*1 Richmond Roy Allied Et Al. v. Productions, Inc., H. Et Duesterdick, Etc., Al.
March Record No. 751444.
Present, All the Justices. (Bremner, Byrne, Janas, Edn-ard D. Barnes Baber & on briefs), plaintiffs for in error. (James Philip Gregg; Norton; J. Walsh C. Randell Hunt Macleay, Lynch, brief), Gregg, Bernhard & on defendants error. opinion J., delivered the of the court.
Cochran, granted sufficiency This writ of error was to test the of a judgment seeking damages legal malpractice. motion for Georgia corporation, Productions, Inc., Allied a Howard E. (collectively, Caldwell, Caldwell, Martha and Charles D. Wheeler client) Roy a filed motion for H. H. individually, Baylinson, Roy Duesterdick, and Richard N. Kudysh, Baylinson, Duesterdick, and Morton t/a & Duesterdick Kudysh, partnership engaged practice in the of law (collectively, attorney). alleged that, motion reason of attorney’s negligence failing sounding defend suit upon jury’s fraud, the client had suffered a default awarding verdict compensatory damages $10,000 punitive $200,000. $500,000 The motion sought viz., upon claims, based several principal interest *2 attorneys’ default fees, costs, anguish, court mental inconvenience, grief, and The motion did embarrassment. not allege any part that of the default paid. had been The attorney demurred, demurrer, and for purposes of the the parties that stipulated no payment had been made and that the client’s claim upon injuries based than the default judgment would be withdrawn without prejudice.
By final August 7, order entered 1975, the trial court ruled plaintiffs “since the paid any have not portion of the them, damages, any, the remote, if are too speculative contingent” and that “the for Judgment Motion to allege fails damages”. Upon actual rulings, these the demurrer was sustained and the case dismissed.
Although this Court decided the first case White, (2 Wash.) Stephens reported States, in the United 2 v. Va. (1796), passed we not upon have the precise presented issue Nevertheless, here. general we have followed the rule that in to damages order negligence attorney recover for the of his client must prove Staples Thus, the extent of the in damages. Ex’ors v. Staples, 85, (1888), 199, 203 85 Va. 7 S.E. we said: cases of negligence, the extent of the sustained
“[I]n
complainant
affirmatively
shown;
must be
for the
attorney
is
injury
liable for the actual
his client has
received,
necessarily
and not
for the nominal
amount
for
Ev.,
Accordingly,
demands
collection. 2 Greenl.
sec. 146.
when
alleged
is
attorney’s
debt
to have been lost
negligence,
subsisting debt,
it must
it
be shown that was a
(Citations omitted.)
that the debtor was solvent.”
This case was cited
being
weight
as
with the
in.accord
authority Maryland
Casualty
Price,
Co. v.
(4th
in
“In attorney a suit an for negligence, plaintiff prove must things (1) attorney’s three to order recover: employment; (2) (3) his neglect duty; of a reasonable negligence resulted in was cause of loss to the . client...
:|; :|: * [*] to “... The rule established these cases is the effect that against attorneys governed by the suits are principles apply negligent in other same actions. If attorney, duty, disregard neglects appear of his in a suit client, with the result that a is default damage, taken, it does not follow that client has suffered may entirely just, because and one that be notwithstanding would have been rendered the efforts attorney prevent it. It is said that is a there difference attorney anything between the of an who to do case fails client, and one who makes an inexcusable mistake attempting perceive any comply instructions; with but we do not principle for such
basis a distinction. In either upon case the burden is the client to has he *3 suffered.” ruling
The court affirmed the of the trial court which sus attorneys of in tained the demurrer an action them by judg to of initiated ment entered recover the amount a default paid client because of alleged attorneys to failure of the defend a suit. The basis of allege ruling was the failure of the client to that it had a attorney negligently suit, which meritorious defense interpose, judgment failed and that would not have judgment been recovered the client or that such would for a have been lesser amount. To the same effect App. McGovern, 566, 568, Feldesman 112 see P.2d v. 44 Cal. 2d (1941), 645, 647 cases cited therein. (Fla. App. 1973), Moreno, In Weiner 217, v. 271 219 So.2d after stating supra, the rule Price, established had been adopted legal malpractice approximately in states, cases 45 approved requiring, the Florida court the rule as its third prerequisite, proof proximate cause of loss to the See client. Wooddy (1970); Mudd, 234, also 45 Annot., v. 258 265 Md. A.2d 458 5; Annot., A.L.R.2d 45 A.L.R.2d been, support
It has said the better cases reasoned damages judgment award of the full amount of the suffered paid by timely appeal, the client where he can that a attorney negligently which the failed to file, would have resulted judgment entry judgment in a reversal of the in his favor Rodgers, as a Supp. matter of law. Better Homes, Inc. v. 195 F. (N.D. 1961). 93, 97 W. Va. present guided In our consideration of the case we are analogy governing types we find in the rules of cases. We right only have held that a of contribution arises when one paid tortfeasor has wrongdoers or settled a claim for which other Recapping, are also liable. Bartlett Inc., v. 207 Va. (1967). 789, 793, 193, 196 153 S.E.2d We have also held that there recovery indemnity obligation can be no on an where there has damage. been no actual loss or American National Bank v. (1938). Ames, 711, 748, 169 Va. 194 S.E. We see no exception principle reason to formulate an to this that would only apply attorneys legal malpractice who are defendants in actions. present
Insofar as the client case claims on judgment account of the default it is in the nature of a claim for indemnity attorney in which the client seeks to have the save judgment-creditor. him harmless from the debt owed to the But payment until the client has made a on that debt he has suffered damage. no actual loss or
Accordingly, we hold that when a client has suffered a money damages as result of his lawyer’s constitutes actual recoverable a suit to the extent such paid. has Here, been the motion for failed to allege damages. such actual failed, It therefore, to state a cause correctly action, and the trial court sustained the demurrer.
Affirmed. Poff, J., dissenting. join opinion.
I cannot this my analogy majority view, In the the find in the rules con- cerning right joint a tort-feasor’s to contribution from a tort- right feasor and the of an indemnitee the indemnitor is tenuous at best. The cases for which those rules are wholly fashioned are unlike the case at bar. Those cases con- essentially rights obligations cern the and of the immediate litigants; standards, involves societal a case infinitely impact. public policies In broader values, with and ways, legal profession unique quality practice of the the of the body politic. relationship between affects the welfare of the lawyer fiduciary relationship, his client is one which a a fidelity highest trust, the commands the to a most solemn lawyer expert utterly dependent upon his is the and the client is Any lawyer’s knowledge, a skill, his and his honor. breach of fiduciary duty injures integrity client, his demeans the of the public system profession, impairs in our confidence justice. Lawyers subject courts, are officers of the the supervisory powers of the In the courts. exercise of those powers, responsibility client, courts have a to the to the large profession, public to the rules at to make and enforce promote practice energize which excellence the of the law and rights lawyer-client obligations the distinctive of the relationship. Those rules need not be restricted rules made cases. precedential I am anxious about effect the rule the majority may adopt have. If the client has no cause of action paid judgment against larger until he has him, then the greater lawyer’s the client’s burden and the impunity; greater injury wrongfully inflicted, the less liability wrongdoer. penalize of The rule would seem to a lawyer negligence for his when it costs his client modest grant immunity but him his when results large pay. in a too for the Furthermore, client to when insolvency, forces into state of the rule may prejudice only general not the client but his creditors Finally, majority adopt well. the rule will force the client to postpone negligent lawyer choose whether to suit his paid judgment-creditor until he has in full or to institute separate lawyer partial payment suit for each he might makes. How the latter course be affected the doctrine judicata res one can wonder. adopt application I would a different rule and confine its legal malpractice cases such as the one at bar. The I rule favor allegation money judgment would hold that a client’s aof lawyer’s negligence suffered as the result of his *5 constitutes of actual allegation sufficient demurrer.
There is remote, speculative, little or contingent about a money judgment. Indeed, it is singular creature of dignity. Such a calls into existence what did not exist before, viz., liquidated Except debt. for jurisdictional defect, it the debt creates cannot collaterally be in every attacked and is actionable state. The recorded constitutes a continuing lien (securing the debt and the interest accrues) it on the debtor’s (presently assets owned and later acquired), a is lien that enforceable public Subject sale. to the limitations, statute of the debt survives the debtor’s death and may be personal revived representative. Code (Cum. 1976). 8-396 Supp. Some judgments, § as that here, suffered the client bankruptcy. survive 11 U.S.C. § I Opposing favor, attorney argues the rule might it enable a client who lawyer had won a verdict to enjoy a “windfall”. He might reasons that the client collect from his lawyer and, another, for one reason or pay fail his own judgment-creditor. This argument ignores remedies judgment-creditor. Moreover, available to a any danger of a “windfall” could be minimized appropriate instructions on remand.
Applying I favor, the rule I would reverse the restore the docket, motion for permit upon request to reinstate which, by several claims stipulation, were withdrawn prejudice, grant without client an opportunity the elements of the cause of action he has stated.