Humphries v. Detch, No. 35649.

• Court: Supreme Court of West Virginia
• Writing for the Court: WORKMAN, Chief Justice:
• Citation: 712 S.E.2d 795,227 W.Va. 627
• Decision Date: 22 June 2011
• Docket Number: No. 35649.
• Parties: Carroll Eugene HUMPHRIES, Plaintiff Below, Appellantv.Paul S. DETCH, Defendant Below, Appellee.

227 W.Va. 627
712 S.E.2d 795

Carroll Eugene HUMPHRIES, Plaintiff Below, Appellant
v.
Paul S. DETCH, Defendant Below, Appellee.

No. 35649.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 9, 2011.Decided June 22, 2011.

[712 S.E.2d 796]

Syllabus by the Court

1. “Generally, in a suit against an attorney for negligence, the plaintiff must prove three things in order to recover: (1) the attorney's employment; (2) his/her neglect of a reasonable duty; and (3) that such negligence resulted in and was the proximate cause of loss to the plaintiff.” Syl. Pt. 1, Calvert v. Scharf, 217 W.Va. 684, 619 S.E.2d 197 (2005).

2. To state a cause of action for legal malpractice arising from the negligent representation of a defendant in a criminal proceeding, a plaintiff must establish that he is actually innocent of the underlying criminal offense for which he was originally convicted and/or any lesser included offenses involving the same conduct by a preponderance of the evidence. There is no cause of action as long as the determination of the plaintiff's guilt of that offense remains undisturbed.

3. When a plaintiff brings a legal malpractice action against his criminal defense attorney arising out of the plaintiff's conviction in which the plaintiff subsequently was awarded a new criminal trial and the plaintiff thereafter pleads nolo contendere rather than being retried, West Virginia Rule of Evidence 410 does not prohibit the conviction

[712 S.E.2d 797]

and sentence that results from the nolo contendere plea from being admitted as evidence in the legal malpractice action to prove that the plaintiff was convicted of the crime that was the subject of the nolo contendere plea.

William C. Forbes, Esq., W. Jesse Forbes, Esq., Forbes Law Offices, PLLC, Charleston, WV, for Appellant.Stephen R. Crislip, Esq., Ben M. McFarland, Esq., Jackson Kelly PLLC, Charleston, WV, for Appellee.

WORKMAN, Chief Justice:

This matter is before the Court upon an appeal taken by the Appellant Carroll Eugene Humphries from an Order entered December 18, 2009, by the Circuit Court of Putnam County, West Virginia, granting the Appellee Paul S. Detch's motion to dismiss pursuant to West Virginia Rule of Civil Procedure 12(b)(6). The Appellant argues that the circuit court erred: 1) in dismissing the action by determining that the Appellant must establish the additional element of actual innocence in a legal malpractice action against a criminal defense attorney; 2) in dismissing the action by determining that the Appellant's own criminal conduct, not his defense attorney's alleged negligence, was the proximate cause of the Appellant's damages; 3) in dismissing the action by determining that the Appellant's nolo contendere plea barred the Appellant from establishing actual innocence; 4) in allowing a nolo contendere plea to affect the circuit court's decision in violation of West Virginia Rule of Evidence 410; 5) in dismissing the action under collateral estoppel when a plaintiff does not need to prove innocence in order to succeed in a legal malpractice action against a criminal defense attorney, or even if a plaintiff needs to present proof of such element, a nolo contendere plea in a criminal matter should not be the subject of collateral estoppel and prevent proof of innocence in a civil action; and 6) in reversing an earlier decision made in open court by a different circuit court judge, who would have denied the Appellee's motion to dismiss.

Based upon the Court's review of the parties' briefs and argument, the record, and all other matters submitted before the Court, the decision of the circuit court is affirmed.

I. Facts and Procedural History

In 1999, the Appellant was convicted of being an accessory before the fact to first degree murder and conspiracy to commit murder in connection with the 1976 murder of Billy Ray Abshire. The Appellant was sentenced to one to five years in prison for the conspiracy to commit murder conviction and life in prison with a possibility of parole after ten years for the accessory before the fact to commit murder conviction.

The Appellant appealed his conviction to this Court, but his petition was refused on October 3, 2000. Thereafter, the Appellant, pro se, filed a petition for a writ of habeas corpus in the Circuit Court of Greenbrier County, West Virginia, which was summarily denied.¹ The Appellant then retained counsel, who filed an amended petition for writ of habeas corpus, which was again denied after an omnibus hearing was held by the circuit court. One of the several issues raised in the amended habeas corpus petition was ineffective assistance of counsel.

On March 28, 2001, the Appellant filed an appeal of his denial of his petition for writ of habeas corpus with the Supreme Court, claiming the circuit court had erred in denying him habeas corpus relief, because he suffered ineffective assistance of counsel in the underlying criminal case. This Court granted the Appellant's habeas petition. On April 23, 2007, this Court reversed the circuit court's decision and remanded the matter for a new criminal trial. See State ex rel. Humphries v. McBride, 220 W.Va. 362, 647 S.E.2d 798 (2007).

Upon remand, charges were again brought against the Appellant; however, rather than opting for a new trial, the Appellant voluntarily pleaded nolo contendere to the crime of accessory before the fact to murder in the

[712 S.E.2d 798]

second degree.² On July 23, 2007, when the circuit court accepted the plea, it advised the Appellant that by entering the plea agreement he would be incriminating himself as being an accessory before fact. Thus, the circuit court adjudged the Appellant guilty of the crime and sentenced him to an indeterminate term of five to eighteen years in prison. After receiving credit for time served for the 1999 conviction, which was eight years, seven days, the Appellant served an additional six months before he was released from prison in February of 2008.

On July 31, 2007, the Appellant instituted a legal malpractice action against the Appellee, which was predicated upon the reversal of his original conviction for ineffective assistance of counsel. In responding to the complaint filed against him, the Appellee filed an answer and a motion to dismiss pursuant to West Virginia Rule of Civil Procedure 12(b), claiming that the due to the Appellant's nolo contendere plea, the Appellant could not prove his actual innocence in order to prevail in his legal malpractice action. The motion was argued before Judge Eagloski on December 6, 2007. Judge Eagloski indicated from the bench that he would deny the Appellee's motion to dismiss; however, no order was entered.

Following that hearing, the Appellant took no steps to prosecute his action against the Appellee from December 6, 2007, until March 31, 2009. The inactivity in the case prompted Judge Stowers, who had replaced Judge Eagloski, to file a Notice of Intent to Dismiss the matter for failure to prosecute. The Appellant opposed the dismissal and the matter then was transferred to Judge Spaulding.

Judge Spaulding notified the parties that the matter would proceed, based upon the Appellant's opposition to dismissal. The circuit court further instructed the parties to indicate whether any dispositive motions were pending or otherwise being sought. This prompted the Appellee to file a Renewed Memorandum in Support of Previously Filed Rule 12(b)(6) Motion to Dismiss. The renewed motion was filed on October 2, 2009, and a hearing was held on December 3, 2009. By Order dated December 18, 2009, the circuit court granted the Appellee's motion.³

II. Standard of Review

This Court's review of a “circuit court's order granting a motion to dismiss a complaint is de novo.” Syl. Pt. 2, in part, Hill v. Stowers, 224 W.Va. 51, 680 S.E.2d 66 (2009) (quoting, in part, State ex rel. McGraw v. Scott Runyan Pontiac–Buick, Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995)).

III. Discussion of Law A. Actual Innocence Element

The instant appeal centers upon the necessary elements of a legal malpractice claim against a criminal defense attorney and whether one of those elements should include the requirement that a plaintiff establish his actual innocence to the offense. The Appellant argues that the elements necessary to establish legal malpractice against a criminal defense attorney are no different than any other legal malpractice claim. The Appellant posits that this Court should not require a plaintiff to establish his actual innocence to the offense in a legal malpractice action against his criminal defense attorney as it would violate the State's public policy.⁴ The Appellee, however, avers that the majority of jurisdictions require a plaintiff, who is asserting legal malpractice arising from the defense of a criminal action, to prove that he was actually innocent of both the crimes he

[712 S.E.2d 799]

was convicted and any lesser included offenses. Further, the Appellee asserts that public policy requires such proof to prevent a criminal from profiting from his own wrongdoing and to assure that only an innocent person wrongfully convicted due to inadequate representation has suffered a compensable injury. In ruling on this issue, the circuit court found that a criminal defendant “must be able to establish that he was actually innocent of the criminal conduct involved in the underlying matter[,]” opining that “[a] contrary holding would lead to absurd results and violate the public policy of the State for West Virginia.”

The essential elements of a legal malpractice claim are set forth in syllabus point one of Calvert v. Scharf, 217 W.Va. 684, 619 S.E.2d 197 (2005): “Generally, in a suit against an attorney for negligence, the plaintiff must prove three things in order to recover: (1) the attorney's employment; (2) his/her neglect of a reasonable duty; and (3) that such negligence resulted in and was the proximate cause of loss to the plaintiff.” Id. at 685, 619 S.E.2d at...