Robert Burnworth v. Kent George
231 W. Va. 711
| W. Va. | 2013Background
- In 2000, Burnworth retained Kent George and RAM to represent him in selling Access Documents and transferring control to ADSC; ADSC was formed with Joneses involved.
- At closing (Aug. 1, 2001) Burnworth learned the two second-priority deeds of trust would secure ADSC’s note on Joneses’ property and Colby’s property, not as originally contemplated.
- George and RAM did not conduct title searches pre-closing; Poffenbarger did not search titles either; Burnsworth proceeded with closing despite warning to postpone.
- In 2002, Burnworth released the Joneses’ property deed of trust; after that, security depended on Colby’s deed of trust and personal guaranties, which later proved defective.
- In 2006 and 2009, ADSC defaulted; Burnworth sought collection but did not initiate formal action against all security sources; Pepper later pursued collection and discovered defects.
- In 2011 Burnworth filed legal malpractice against George, RAM, and Poffenbarger; in 2012, the circuit court granted summary judgment for defendants based on lack of damages and later denied relief from judgment.
- A stipulated settlement in Burnworth’s collection action purported to extinguish the note and security; a nunc pro tunc correction later removed extinguishment language, leading to judicial estoppel issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Burnworth prove damages causally linked to alleged negligence? | Burnworth asserts damages flowed from defective Colby deed of trust and failure to search titles. | Defendants contend damages were extinguished by settlement and Burnworth failed to prove causation. | No; damages not proven; summary judgment affirmed. |
| Whether relief from summary judgment was proper given amended stipulation | Burnworth relied on amended stipulation to show potential recoverable damages. | Estoppel applies; amended stipulation inconsistent with prior order, harming defendants. | No; judicial estoppel barred relief; order affirmed. |
| Whether the circuit court properly granted summary judgment on malpractice claim | Negligence caused Burnworth’s losses; defendants breached duties. | Damages and causation lacking; Burnsworth contributed by not delaying closing. | Yes; summary judgment affirmed. |
Key Cases Cited
- Williams v. Precision Coil, Inc., 194 W. Va. 52 (1995) (summary judgment standard; genuine issues of material fact)
- Calvert v. Scharf, 217 W. Va. 684 (2005) (negligence plus damages causation required for malpractice)
- Keister v. Talbott, 182 W. Va. 745 (1990) (damages must be proven and causally connected to negligence)
- Robertson v. West Virginia Department of Transportation, 217 W. Va. 497 (2005) (judicial estoppel elements applied)
- Aetna Cas. & Sur. Co. v. Federal Ins. Co. of New York, 148 W. Va. 160 (1963) (summary judgment standard and motion practice)
- Painter v. Peavy, 192 W. Va. 189 (1994) (summary judgment review standard)