McGuire v. Fitzsimmons

• Decision Date: 17 July 1996
• Docket Number: No. 23180,23180
• Citation: 197 W.Va. 132,475 S.E.2d 132
• Court: West Virginia Supreme Court
• Parties: George McGUIRE and Judith McGuire, Plaintiffs, v. Robert P. FITZSIMMONS and Fitzsimmons and Parsons, L.C., Defendants.

Page 132

475 S.E.2d 132

197 W.Va. 132

George McGUIRE and Judith McGuire, Plaintiffs, v. Robert P. FITZSIMMONS and Fitzsimmons and Parsons, L.C., Defendants.

No. 23180.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 27, 1996.

Decided July 17, 1996.

[197 W.Va. 133] Syllabus by the Court

Under W.Va.Code, 56-1-1(a)(1) [1986] when determining venue in a legal malpractice case, a circuit court can find venue proper based on where either the defendants reside or the cause of action for the legal malpractice suit arose. The circuit court may find venue to be proper in more than one county. Venue based on where the cause of action for the legal malpractice suit arose is proper in the following counties: (1) where the attorney's employment was contracted, that is, where the duty came into existence; or (2) where the breach or violation of the duty occurred; or (3) where the manifestation of the breach--substantial damage--occurred.

Allan N. Karlin, Jack S. Kaplan, Morgantown, for plaintiffs.

Herbert G. Underwood, Jill Oliverio Florio, Steptoe & Johnson, Clarksburg, for defendants.

Philip C. Petty, Rose, Padden & Petty, Fairmont, for defendants.

McHUGH, Chief Justice:

This case addresses a certified question from the Circuit Court of Monongalia County concerning the venue of the circuit court under W.Va.Code, 56-1-1(a)(1) [1986]. See syllabus pt. 3, Bass v. Coltelli, 192 W.Va. 516, 453 S.E.2d 350 (1994); see also W.Va.R.App.P. 13 [1995] and W.Va.Code, 58-5-2 [1967] for proceedings for certified questions. The plaintiffs in this legal malpractice case are George McGuire and Judith McGuire, and the defendants are Robert P. Fitzsimmons and Fitzsimmons and Parson, L.C. The certified question concerns where, in a legal malpractice case, the "cause of action" arises to render venue proper under W.Va.Code, 56-1-1(a)(1) [1986].

I. FACTS

Mr. and Mrs. McGuire filed a suit in Monongalia County seeking damages in a legal malpractice action against their former attorney On September 24, 1992, Mr. Fitzsimmons telephoned the McGuires and informed them that he would not be able to represent them. In a letter dated September 25, 1992 sent to the McGuires, Mr. Fitzsimmons confirmed that conversation. Enclosed with the confirmation letter was a draft of a complaint, which Mr. Fitzsimmons prepared for possible filing by the McGuires in Monongalia County. ² On September 28, 1992, the McGuires filed the complaint; however, by order entered on October 27, 1993, the McGuires' medical malpractice case was dismissed as untimely filed because it was barred by the applicable statute of limitation.

                [197 W.Va. 134]  Mr. Fitzsimmons and his firm. 1  The McGuires, residents of Monongalia County, contacted Mr. Fitzsimmons, a resident of Ohio County, for advice and counsel regarding a possible medical malpractice action in Monongalia County against an optometrist.  The parties met once in January 1991, at Mr. Fitzsimmons' office in Ohio County.  Between January 1991 and September 25, 1992, the parties communicated by telephone and in writing, from their respective home counties, regarding the proposed lawsuit
                

The McGuires then filed this legal malpractice action in Monongalia County against defendants alleging: (1) Mr. Fitzsimmons failed to investigate properly and to pursue their medical malpractice claim in a timely fashion; (2) Mr. Fitzsimmons failed to determine the applicable statute of limitation, thereby causing the complaint to be filed in an untimely manner; (3) Mr. Fitzsimmons' acts and omissions were negligent; and (4) as a direct and proximate cause of Mr. Fitzsimmons' negligence, the McGuires were barred from pursuing their medical malpractice suit.

Alleging improper venue in Monongalia County, the defendants moved to dismiss this legal malpractice complaint. ³ The Circuit Court of Monongalia County, finding venue proper, denied the defendants' motion to dismiss and upon motion by the defendants, certified the following question to this Court:

Do plaintiffs, suing their former attorneys in tort for legal malpractice, establish proper venue based upon where the cause of action arose under W.Va.Code 56-1-1(a)(1) in the county in which: (1) the defendants allegedly failed to timely file a lawsuit on behalf of plaintiffs; (2) the plaintiffs reside and sustained their injuries; and (3) the plaintiffs received phone calls, correspondence, and a pro se complaint from the defendants?

We agree with the circuit court that venue is proper in Monongalia County, and based on the reasons discussed below, we answer the certified question affirmatively.

II. DISCUSSION

W.Va.Code, 56-1-1(a) [1986], our general venue statute, provides: "Any civil action or other proceeding, except where it is otherwise specially provided, may hereafter be brought in the circuit court of any county: (1) Wherein any of the defendants may reside or the cause of action arose...." (emphasis added.) Because Mr. Fitzsimmons does not reside in Monongalia County, for venue to be proper the cause of action must arise in Monongalia County. ⁴ In the case before us, the McGuires filed suit in Monongalia County, reasoning that at least a part of their cause of action arose in that county. The McGuires maintain that because elements of their cause of action occurred in both Monongalia and Ohio Counties, venue was proper in either county. However, the defendants argue that because the alleged cause of action arose solely in Ohio County, venue is proper only in Ohio County.

A. Proper Venue in a Legal Malpractice Action

We have not previously had the opportunity to discuss where venue is proper in a legal malpractice action. In a legal malpractice action, there are two suits: the malpractice against the lawyer and the underlying suit for which the client originally sought legal services, which may be considered a "suit within a suit." The first question to be addressed is whether the term "cause of action" in W.Va.Code, 56-1-1(a) [1986] refers to the legal malpractice suit or to the underlying suit.

Mr. Fitzsimmons contends the term "cause of action" refers to the legal malpractice action and the McGuires do not challenge this characterization. The Michigan Supreme Court recently reviewed the same issue in Coleman v. Gurwin, 443 Mich. 59, 503 N.W.2d 435 (1993). In Coleman, the client, a resident of Washtenaw County, met with Attorney Gurwin in Oakland County regarding a wrongful discharge suit arising out of Wayne County. The attorney told the client that his claim was not meritorious; after the statute of limitations had expired on the wrongful discharge suit, the client brought a legal malpractice action against the attorney in Wayne County. The attorney argued that venue was only proper in a county where the legal malpractice action arose, either Washtenaw County, where the client resided and the damages occurred, or Oakland County, where the legal representation began, but not Wayne County, where the wrongful discharge suit arose. The Michigan Supreme Court agreed and found venue proper where the legal malpractice action arose, reasoning that the underlying suit on which the legal malpractice action is based is not part of, in and of itself, the second or legal malpractice suit and therefore does not control a malpractice suit. Venue is based on where the alleged negligence occurred in the legal malpractice suit and not the underlying suit. In determining where the cause of action arose in the legal malpractice suit, the Michigan Court found that the attorney-client relationship was established in Oakland County; that legal advice was drafted and mailed in Oakland County and received in Washtenaw County; and that the statute of limitations ran while plaintiff resided in Washtenaw County. The Michigan Court concluded that venue was not proper in Wayne County because a "legal malpractice action arises solely in the county where the allegedly negligent legal representation occurred." Id., 443 Mich. at 66, 503 N.W.2d at 438.

However, several other states based their determination of proper venue on where the underlying suit arose. See Rouse Mechanical, Inc. v. Dahl, 489 N.W.2d 272 (Minn.App.1992) ("The trial court was not clearly required to change venue to county of defendant's residence, when defendant was alleged to have committed malpractice by failing to serve mechanic's lien statement upon property Because W. Va.Code, 56-1-1(a) [1986] allows a suit to be brought where "the cause of action arose," we find that in a legal malpractice suit the "cause of action" refers to the present, that is the legal malpractice suit, and not to the past or the underlying suit. We agree with the Michigan Supreme Court's finding that a "legal malpractice action arises solely in the county where the allegedly negligent legal representation occurred." Coleman, 443 Mich. at 66, 503 N.W.2d at 438.

[197 W.Va. 136] owner [in the county] where suit was brought."). See also Ebell v. Seapac Fisheries, Inc., 692 P.2d 956 (Alaska 1984) (venue is proper in the district in which the "claim arose," which is the place of plaintiff's injury) and Weiner v. Prudential Mortgage Investors, Inc., 557 So.2d 912 (Fla.App.1990) (venue for legal malpractice action is where services were to be performed, that is, where the suit was to be filed); Ivey v. Padgett, 502 So.2d 22 (Fla.App.1986); Johnson v. Nelson, 275 N.W.2d 427 (Iowa 1979) (venue is proper where the defendant attorney resides or where the underlying suit was dismissed).

We must now consider where this legal malpractice action arose in order to determine proper venue under W.Va.Code, 56-1-1(a) [1986].

B.

Is venue proper in more than one county?

The central issue in this case is whether a cause of action in a legal malpractice suit can accrue in more than one county for purposes of establishing venue. The plain language of W. Va.Code, 56-1-1(a)(1) [1986] does not limit the venue to one county but provides at least two possible...