Keister v. Talbott

• Citation: 182 W.Va. 745,391 S.E.2d 895
• Decision Date: 02 April 1990
• Docket Number: No. 19081,19081
• Court: Supreme Court of West Virginia
• Parties: Ralph J. KEISTER and Ruby Keister v. William W. TALBOTT and Charles F. Herold, Webster County Clerk.

Page 895

391 S.E.2d 895

182 W.Va. 745

Ralph J. KEISTER and Ruby Keister v. William W. TALBOTT and Charles F. Herold, Webster County Clerk.

No. 19081.

Supreme Court of Appeals of West Virginia.

April 2, 1990.

Syllabus by the Court

1. An attorney who undertakes to perform professional services for a client is required to exercise the knowledge, skill, and ability ordinarily possessed and exercised by members of the legal profession in similar circumstances.

2. In an attorney malpractice action, proof of the attorney's negligence alone is insufficient to warrant recovery; it must also appear that the client's damages are the direct and proximate result of such negligence.

3. Damages arising from the negligence of an attorney are not presumed, and a plaintiff in a malpractice action has the burden of proving both his loss and its causal connection to the attorney's negligence.

4. Where a client has been injured by an attorney's negligence in certifying or examining title to real estate, the exact nature of damages may depend on the nature of the client's interest in the property the character of the attorney's error, and the other facts of the case.

5. In an action for malpractice against an attorney who has overlooked an outconveyance of property which results in the purchaser receiving less than he had contracted to buy, damages are ordinarily determined by subtracting the value of the property actually received from the purchase price paid.

6. Where, after accepting a conveyance of real property, a purchaser discovers a marked deficiency in the amount of acreage, he may recover damages from the vendor for the value of the deficiency.

7. " 'Where, in the trial of an action at law before a jury, the evidence is conflicting, it is the province of the jury to resolve the conflict, and its verdict thereon will not be disturbed unless believed to be plainly wrong.' Syl. pt. 2, French v. Sinkford, 132 W.Va. 66, 54 S.E.2d 38 [ (1948) ]." Syllabus Point 1, McCormick v. Hamilton Business Sys., Inc., 175 W.Va. 222, 332 S.E.2d 234 (1985).

William L. Jacobs, Jacobs & Chandler, Parkersburg, for Ralph J. Keister and Ruby Keister.

E.V. Morton, Jr., Morton & Morton, L.C., Webster Springs, for William W. Talbott.

Kimberly G. Mann, Lynch, Mann, Smith & Mann, Beckley, for Charles F. Herold and Webster County Clerk.

MILLER, Justice:

This is an appeal by the plaintiffs below, Ralph J. Keister and Ruby Keister, from an order of the Circuit Court of Webster County, dated February 21, 1989, which denied the plaintiffs' motion to set aside the jury verdict in a civil action below. The jury returned a verdict finding in favor of the plaintiffs on the liability issue, but awarding no damages. The only issue on appeal is whether the jury was advised of the proper measure of damages. ¹ We conclude that they were, and we affirm the judgment of the circuit court.

In January 1986, Mr. Keister acquired an option to purchase two tracts of land situate in Webster County from one Hazel Morris Brown. Mr. Keister hired a Webster County attorney, defendant William W. Talbott, to examine the title to these tracts. Through his attorney, Mr. Keister specifically inquired as to the ownership of the surface and of the coal and mining rights. In a letter dated February 13, 1986, Mr. Talbott advised Mr. Keister that Mrs. Brown had title to both the surface and the mineral rights.

By general warranty deed prepared by Mr. Talbott and dated June 24, 1986, Mrs. Brown conveyed to Mrs. Keister the two tracts of land, "together with all the coal, oil, gas and other minerals underlying said tracts ... and all mining rights and privileges appurtenant thereto[.]" When Mr. Keister subsequently attempted to lease out the coal rights, Mr. Talbott learned that a third party was claiming to have the right to mine the coal underlying the property. By letter dated July 30, 1986, Mr. Talbott advised Mr. Keister that further investigation had revealed that the coal rights had, in fact, been conveyed away in 1946 by the prior owners. Mr. Talbott attributed his failure to discover this conveyance during his title search to improper indexing of the land books by the county clerk. ²

In November, 1986, the plaintiffs instituted a civil action in the Circuit Court of Webster County against Mr. Talbott and Charles F. Herold, former Webster County Clerk. The complaint alleged that the plaintiffs had been deprived of the ownership of the coal underlying the property by virtue of the negligence ³ of Mr. Talbott and/or Mr. Herold and sought compensatory damages in the amount of $10,000,000.

Prior to trial, however, defendant Herold filed a motion in limine seeking to limit the amount of recovery to the difference between the purchase price and the fair market value of the Keister tracts without the coal. The trial court ruled that, as a matter of law, the plaintiffs could not establish a causal connection between their loss of the coal rights and the alleged negligence of the defendants. The trial court granted the motion in limine and excluded any evidence of lost profits the plaintiffs claimed as a result of being unable to conduct mining operations. At trial, the court also excluded evidence offered by the plaintiffs as to the value of the coal in place under the property. Evidence of damages at trial was limited to testimony as to the fair market value of the property without the coal.

On November 2, 1988, the jury returned a verdict against both defendants, but assessed damages in the amount of "$0." By order dated February 21, 1989, the trial court denied the plaintiffs' motion to set aside the verdict. This appeal ensued.

In this appeal, the negligence of Mr. Talbott and Mr. Herold is not contested. The central issue is whether their negligence was the proximate cause of the damages claimed by the plaintiffs. The plaintiffs contend that the trial court should have allowed them to present evidence of the value of the coal under the property or of the profits they could have made from extracting it.

I.

A brief analysis of the elements of an attorney malpractice claim is necessary to this inquiry. An attorney who undertakes to perform professional services for a client is required to exercise the knowledge, skill, and ability ordinarily possessed and exercised by members of the legal profession in similar circumstances. ⁴ See Neel v. Magana, Olney, Levy, Cathcart & Gelfand, 6 Cal.3d 176, 98 Cal.Rptr. 837, 491 P.2d 421 (1971); Lamb v. Barbour, 188 N.J.Super. 6, 455 A.2d 1122 (1982), certif. denied, 93 N.J. 297, 460 A.2d 693 (1983); George v. Caton, 93 N.M. 370, 600 P.2d 822 (App.), cert. quashed, 93 N.M. 172, 598 P.2d 215 (1979); Hodges v. Carter, 239 N.C. 517, 80 S.E.2d 144, 45 A.L.R.2d 1 (1954); Glenn v. Haynes, 192 Va. 574, 66 S.E.2d 509, 26 A.L.R.2d 1334 (1951). See generally 1 R. Mallen & J. Smith, Legal Malpractice § 15.2 (3d ed. 1989); 7 Am.Jur.2d Attorneys at Law § 199 (1980); 7A C.J.S. Attorney & Client § 254 (1980).

The test for actionable legal malpractice was stated in Maryland Casualty Co. v. Price, 231 F. 397, 401 (4th Cir.1916): "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 neglect of a reasonable duty; and (3) that such negligence resulted in and was the proximate cause of loss to the client." See, e.g., Byrd v. Martin, Hopkins, Lemon & Carter, P.C., 564 F.Supp. 1425 (W.D.Va.1983), aff'd, 740 F.2d 961 (4th Cir.1984); Weiner v. Moreno, 271 So.2d 217 (Fla.App.1973); Dessel v. Dessel, 431 N.W.2d 359 (Iowa 1988); Wooddy v. Mudd, 258 Md. 234, 265 A.2d 458 (1970); Basic Food Indus., Inc. v. Grant, 107 Mich.App. 685, 310 N.W.2d 26 (1981); George v. Caton, supra; Jamison v. Norman, 771 S.W.2d 408 (Tenn.1989); Williams v. Barber, 765 P.2d 887 (Utah 1988); Allied Prods., Inc. v. Duesterdick, 217 Va. 763, 232 S.E.2d 774 (1977).

Proof of the attorney's negligence alone is insufficient to warrant recovery; it must also appear that the client's damages are the direct and proximate result of such negligence. Stewart v. Hall, 770 F.2d 1267 (4th Cir.1985); Byrd v. Martin, Hopkins, Lemon & Carter, P.C., supra; Blackhawk Bldg. Sys. Ltd. v. Law Firm of Aspelmeier, Fisch, Power, Warner & Engberg, 428 N.W.2d 288 (Iowa 1988); Allied Prods., Inc. v. Duesterdick, supra; Bowman v. Two, 104 Wash.2d 181, 704 P.2d 140 (1985). Damages arising from the negligence of an attorney are not presumed, and the plaintiff in the malpractice action has the burden of proving both his loss and its causal connection to the attorney's negligence. E.g., Thompson v. D'Angelo, 312 A.2d 639 (Del.Super.1973), aff'd, 320 A.2d 729 (Del.1974); Safeco Title Ins. Co. v. Reynolds, 452 So.2d 45 (Fla.App.1984); Zych v. Jones, 84 Ill.App.3d 647, 40 Ill.Dec. 369, 406 N.E.2d 70 (1980); Blackhawk Bldg. Sys. Ltd. v. Law Firm of Aspelmeier, Fisch, Power, Warner & Engberg, supra; Lieberman v. Employers Ins. of Wausau, 84 N.J. 325, 419 A.2d 417 (1980); Rorrer v. Cooke, 313 N.C. 338, 329 S.E.2d 355 (1985); Evora v. Henry, 559 A.2d 1038 (R.I.1989); Allied Prods., Inc. v. Duesterdick, supra. See generally 7 Am.Jur.2d Attorneys at Law § 223; Annot., 90 A.L.R.3d 293, 297 (1979).

II.

In this case, the plaintiffs contracted to purchase the property in fee simple for the sum of $15,000. Ultimately, their title was defective in that it did not include the coal underlying the property. In Home Fed. Sav. & Loan Ass'n v. Spence, 259 Md. 575, 585, 270 A.2d 820, 826 (1970), the Maryland Supreme Court had this to say in regard to proximate cause and damages in a malpractice action involving a title search:

"In 1 Am.Jur.2d, Abstracts of Title, §§ 19 and 26, it is said that an 'abstracter is not liable for losses incurred otherwise than in reliance on the abstract,' and that his liability extends only to losses 'directly resulting from, or proximately caused by, his breach of duty to furnish a correct abstract.' ...