of the circuit court dismissing, with prejudice, his legal malpractice claims against Robert P. Geary, John F. McGarvey, Michael Morchower, Lee W. Kilduff, and the law firm of Morchower, Luxton & Whaley (collectively the Attorneys).1 The circuit court held, among other things, that Cox suffered "one indivisible injury for which he had but one claim or cause of action." We agree and will affirm the circuit court's judgment.


In 1991, Cox was convicted in the Circuit Court of the City of Richmond of abduction, murder, and burglary. He was subsequently sentenced to a term of incarceration for life plus 50 years. At trial, Geary and McGarvey represented Cox as court-appointed counsel. After his convictions, Cox retained Morchower and Kilduff to represent him on appeal.

In 1997, Cox petitioned for a writ of habeas corpus.2 In an order dated November 14, 2001, the Circuit Court of the City of Richmond granted Cox habeas corpus relief.3 The next day, in the criminal case of Commonwealth v. Cox, the Commonwealth and Cox jointly moved to vacate the 1991 convictions and dismiss the underlying indictments. The Circuit Court of the City of Richmond granted the motion and entered an order vacating Cox's 1991 convictions, dismissing the indictments, and releasing Cox from custody. Id. At the time of his release, Cox had served approximately 11 years of his sentence.

In December 2001, Cox requested assistance from a member of the Senate of Virginia in procuring compensation from the Commonwealth for his wrongful incarceration. The General Assembly approved "An Act for the relief of Jeffery D. Cox" (the Act) on April 7, 2002. 2002 Va. Acts ch. 746. In relevant part, the Act stated:

Whereas, Jeffery D. Cox (Cox) was arrested on October 18, 1990 in the City of Richmond and charged with First Degree Murder, Abduction with Intent to Defile and Breaking and Entering; and

Whereas, on February 13, 1991, Cox was convicted of these charges and sentenced to life imprisonment plus fifty years; and


Whereas, new evidence was revealed which supported Cox's innocence of the crimes including confessions by other parties; and

Whereas, based on this new evidence, the Office of the Attorney General reached a settlement agreement with Cox resulting in the Richmond Circuit Court entering an order on November 14, 2001 vacating the convictions; and


Whereas at the time of his arrest, Cox was employed as an air conditioning repairman and was working towards obtaining his tradesman's certification as an electrician; and

Whereas, Cox has lost income and a promising career during his eleven years of incarceration; and

Whereas, Cox has also suffered severe physical, emotional and psychological damage as a result of this wrongful incarceration and has no other means to obtain adequate relief except by action of this body; now, therefore,

Be it enacted by the General Assembly of Virginia:

1. § 1. That there shall be paid for the relief of Jeffery D. Cox from the general fund of the state treasury, upon execution of a release of all claims he may have against the Commonwealth or any agency, instrumentality, officer, employee, or political subdivision in connection with the aforesaid occurrence, (i) the sum of $350,000 to be paid to Jeffery D. Cox on or before August 1, 2002 ... and (ii) an annuity for the primary benefit of Jeffery D. Cox ... in the cumulative amount of $400,000.

As required by the terms of the Act, Cox subsequently executed a document releasing

all claims [Cox] may have against the Commonwealth or any agency; instrumentality; officer; employee or political subdivision of the Commonwealth in connection with [his] arrest, conviction and incarceration during the time period 1990-2001, subsequently vacated by the Richmond Circuit Court, and more specifically described in the Virginia Acts of Assembly 2002.

Two years later, in November 2003, Cox filed the motion for judgment in the present case alleging that the Attorneys each "fail[ed] to comply with the applicable standard of care as... Cox's attorney" and breached their respective "contract of representation" with Cox. Cox sought damages from the Attorneys, jointly and severally, for

punishment; incarceration; personal injuries; pain and suffering; severe mental anguish; emotional distress; loss of income; humiliation, indignities and embarrassment; degradation; injury to reputation; permanent loss of natural psychological development; and restrictions on all forms of personal freedom including but not limited to diet, sleep, personal contact, educational opportunity, vocational opportunity, athletic opportunity, personal fulfillment, sexual activity, family relations, recreation, travel, enjoyment and expression.

The Attorneys countered with numerous defensive pleadings, motions, and special pleas. After hearing argument and considering the parties' memoranda on the various motions and other filings, the circuit court dismissed Cox's claims and the motion for judgment with prejudice. In its final order, the circuit court made the following rulings:

1. This Court has subject matter jurisdiction to entertain the claims asserted by the plaintiff in the Motion for Judgment by which he initiated this action (the "Motion for Judgment").

2. The plaintiff has standing to bring this action.

3. The claims asserted by the plaintiff in the Motion for Judgment are not time barred.

4. The claims asserted by the plaintiff in the Motion for Judgment are not barred by collateral estoppel.

5. The injuries suffered by the plaintiff from his incarceration referred to in the Motion for Judgment constitute one indivisible injury for which he had but one claim or cause of action.

6. The habeas relief granted to the plaintiff by this Court was based on newly discovered evidence.

7. An Act for the Relief of Jeffery D. Cox preempted any cause of action the plaintiff may otherwise have had for his incarceration, and there is no civil action that survives it.

8. The claims asserted by the plaintiff in the Motion for Judgment are barred and precluded by:

a. the doctrine of waiver;

b. the doctrine of estoppel; and

c. the plaintiff's election of remedies.

The circuit court also denied Cox's motion to reconsider. Cox appeals from the circuit court's judgment.


On appeal, Cox assigns error to the rulings of the circuit court adverse to him. One issue is dispositive—whether the circuit court erred in finding that the injuries suffered by Cox as a result of his wrongful incarceration constitute a single, indivisible injury for which he had one claim or cause of action.

It is a generally recognized principle that there can be only one recovery of damages for a single wrong or injury. Pennington v. Bluefield Orthopedics, P.C., 187 W.Va. 344, 419 S.E.2d 8, 13 (1992); see also McLaughlin v. Siegel, 166 Va. 374, 377, 185 S.E. 873, 874 (1936) ("the injured party is entitled to but one satisfaction for the same cause of action"). Cox, however, asserts that he had two separate injuries, one caused by the Commonwealth and its officers and employees (the Commonwealth) and the other caused by the Attorneys. He further contends that, for each injury, different types of relief would be available and that any determination about the basis of the General Assembly's compensation to Cox would be an exercise in speculation. We do not agree.

The injury for which Cox received compensation from the Commonwealth, through the Act, was his wrongful incarceration. The damages sustained as a result of that injury, as described in the Act, included loss of income and severe physical, emotional, and psychological distress. In the present legal malpractice action, the injury suffered by Cox as a result of the Attorneys' alleged "failure to exercise a reasonable degree of care, skill and diligence in their legal representation of ... Cox and by breaching their contracts of representation with him" was his wrongful incarceration. Moreover, the elements of damage Cox seeks in this action are the same as those for which he received compensation from the Commonwealth.

Cox does not argue that the type of injuries for which the General Assembly compensated him differs from the type of injuries he currently alleges. Nor does he seek in his motion for judgment punitive damages or attorneys' fees, both of which would have differed from his claim against the Commonwealth. In other words, Cox has made no attempt to differentiate between the injury or the damages caused by the negligence of the Commonwealth and the injury or damages suffered by Cox as a result of the Attorneys' alleged legal malpractice. See Dwyer v. Yurgaitis, 224 Va. 176, 180, 294 S.E.2d 792, 794 (1982) (because the plaintiff never distinguished between the injuries sustained in two collisions, she suffered an indivisible injury); Dickenson v. Tabb, 208 Va. 184, 192, 156 S.E.2d 795, 801 (1967) ("[a]s [the plaintiff's] injuries were not susceptible of apportionment ... [they] were indivisible"); see also Maroulis v. Elliott, 207 Va. 503, 511, 151 S.E.2d 339, 345 (1966) ("`[w]here separate and independent acts of negligence of two parties are the direct cause of a single injury to a third person and it is impossible to determine in what proportion each contributed to the injury, either or both are responsible for the whole...

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