Timms v. Rosenblum

• Decision Date: 24 May 1989
• Docket Number: Civ. A. No. 88-1549-A.
• Citation: 713 F. Supp. 948
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Debra S.W. (Ball) TIMMS, Plaintiff, v. Herbert S. ROSENBLUM, David Rosenblum, and Rosenblum & Rosenblum, a Virginia Professional Corporation, Defendants.

713 F. Supp. 948

Debra S.W. (Ball) TIMMS, Plaintiff, v. Herbert S. ROSENBLUM, David Rosenblum, and Rosenblum & Rosenblum, a Virginia Professional Corporation, Defendants.

Civ. A. No. 88-1549-A.

United States District Court, E.D. Virginia, Alexandria Division.

May 24, 1989.

Jack L. Wuerker, Golden, Freda & Schraub, P.C., McLean, Va., for plaintiff.

Francis J. Prior, Jr., Siciliano, Ellis, Dyer & Boccarosse, Fairfax, Va., for defendants.

MEMORANDUM OPINION

ELLIS, District Judge.

Introduction

This case presents novel questions concerning the construction of Virginia's nonsuit statute and the expansion of legal malpractice damages to include recovery for mental anguish. Plaintiff in this professional malpractice action alleges that the lawyer defendants were negligent and reckless in their representation of her in a child custody battle with the result that she lost custody of her two children. She contends it took her two years with new counsel and substantial legal fees and expenses to win back the custody of her children. In this action, she seeks recovery of these fees and expenses as well as punitive damages and damages for mental anguish.¹ Defendants moved to dismiss or, in the alternative, to strike the claims for punitive damages and mental anguish. The Court denied the motion with respect to punitive damages, but did so without prejudice to defendants to renew their attack on these damages by way of summary judgment or motion for a directed verdict. The motion pertaining to damages for mental anguish was taken under advisement pending review of supplemental briefs. The Court has now completed its review of these supplemental briefs and sets forth here its reasons for concluding that plaintiff's claim for such damages must be dismissed.

Background

In July 1984, plaintiff learned that the Georgia Department of Child Protection Services was investigating allegations filed in Virginia of sexual and physical abuse of her two young children. At the time plaintiff, then living in Georgia, and her former husband, then living in Virginia, shared custody of the children. Plaintiff had custody during the school year and the father had custody during the summer. Plaintiff feared that this investigation was a sign that her former husband was about to launch an effort to deprive her of custody. With this in mind, she consulted a lawyer in Georgia who, in turn, contacted the defendants in Virginia. Defendants agreed to represent plaintiff. Thereafter, according to plaintiff, defendants did little, if anything, right. Among other things, it is alleged that defendants misrepresented their experience in custody cases, failed to prevent entry of an ex parte emergency order depriving plaintiff of custody, failed to retain an expert after representing they would do so, failed to file a motion to transfer the case to Georgia, failed to secure witnesses for a hearing, failed to interview witnesses in advance of the hearing and induced or pressured plaintiff to sign a consent order by threatening her with permanent custody loss if she declined to do so. As a direct result of these failures and misrepresentations, plaintiff claims she lost custody of her children for two years and, at the time, faced the prospect of permanent loss of custody.

In November 1984, plaintiff discharged defendants, retained new counsel and then spent two years and nearly $100,000 to recover custody of her children. She succeeded. Thereafter, in August 1986, plaintiff brought a malpractice action against defendants in the Fairfax County Circuit Court. That action was essentially identical to the instant one. There, as here, defendants moved to strike the damage claim for mental anguish and emotional distress. On September 16, 1986, the parties, by counsel, argued the motion before Judge Middleton of the Fairfax Circuit Court who, on September 22, issued a letter opinion granting the defendants' motion to strike the mental anguish claim.² The next day, plaintiff, faced with this bad news, suffered a voluntary nonsuit. Defendants did not object. This action followed in December, 1988, more than two years after this cause of action arose.

Given these facts, the following questions are presented:

(1) Was the nonsuit, pursuant to Va. Code § 8.01-380, valid as to the mental anguish claim given that this claim had been submitted for decision and Judge Middleton had issued a letter opinion striking the claim?

(2) Notwithstanding the nonsuit, is Judge Middleton's decision entitled to deference in this action as res judicata or law of the case?

(3) Is plaintiff's mental anguish claim a valid cause of action in Virginia given the allegations in this case?

Analysis

I. The Nonsuit

Analysis appropriately begins with the effect or validity of the nonsuit with respect to the mental anguish claim. Defendants argue that Virginia's nonsuit statute precluded a nonsuit as to the mental anguish claim because that claim had already been submitted to the state trial judge. This argument, if accepted, would lead to dismissal of the mental anguish claim as barred by the statute of limitations. More than two years elapsed between the accrual of the cause of action and the filing of this federal suit. Only the tolling provision of the nonsuit statute makes the mental anguish claim (as well as the other claims) timely in this Court. If the nonsuit were invalid or ineffective as to the mental anguish claim, then the statute's tolling provision would not apply and the claim would be time-barred. The nonsuit validity question is therefore potentially dispositive. Its answer requires construction of Virginia's nonsuit statute, the pertinent portions of which are as follows:

A party shall not be allowed to suffer a nonsuit as to any cause of action or claim, or any other party to the proceeding, unless he does so 1 before a motion to strike the evidence has been sustained or 2 before the jury retires from the bar or 3 before the action has been submitted to the court for decision.

Va.Code § 8.01-380(A). In essence, the statute prohibits a nonsuit in three circumstances.³ The first two—after a "motion to strike the evidence" has been sustained or after "the jury has retired from the bar"—have nothing to do with the circumstances at bar, namely a decision dispositive of only one of several claims in suit.⁴ But the answer is not so clear with respect to the third circumstance in which a nonsuit is statutorily precluded. A motion dispositive of one of the several claims in suit was plainly "submitted to the court for decision." The question presented, however, is whether the prohibition barring a nonsuit after an "action" has been submitted for decision applies only where the entire action is submitted, as occurs at the conclusion of the evidence in a bench trial, or also when some, but fewer than all, the claims in suit are submitted for decision, as may occur in pretrial motions to dismiss or for summary judgment.

There is no clear answer to this novel question.⁵ The term "action" is not wholly free from ambiguity. The Virginia Code definition of "action"⁶ and the nonsuit statute's structure⁷ suggest, but do not compel, the conclusion that "action" refers to the entire cause, i.e., all the claims, and not just some of them. Decisions from other jurisdictions support this construction of the term "action."⁸ Noteworthy among these decisions is Smith, Kline and French Laboratories v. A.H. Robins Co., 61 F.R.D. 24 (E.D.Pa.1973). There, a district court held that a party desiring to delete some but not all claims against several defendants could properly proceed under Rule 15, Fed.R.Civ.P., relating to amendment of pleadings rather than under Rule 41, Fed.R.Civ.P., relating to dismissal of "actions." In reaching this conclusion, the court distinguished between a "claim" or "claim for relief" and "action." The latter term, the court noted, "is the sum total of the claims which the parties assert against each other." Id. at 28-29. Given this construction of "action," the nonsuit statute would not preclude a party from suffering a nonsuit when fewer than all the claims are submitted for decision.⁹

But the possible consequences of this conclusion provide a compelling argument for the opposite conclusion. Permitting an entire case to be nonsuited after some, but not all, the claims in the action have been submitted for decision, or even decided, could result in a waste of public and private resources. In a complex multi-claim suit, for example, a motion for partial summary judgment covering all but one of the claims might be filed. Thereafter, the court and parties would presumably expend substantial time and effort to resolve the issues. Even so, and even after these claims are submitted and the court issues its decision, the entire matter could be nonsuited. Plaintiff would then be entitled to reinstate the action, including the claims already submitted or decided in the same court as the first, unless that court lacks jurisdiction or is an improper venue. The new action, including the already submitted or decided claims, could also be brought in a federal court, presumably in any state and district where venue and jurisdiction are proper, or in any other court if there is "good cause" for proceeding there. In other words, having essentially lost all claims but one in pretrial motions in a Virginia trial court, a litigant can try again either in that court, in a federal court, or elsewhere "for good cause." There is simply no good policy reason to allow this. In effect, it gives a litigant another chance at bat on the submitted claims after he has struck out—more than his allotted day in court. Nor, for the reasons stated in the following section, can res judicata or the law of the case doctrines be consistently relied on to prevent or ameliorate these untoward results. In sum, adverse, even absurd consequences may flow from construing the nonsuit statute to permit...