Stewart v. Hall, 83-2211
| Decision Date | 27 August 1985 |
| Docket Number | No. 83-2211,83-2211 |
| Citation | 770 F.2d 1267 |
| Parties | Stephen M. STEWART, Appellee, v. B. Vandenburg HALL, Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
B. Vandenburg Hall, Fairfax, Va., for appellant.
Lewis H. Goldfarb, Alexandria, Va. (Charles M. Rust-Tierney, Hirschkop & Grad, Alexandria, Va., on brief), for appellee.
Before WIDENER and ERVIN, Circuit Judges, and BUTZNER, Senior Circuit Judge.
Hall, an attorney, appeals from a judgment entered against him after a jury found him liable for legal malpractice and awarded the plaintiff compensatory and punitive damages. Finding that the case was not tried on the proper theory of malpractice and, additionally, that this constituted fundamental error, we vacate the judgment of the district court and remand for a new trial on the proper theory.
The plaintiff sued Hall on the theory that Hall negligently represented the plaintiff in a child custody matter and in so doing intentionally concealed from his client, the plaintiff, certain material facts with respect to Hall's preparation of the child custody case. In early June 1981, the plaintiff retained Hall to seek a change of custody for the plaintiff's children from the plaintiff's ex-wife to plaintiff. 1 Although the plaintiff upon initial consultation with Hall intended only to seek enforcement of his visitation rights under a property settlement agreement that his ex-wife continually failed to honor as to visitation, upon Hall's advice the plaintiff decided to seek custody of the children, although a Colorado court had entered a judgment against the plaintiff for approximately $2,400 for child support arrearages. The evidence showed that Hall represented to the plaintiff that the arrearages would pose no problem at the custody hearing because he, Hall, would secure a schedule of payments prior to the hearing whereby the plaintiff could satisfy the Colorado judgment by making payments of $50 per month. Such a schedule of payments, as Hall represented to the plaintiff, would eliminate the arrearages problem as an issue at the custody hearing. The evidence further showed that the plaintiff and Hall discussed the strategy that counsel was to pursue in seeking the change in custody. Hall advised that it would be wise to obtain a contempt citation against the ex-wife for her repeated denial of the plaintiff's visitation rights and that such a citation should be obtained prior to the custody hearing. The plaintiff signed the show cause petition and affidavit which were necessary for a contempt citation to be issued against his ex-wife, and Hall assured him that it was not necessary for the plaintiff to be present at the show cause hearing.
After retaining Hall and discussing strategy for the custody hearing, the plaintiff went to summer school in Europe and returned to Virginia in August 1981, approximately three days before the scheduled custody hearing. There was evidence that when the plaintiff returned he was surprised to discover that Hall had not set up the schedule of payments to cure the arrearages and that he asked Hall whether the matter would be taken care of prior to the custody hearing. According to the testimony of the plaintiff and the plaintiff's father, Hall represented that an associate of his was handling the arrearages problem and that it would be taken care of prior to the custody hearing. However, no schedule of payments was set up prior to the custody hearing and, as a result, the plaintiff went into the hearing owing child support arrearages under the outstanding Colorado judgment.
During the plaintiff's absence, Hall also failed to appear at the show cause hearing and, as a result, the petition was dismissed, so there was no show cause order outstanding for a denial of visitation prior to the custody hearing. The plaintiff testified that he discussed the contempt hearing matter with Hall prior to the custody hearing and that Hall stated,
Despite failing to get a contempt citation and to palliate the arrearage problem, Hall represented the plaintiff at the custody hearing and put on evidence including that relating to the relative fitness of the custodial and noncustodial parent which, of course, was relevant to the determinative issue in the case. During the custody hearing, the Virginia domestic relations court issued a rule to show cause against the plaintiff and the plaintiff's ex-wife for their respective failures to abide by the terms of their property settlement agreement. It found that the ex-wife had violated the agreement by denying the plaintiff visitation and that the plaintiff had violated the agreement by failing to pay child support. That court dismissed the plaintiff's petition for change of custody without hearing from the plaintiff's ex-wife and, in giving its ruling, indicated that the plaintiff probably would have won custody but for the arrearages in child support payments. 2
The malpractice case in the district court was tried on the theory that if the jury found that the attorney was negligent on the basis of the alleged acts and omissions, the jury would then consider whether the client was damaged by the negligent conduct. The district court instructed the jury that it could find compensatory damages on the basis of the client's claim that he suffered losses attributable to mental anguish, emotional distress, and inconvenience. The court further instructed the jury that it could find punitive damages only if it found in favor of the plaintiff on the issue of negligence, awarded compensatory damages, and additionally determined that the defendant's acts were wanton or oppressive.
The jury awarded both compensatory and punitive damages. On appeal, Hall claims that the award was excessive and unsupported by the evidence; that the judgment was obtained by fraud and false evidence; and, that the court committed reversible error by admitting into evidence a letter of private reprimand issued by the Virginia State Bar to Hall. Not without great thought on the matter, however, we vacate the judgment of the district court on a different theory. We are convinced that the case was tried on the wrong theory of legal malpractice and that it would be fundamental error to allow the judgment to stand. Because the case must be tried again upon a different theory, some or all of the issues raised in Hall's brief may not arise, or may well be presented in different context. We thus think it more appropriate not to decide any of them.
To prevail in a malpractice action based on an attorney's alleged negligence in connection with litigation, the general rule is that the negligence is actionable only if the claimed damages were proximately caused by the negligence. Maryland Casualty Co. v. Price, 231 Fed. 397 (4th Cir.1916). These damages are calculated on the basis of the value of the claim lost or judgment suffered by the alleged negligent attorney. Thus, in making the determination that an attorney's negligence proximately caused a client's damages, the trier of the malpractice action must find that the result in the underlying action would have been different but for the attorney's negligent performance. See generally Annot. 45 A.L.R.2d 5, 19; Annot. 45 A.L.R.2d 62, 63.
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