Weidman v. Babcock

• Decision Date: 11 January 1991
• Docket Number: No. 900616,900616
• Citation: 400 S.E.2d 164,241 Va. 40
• Parties: William J. WEIDMAN, et al. v. William L. BABCOCK, Jr., et al. Record
• Court: Virginia Supreme Court

Page 164

400 S.E.2d 164

241 Va. 40

William J. WEIDMAN, et al. v. William L. BABCOCK, Jr., et al.

Record No. 900616.

Supreme Court of Virginia.

Jan. 11, 1991.

Richard C. Weidman (William J. Wiedman, on brief), for appellants.

Thomas Moore Lawson (Barry R. Poretz, Jordan, Coyne, Savits & Lopata, on brief), for appellees.

Present: All the Justices.

COMPTON, Justice.

This is an appeal in two civil actions, consolidated below for trial, brought by two clients against their former attorney at law. The plaintiffs seek damages for the attorney's alleged "breach of fiduciary responsibility" to the clients. First, we will address an issue of appellate procedure. Second, we will consider the merits of the trial court's substantive ruling.

In 1988, appellant William J. Weidman and his brother, appellant Richard C. Weidman, M.D., filed separate and virtually identical actions against appellee William L. Babcock, Jr., Esquire, and his law firm, appellee Ross, Marsh, Foster, Myers and Quiggle. Generally, the plaintiffs alleged in amended motions for judgment that an attorney-client relationship existed between them and Babcock during the period May 1984 to January 1986. The plaintiffs alleged that Babcock rendered various legal services to them during the period in connection with estate and trust matters involving family members, including their mother, who was in ill health, and their father.

The plaintiffs further alleged that, beginning in September 1987, Babcock undertook to represent their father, a party adverse to them, against their interests in at least seven contested actions pending in the court below. The plaintiffs alleged that, in those proceedings, "Babcock has attempted to exploit to the disadvantage of" the plaintiffs information gained from the plaintiffs during the former attorney-client relationship. Accordingly, the plaintiffs alleged, they have been damaged as the direct and proximate result of "Babcock's breach of fiduciary responsibility."

Subsequently, defendants filed motions to dismiss the present actions. The defendants referred to the "several legal disputes" which commenced in 1987 between the plaintiffs and their father "concerning the estate and trust matters and also the guardianship of the plaintiffs' mother." Defendants asserted that in "several of these lawsuits, the plaintiffs raised a conflict issue" by moving to disqualify Babcock as attorney for the father on the grounds that he had represented the plaintiffs "during the drafting of the estate and trust materials."

Defendants further alleged in their motion to dismiss that, in September 1988, attorneys for the plaintiffs withdrew the motions to disqualify Babcock "in all of the earlier mentioned lawsuits, and those cases proceeded to their respective conclusions." Defendants also alleged that, in the present lawsuits, the plaintiffs claim to have been damaged by Babcock's conduct which resulted in "the unfavorable outcomes those prior lawsuits." Concluding, defendants asserted that, "by removing the motions to disqualify in the earlier lawsuits, the plaintiffs have waived their right to allege a breach of an attorney/client relationship in the actions pending before the court today, as well as the alleged damages that the plaintiffs claim from the unfavorable outcomes of the prior lawsuits."

On January 16, 1990, the trial court heard oral argument from counsel for all parties on the defendants' motion to dismiss. Upon consideration of the argument, the court announced from the bench that defendants' "motion is granted." Counsel for the plaintiffs did not voice an objection to this ruling. On February 7, 1990, the decision made during the hearing was memorialized in a "Final Order," which recited that "the defendants' motion ... to dismiss on the grounds of waiver is sustained and ... the plaintiffs' cases shall be dismissed with prejudice." The order was endorsed "SEEN" by counsel for the plaintiffs.

On February 12, 1990, plaintiffs, by counsel, filed a notice that on February 16, 1990, they would move the trial judge "to reconsider his ruling that Plaintiffs' claims herein are barred by waiver," citing Rule 1:1 (all final judgments shall remain under control of trial court for 21 days after date of entry, and no longer). On February 16, 1990, plaintiffs filed a nine-page memorandum with the court in support of the motion to reconsider. Following a hearing, the trial court entered an order on February 16 denying plaintiffs' motion for reconsideration. Plaintiffs' counsel endorsed that order, "SEEN: and all Exceptions noted." We awarded plaintiffs this appeal.

On appeal, defendants contend that the plaintiffs have not preserved properly their right to appeal. They note that objection was not made on behalf of the plaintiffs to the oral ruling sustaining the motion to dismiss and that the record does not "reflect the absence of an opportunity" for plaintiffs' counsel to object. Further, defendants note that "the Order memorializing the Court's ruling was endorsed by appellants' counsel merely as 'seen' and not 'objected to.' " Consequently, defendants contend, "appellants have thus repeated a fatal error of judgment and law--not only did they waive their right to proceed against Babcock, but they likewise waived their right to appeal the clear ruling of the trial court." We do not agree that the appeal is barred procedurally.

Rule 5:25, governing appeals to this Court, provides, in part: "Error will not be sustained to any ruling of the trial court ... unless the objection was stated with reasonable certainty at the time of the ruling." Code § 8.01-384 touches the issue at the trial court level. It provides that formal exceptions to rulings or orders are unnecessary but "it shall be sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objections to the action of the court and his grounds therefor." And, we have stated that a party's failure to object to a final order by merely endorsing it as "Seen," without more, is not sufficient to preserve that party's right to appeal. Langley v. Meredith, 237 Va. 55, 61-62, 376 S.E.2d 519, 522 (1989).

In the present case, however, we do not have a bare failure to object to the court's ruling from the bench followed by endorsement of the final order merely as "Seen." Instead, plaintiffs' counsel during the January 16 hearing on the motion to dismiss repeatedly made known to the court his position. Typical of counsel's argument was the following statement: "There was no express waiver of my clients' rights to prosecute an action for a breach of fiduciary duty against their former attorney." Then, during the 21-day period under Rule 1:1 within which the trial court retained jurisdiction over the final order, the plaintiffs filed a motion for rehearing and a nine-page memorandum contending that the plaintiffs' claims were not barred by the doctrine of waiver. Additionally, counsel for the plaintiffs endorsed the order denying the motion for reconsideration entered on February 16, within 21 days of the February 7...