O'CONNELL v. Bean

Present: Carrico, C.J., Lacy, Hassell, Keenan, Kinser, and
Lemons, JJ., and Whiting, S.J.

MARJORIE A. O'CONNELL OPINION BY
SENIOR JUSTICE HENRY H. WHITING
v. Record No. 002900 January 11, 2002

DEBORAH L. BEAN

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Henry E. Hudson, Judge

This appeal raises jurisdictional and punitive damage

issues.

Marjorie A. O'Connell, an attorney, represented Deborah L.

Bean in a divorce suit filed in Virginia. Bean discharged

O'Connell as her attorney, obtained other counsel, and later

filed this action against O'Connell.

Bean's four-count motion for judgment alleged professional

negligence, actual fraud, constructive fraud, and breach of

fiduciary duty. Process was served on the Secretary of the

Commonwealth (the Secretary) as statutory agent of O'Connell, a

non-resident of Virginia, under the provisions of Code § 8.01-

329 (the service provision of the Long-Arm Statute, Code § 8.01-

328.1).

When O'Connell failed to file responsive pleadings within

the required time, Bean obtained a default judgment against her

on the issues of liability. In a later jury trial limited to

the damage issues at which O'Connell did not appear, Bean

obtained an award of $400,000 in compensatory damages and
$350,000 in punitive damages upon which a final judgment was

entered.

According to O'Connell, she discovered that the action had

been filed and that the judgments had been entered when a

newspaper reporter called her for comment. In a special

appearance four days after the entry of the final order,

O'Connell filed a motion to vacate that order, to set aside the

default judgment, and to quash service of process. Seven days

later, the court entered an order suspending the final judgment

pending further proceedings.

Although the court later denied O'Connell's motion to

vacate the default judgment as to liability, it set aside the

judgment as to damages and fixed that issue for a jury trial in

which both parties participated. The court entered final

judgment on the jury's award of $71,535.68 in compensatory

damages and $110,000 in punitive damages and we awarded

O'Connell this appeal.

I

O'Connell contends that the circuit court lacked in

personam jurisdiction to enter the default orders against her

because of material defects in obtaining service of process upon

the Secretary, including a failure to file an affidavit setting

forth O’Connell’s last known address. O'Connell also notes that

Bean could have had her personally served with process in the

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District of Columbia under the provisions of Code § 8.01-320 but

chose to use a method of constructive service of process under

the long-arm statute.

Bean responds that her attorney's clerical error in failing

to check a box in the Secretary's preprinted affidavit form,

which would have incorporated into the affidavit O'Connell's

last known address as shown in the caption of the form, did not

rise to the level of a material deviation from the requirements

of Code § 8.01-329. Bean further argues that the address shown

in the caption of the document was a sufficient statement under

oath of O'Connell's last known address. We disagree with Bean.

We have held that "[w]here a defendant has received

personal service of process, irregularity will not defeat the

court's jurisdiction, but if a statute provides for constructive

service, the terms of the statute authorizing it must be

strictly followed or the service will be invalid and any default

judgment based upon it will be void." Khatchi v. Landmark Rest.

Assoc., 237 Va. 139, 142, 375 S.E.2d 743, 745 (1989) (citations

omitted). The express language of Code § 8.01-329 clearly

requires that the affidavit, essential for valid constructive

service upon the Secretary, "shall set forth the last known

address of the person to be served." Code § 8.01-329(B). The

affidavit in this case merely states that O'Connell is a

nonresident but does not set forth her last known address. The

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recitation of O'Connell's purported address shown in the caption

of the document is not a sufficient statement under oath of

O'Connell's last known address.

Additionally, O'Connell testified that she never received

notice of Bean's action. Bean's evidence indicated, and the

trial court found, that the Secretary's notice to O'Connell of

the action was sent by registered mail, return receipt

requested, and would normally have been delivered to O'Connell's

office. However, the records in the Secretary's office could

not establish that notice of the action was delivered to

O'Connell or her office because those records did not contain

the post office's certified mail form which would have confirmed

that delivery. Further, the trial court did not find that

O'Connell or her office actually received the suit papers.

Because the omission of O'Connell's last known address in

the affidavit of Bean's attorney was a material failure to

comply with the terms of Code § 8.01-329, the court lacked in

personam jurisdiction over O'Connell at the time it entered the

default orders and judgments. Hence, those orders and judgments

are void, Khatchi, 237 Va. at 142, 375 S.E.2d at 745, and the

court should have set them aside under the following pertinent

provisions of Code § 8.01-428(A):

Upon motion of the plaintiff or judgment debtor and after
reasonable notice to the opposite party, his attorney of
record or other agent, the court may set aside a judgment

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 by default or a decree pro confesso upon the following
grounds: . . . (ii) a void judgment.

Therefore, we will reverse and set aside the default judgments.

II

Because O'Connell raises an issue of Bean's entitlement to

punitive damages that may arise upon the retrial, we will

consider it here. O'Connell argues that Bean cannot recover

punitive damages either for a breach of O'Connell's fiduciary

duty to Bean or for constructive fraud in misstating her ability

to competently represent Bean in the divorce suit. * According to

O'Connell, those alleged breaches arose from the contract and

were not independent, willful torts beyond the alleged breaches

of the implied duties arising under the contract. O'Connell

relies primarily on Kamlar Corp. v. Haley, 224 Va. 699, 707, 299

S.E.2d 514, 518 (1983), in which we held that punitive damages

could not be recovered for breach of a contract in the absence

of a willful independent tort.

*Since the jury awarded no compensatory damages for actual fraud
in the second trial on the issue of damages, there could be no
award of punitive damages based on the claim of actual fraud.
Valley Acceptance Corp. v. Glasby, 230 Va. 422, 432, 337 S.E.2d
291, 297 (1985). See also Zedd v. Jenkins, 194 Va. 704, 706-
707, 74 S.E.2d 791, 793 (1953). Neither party contests the
jury's finding and under the law of the case doctrine, both are
bound thereby. Lockheed Info. Mgmt. Sys. Co., Inc. v. Maximus.
Inc., 259 Va. 92, 108, 524 S.E.2d 420, 429 (2000); Searles v.
Gordon, 156 Va. 289, 294-98, 157 S.E. 759, 761-62 (1931).
Accordingly, the issue of actual fraud will not be relitigated
in any subsequent trial. Id.

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 Bean responds that "[s]he never [pled] that O'Connell also

breached her contractual obligation to Bean," and that these

counts of her action were claims of negligence and breach of

fiduciary duty, neither of which is a contractual claim. We

disagree with Bean.

But for the contract, O'Connell would have had no duties to

Bean. Whatever duties O'Connell owed Bean arose from their

attorney-client relationship, which was created by their

contract. Lyle, Siegel, Croshaw & Beale v. Tidewater Capital

Corp., 249 Va. 426, 432, 457 S.E.2d 28, 32 (1995). Implicit in

a professional's contract of employment is the professional's

duty to "'exercise the care of those ordinarily skilled in the

business,'" Nelson v. Commonwealth, 235 Va 228, 235, 368 S.E.2d

239, 243 (1988) (quoting Surf Realty Corp. v. Standing, 195 Va.

431, 442-43, 78 S.E.2d 901, 907 (1953)) (architects), and to

"exercise a reasonable degree of care, skill, and dispatch in

carrying out the business for which he is employed," Ortiz v.

Barrett, 222 Va. 118, 126, 278 S.E.2d 833, 837 (1981)

(attorneys).

Even though the contractually implied duties of due care

and fiduciary responsibility employ tort concepts, they, and

principles relating thereto, may be applied to legal malpractice

actions. Lyle, Siegel, Croshaw & Beale, 249 Va. at 432, 457

S.E.2d at 32 (contributory negligence). Nevertheless, "an

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action for the negligence of an attorney in the performance of

professional services, while sounding in tort, is an action for

breach of contract." Oleyar v. Kerr, 217 Va. 88, 90, 225 S.E.2d

398, 400 (1976) (contract statute of limitation applied to

malpractice action arising from attorney's negligent title

examination).

Hence, we conclude that Bean's assertions of breaches of

fiduciary duty and constructive fraud, while sounding in tort,

are actions for breaches of the implied terms of O'Connell's

contract. For this reason, punitive damages may not be awarded

for any such breaches in the absence of an independent, willful

tort giving rise to such damages. Kamlar Corp., 224 Va. at 707,

299 S.E.2d at 518.

For the foregoing reasons, we will reverse the judgment and

remand the case for a new trial.

Reversed and remanded.

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