Harrison v. Casto, 14730
| Decision Date | 18 November 1980 |
| Docket Number | No. 14730,14730 |
| Citation | 271 S.E.2d 774,165 W.Va. 787 |
| Court | West Virginia Supreme Court |
| Parties | Paul H. HARRISON v. Carroll W. CASTO. |
Syllabus by the Court
Unless a complaint in a malpractice action against an attorney sounds only in tort, such action may be brought on contract or in tort and the fact that the statute of limitations bars the tort action does not preclude an action on contract which is not barred by the applicable limitation statute.
Charles Hoadley Damron, Point Pleasant, Joseph P. Moschetta, Washington, Pa., for appellant.
Jenkins, Fenstermaker, Krieger, Kayes & Farrell, James D. Lamp and Norman K. Fenstermaker, Huntington, for appellee.
This is an appeal by Paul H. Harrison from an order of the Circuit Court of Mason County wherein that court granted the motion of Carroll W. Casto to dismiss Harrison's malpractice action against him.
Paul H. Harrison, plaintiff, filed a malpractice action against Carroll W. Casto, defendant, in the Circuit Court of Mason County. The plaintiff, a passenger on Piedmont Airlines (Piedmont Aviation, Inc.) allegedly suffered an injury while the plane was at the greater Cincinnati airport. He retained Don Kingery, a Mason County attorney, to prosecute his personal injury action against Piedmont. For reasons not germane to the instant action, no proper suit was instituted.
Upon learning that the action had not been filed within the applicable statutory period, the plaintiff hired the defendant to bring an action against Mr. Kingery for malpractice. The defendant did not file an action against Mr. Kingery but sought, unsuccessfully, to sue Piedmont. The plaintiff, believing that the defendant had permitted his claim against Kingery to be barred by the statute of limitations, employed a third attorney to prosecute the instant malpractice action. In the plaintiff's complaint the facts set forth are essentially as stated above, wherein it was charged "that the defendant, Carroll W. Casto, negligently failed to commence an action upon plaintiff's cause of action against Don C. Kingery within the applicable two-year statute of limitations and that, therefore, plaintiff's claim against Don C. Kingery was time-barred." A second count of the complaint charged "a breach of the contract of professional employment entered into between the plaintiff and the defendant."
The defendant answered the complaint, setting up eight defenses, the third of which is dispositive of this case. In that defense the defendant charged "that the plaintiff, Paul H. Harrison, has no cause of action ... against the said defendant since the cause of action against Don C. Kingery ... still can be brought ... in contract." Therein, he further alleged that Mr. Kingery had breached the contract into which he had entered with the plaintiff and that the applicable statute of limitations for an action on such breach was, under W.Va. Code, 1931, 55-2-6, ten years if the contract was in writing or five years if it were any other contract, express or implied. His position was that the action against Kingery was still available to the plaintiff for Kingery's failure to prosecute his suit against Piedmont, which failure constituted a breach of contract.
The defendant, Carroll W. Casto, moved the court for a dismissal of the complaint which motion, after due deliberation, was granted. We affirm.
The trial court premised its ruling upon our recent case of Family Savings & Loan, Inc. v. Ciccarello, 157 W.Va. 983, 207 S.E.2d 157 (1974). Family Savings instituted an action against the defendant to recover damages allegedly suffered by reason of defendant's negligence in certifying as good and marketable the titles to certain real property. We held that by reason of the language in the complaint, clearly relying on the negligence of the defendant, the action was brought in tort. This Court in analyzing the facts before determining what type of action was brought recognized that a malpractice action "could have been brought in contract" if the plaintiff had charged the defendant with breaching the obligations of his employment. The Court concluded that the complaint sounded in tort and that the statute of limitations governing tort actions was applicable.
That a malpractice action may sound in tort or in contract is clear. ...
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