McCoy v. Dragisich, 19-0018
| Decision Date | 16 October 2020 |
| Docket Number | No. 19-0018,19-0018 |
| Parties | Cynthia McCoy, Anna Eschelmeyer, and William Fowler, Plaintiffs Below, Petitioners v. Steven Dragisich, Defendant Below, Respondent |
| Court | West Virginia Supreme Court |
Petitioners Cynthia McCoy, Anna Eschelmeyer, and William Fowler (hereinafter collectively referred to as "Petitioners"), by counsel Frank X. Duff and Sandra K. Law, appeal the Circuit Court of Hancock County's December 28, 2015 order granting summary judgment in favor of Respondent, Steven Dragisich ("Attorney Dragisich"). Attorney Dragisich, by counsel Ancil G. Ramey, Hannah C. Ramey, Ben M. McFarland, and Robert P. Fitzsimmons, filed a response in support of the circuit court's order. Petitioners filed a reply.
This Court has considered the parties' briefs, their oral arguments, and the record on appeal. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.
Hilda Bain ("Mrs. Bain"), mother of Petitioners, passed away on January 19, 2010, after battling a series of complications stemming from a pneumonia diagnosis. Mrs. Bain had a significant history of health problems, including carotid stenosis, cerebrovascular disease, mini-strokes, hypertension, hyperlipidemia, and other cardiopulmonary complications. Following her pneumonia diagnosis in October of 2009, Mrs. Bain spent seventy days in four separate hospitals in the northern panhandle's tri-state area: Wheeling Hospital in West Virginia; Acuity Specialty Hospital and Trinity Medical Center in Ohio; and West Penn Hospital in Pennsylvania.
After Mrs. Bain's death, her husband and the Petitioners' stepfather, Richard Bain ("Mr. Bain"), qualified as executor of her estate. On March 26, 2010, Cynthia McCoy ("Petitioner McCoy") met with attorney Marcy Grishkevich () of Grishkevich & Curtis, PLLC, to discuss the possibility of filing medical malpractice and wrongful death claims against two hospitals that treated Mrs. Bain during the course of her pneumonia. Petitioner McCoy was concerned that her stepfather, Mr. Bain, would be reluctant to file a lawsuit because his son was a respiratory therapist at one of the hospitals where Mrs. Bain had been treated. As such, Attorney Grishkevich suggested the possibility of removing Mr. Bain as the executor. On this same day, Petitioner McCoy signed a retention agreement with Grishkevich & Curtis, PLLC to provide "legal services concerning a wrongful death action/malpractice issue and removal of personal representative." This agreement was signed by Petitioner McCoy and Attorney Grishkevich.
On April 29, 2010, Attorney Grishkevich sent written correspondence to Mr. Bain regarding a potential conflict of interest he had in serving as the executor of Mrs. Bain's estate, which stemmed from an allegation that Mr. Bain's son was an employee of Acuity Specialty Hospital while Mrs. Bain was a patient there. This correspondence requested that Mr. Bain voluntarily resign as executor of the estate. As a result of Attorney Grishkevich's inquiry, Mr. Bain decided to obtain legal counsel of his own. He contacted the firm of Frankovitch, Anetakis, Colantonio & Simon to represent him in his capacity as executor of Mrs. Bain's estate.
On May 5, 2010, Eric Frankovitch of Frankovitch, Anetakis, Colantonio & Simon sent correspondence to Attorney Grishkevich on behalf of Mr. Bain. In the letter, Mr. Frankovitch notified her that his firm would be investigating the merits of filing a medical malpractice or wrongful death action on behalf of Mrs. Bain's estate. Then, on December 3, 2010, following a review of the medical records and consultation with a medical expert, Mr. Frankovitch and his firm ultimately declined to represent the estate in a medical malpractice or wrongful death claim, but informed Mr. Bain that Attorney Grishkevich "may still be interested in pursuing this claim." Mr. Frankovitch also noted that "[a]s the executor of the Estate, [he has] the authority to bring a claim on behalf of Hilda" and he therefore "may want to talk with Mrs. Grishkevich about pursuing a claim."
Thereafter, on January 3, 2011, Petitioner McCoy executed a new retainer agreement with Grishkevich & Curtis, PLLC, which was signed by Attorney Grishkevich and Respondent Attorney Dragisich, who started working for the firm in August of 2010. This retainer agreement on its face was for "legal services . . . concerning an incident regarding the estate of Hilda I. Bain." The substantive differences between the March 26, 2010 retention agreement and the January 3, 2011 retention agreement were as follows: increasing the contingency fee from 30% to 40%; changing the scope of representation from "legal services concerning a wrongful death action/malpractice issue and removal of personal representative," to "legal services . . . concerning an incident regarding the estate of Hilda I. Bain;" and adding Attorney Dragisich as an "attorney."
After this meeting, Attorney Grishkevich drafted a petition to remove Mr. Bain as executor of the estate; however, it was never filed. Rather, Mr. Bain contacted Attorney Grishkevich and indicated that he wished to be represented by her for the purpose of potentially filing a medical malpractice/wrongful death claim. Likewise, on January 17, 2011, Mr. Bain executed a separate retainer agreement with Grishkevich & Curtis, PLLC, for "legal services . . . concerning an incident regarding the estate of Hilda I. Bain." This agreement also was signed by both Attorney Grishkevich and Attorney Dragisich.
Attorney Dragisich parted ways with Grishkevich & Curtis, PLLC, three months after he signed the January 3, 2011 retention agreement with Petitioner McCoy. This separation was memorialized on April 15, 2011, when Attorney Grishkevich and Attorney Michael Curtis, as members/owners of Grishkevich & Curtis, PLLC, and Attorney Dragisich, as the member/ownerof the newly formed Dragisich Law Office, PLLC, entered into an agreement outlining which files Attorney Dragisich would transfer to his new law office. In that agreement, it stated that all "cases and clients not specifically mentioned above shall be the sole property and responsibility of Grishkevich & Curtis and Grishkevich & Curtis, PLLC." Listed in the agreement were approximately forty-three cases that Attorney Dragisich would take with him to his new firm. The claims encompassed by the retention agreements in the case sub judice—regarding the estate of Mrs. Bain—are not specifically listed in the April 15, 2011 agreement.
Then, in August of 2011, the law firm of Grishkevich & Curtis, PLLC, dissolved. On August 30, 2011, Attorney Grishkevich sent Plaintiff McCoy a letter, on her personal letterhead, that informed Plaintiff McCoy of the firm's dissolution. In the letter, Attorney Grishkevich emphasized that she and her paralegal were still handling the potential claim of Mrs. Bain's estate on behalf of the Petitioners. Attorney Grishkevich never brought any action on behalf of the estate.
On January 10, 2012, Attorney Grishkevich sent a letter to Mr. Bain informing him of the upcoming two-year anniversary of Mrs. Bain's death—which date also signified the expiration of the statute of limitations. In the letter, she asked Mr. Bain to contact her to discuss proceeding with the medical malpractice/wrongful death action. Petitioner McCoy was copied on the correspondence. Attorney Grishkevich never received a response.
Then, on January 21, 2012, Attorney Grishkevich sent another letter to Mr. Bain asking him again if he was still interested in pursuing his claims against the hospitals. Once again, Petitioner McCoy was copied on the correspondence. Attorney Grishkevich never received a response. Thus, on March 24, 2012, she sent a final letter to Mr. Bain informing him that she was closing the file due to his non-responsiveness and the expiration of the statute of limitations.
In October of 2012, Petitioners filed a legal malpractice claim against Attorney Grishkevich, Grishkevich & Curtis, PLLC, and Attorney Dragisich. In the Complaint, the attorneys and law firm were alleged to have committed legal malpractice by not bringing a wrongful death action within the statute of limitations. Eventually, the claims against Attorney Grishkevich, other lawyers, and the firm were settled.1 The Circuit Court granted summary judgment in favor of Attorney Dragisich finding that (1) there was no attorney-client relationship between Petitioners and Attorney Dragisich; and (2) Attorney Dragisich did not owe any legal duty of care to the Petitioners. This appeal followed.
Petitioners ask this Court to review the order of the Circuit Court of Hancock County which granted summary judgment in favor of Attorney Dragisich. Our standard of review of the circuit court's order is well settled. On appeal, this Court accords a plenary review to a circuit court's order granting summary judgment: "A circuit court's entry of summary judgment is reviewed de novo." Syl. pt. 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994).
In conducting our de novo review, we apply the same standard for granting summary judgment that is applied by the circuit court. Under that standard, "[a] motion for summaryjudgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Syl. pt. 3, Aetna Cas. & Surety Co. v. Fed. Ins. Co. of New York, 148 W. Va. 160, 133 S.E.2d 770 (1963). With this standard in mind, we now address the arguments presented.
On appeal, Petitioners argue that the circuit court erred in granting Attorney Dragisich's motion for summary judgment and in finding (1) that there was...
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