Williams v. Joynes

PRESENT: All the Justices


LEO WILLIAMS

v.   Record No. 080751                     OPINION BY
                                     JUSTICE BARBARA MILANO KEENAN
                                          June 4, 2009
LOUIS N. JOYNES, II, ET AL.


        FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                    Dean W. Sword, Jr., Judge

     In this legal malpractice action, we consider whether the

circuit court erred in granting summary judgment for the

defendant attorneys.   The circuit court held that the

plaintiff’s failure to file a personal injury action in a

foreign jurisdiction was a superseding event, which severed the

link of proximate causation between the defendants’ failure to

timely file a personal injury action in Virginia and the

plaintiff’s loss of his personal injury claim.

     In October 2003, Leo Williams retained Louis N. Joynes, II

and David S. Dildy of The Joynes & Gaidies Law Group, P.C.

(collectively, Joynes) to represent him regarding a personal

injury claim.   The claim was based on a May 12, 2003 automobile

accident involving Williams and two other drivers, Alan D.

Brown, a Virginia resident, and Patrick Kiker, a Maryland

resident.   The collision occurred while Williams’ vehicle was

stopped in traffic in Fairfax County.   A truck driven by Kiker

and owned by Millstone Enterprises, Inc. (Millstone) hit the
rear of Brown’s vehicle, which in turn struck Williams’ vehicle

from behind.

     As a result of the impact, Williams sustained injuries to

his neck and spine, including a herniated vertebral disc that

required surgery.   Williams alleged that due to the injuries he

sustained in the accident, he incurred more than $100,000 in

medical expenses, was unable to work for 16 months, and lost

more than $200,000 in income and benefits.

     On June 1, 2005, Joynes filed a motion for judgment on

Williams’ behalf against Brown, Kiker, and Millstone in the

Circuit Court of the City of Virginia Beach.   Two months later,

Joynes notified Williams that the lawsuit had not been timely

filed within the two-year statute of limitations governing

personal injury actions in Virginia.   Joynes advised Williams

that although his Virginia action was time-barred, Williams

still might be able to file an action against Kiker and

Millstone in Maryland, based on that state’s three-year statute

of limitations.

     Joynes conceded, however, that because Brown was a Virginia

resident, Brown would not be subject to suit in Maryland.

Joynes further advised Williams that he may have a malpractice

claim against Joynes, and that Williams should consider hiring

other counsel to explore this possibility.




                                 2
     In January 2006, Williams filed a complaint in the Circuit

Court of the City of Portsmouth alleging legal malpractice

against Joynes.   Williams alleged that “[b]ut for the neglect

and careless actions” of Joynes in failing to file a timely

Virginia action, Williams would have recovered damages against

Brown, Kiker, and Millstone.

     Williams further alleged that he filed the legal

malpractice action after having spent “countless hours” over a

period of several months trying to engage a Maryland attorney to

pursue the personal injury claim in that state.   Williams

asserted that most of the Maryland attorneys he consulted

advised him that “there were too many problems with bringing the

case in Maryland.”   Williams asserted that these “problems”

included the increased expense of litigating in a foreign

jurisdiction, the unavailability in Maryland of “necessary”

witnesses who were Virginia residents, and the unique challenges

posed in trying a case with one of two primary tortfeasors

absent from the courtroom.   Williams maintained that he acted on

this advice when he decided not to file a legal action in

Maryland.

     In response, Joynes filed a motion for summary judgment.

Joynes asserted that Williams’ independent decision not to file

a Maryland lawsuit severed any causal link between Joynes’

negligence and the loss of Williams’ personal injury action.


                                 3
     After conducting a hearing on the summary judgment motion,

the circuit court issued a letter opinion holding that Joynes

was entitled to partial summary judgment.   The circuit court

observed that Williams had conceded that he could have filed a

timely action against Kiker and Millstone in Maryland.   The

circuit court reasoned that because Williams still had a viable

cause of action in Maryland after Joynes’ negligent failure to

file a timely action in Virginia, Williams’ decision not to file

suit in Maryland was “an intervening act that sever[ed] any

connection between the negligent act of the defendants and the

loss claimed by [Williams].”   The circuit court concluded that,

therefore, Williams’ own inaction was the superseding cause of

the loss of his personal injury claim.

     The circuit court additionally held, however, that Williams

was entitled to recover from Joynes the expenses Williams

incurred in seeking legal advice in Maryland as a direct result

of Joynes’ negligence.   The circuit court awarded judgment for

Williams in the amount of $423.76, for the expenses Williams

incurred in his attempt to obtain an attorney to litigate an

action in Maryland.   Williams appealed from the circuit court’s

judgment.

     On appeal, Williams argues that even if he could have filed

a timely action in Maryland, his abandonment of that right was

not a superseding cause of his damages.   Williams contends that


                                 4
the circuit court wrongly assumed that a Maryland lawsuit would

have been the qualitative equivalent of the time-barred Virginia

action, and ignored the fact that one of the two primary

tortfeasors was not subject to suit in Maryland.   Williams

maintains that based on these errors, the circuit court

incorrectly decided the issue of superseding causation.

Williams also argues that the question whether he should have

filed a lawsuit in Maryland presented a jury question that

properly related to mitigation of damages, not to proximate

causation.

     In response, Joynes observes that there was a time period

after Joynes’ negligent failure to timely file the Virginia

action during which Williams had a viable claim in Maryland

against Kiker and Millstone.   Joynes argues that, therefore,

Joynes’ failure to timely file the Virginia action was not a

proximate cause of Williams’ loss of the right to bring a

personal injury action.   Thus, Joynes contends, the circuit

court properly held that Williams’ own inaction was a

superseding cause of Williams’ injury that relieved Joynes of

liability for Williams’ loss of the personal injury action.

Joynes additionally contends that it would be “impermissibly

speculative” to ask a jury to consider the “qualitative[]”

differences between the time-barred Virginia litigation and a




                                 5
hypothetical Maryland lawsuit.   We disagree with Joynes’

analysis.

     In deciding whether the circuit court erred in awarding

partial summary judgment to Joynes, certain general principles

govern our inquiry.   A cause of action for legal malpractice has

three separate elements: 1) the existence of an attorney-client

relationship creating a duty; 2) a breach of that duty by the

attorney; and 3) damages that were proximately caused by the

attorney’s breach of duty.   Shipman v. Kruck, 267 Va. 495, 501,

593 S.E.2d 319, 322 (2004); Rutter v. Jones, Blechman, Woltz &

Kelly, P.C., 264 Va. 310, 313, 568 S.E.2d 693, 695 (2002);

Allied Productions v. Duesterdick, 217 Va. 763, 766, 232 S.E.2d

774, 776 (1977).   A plaintiff in a legal malpractice action

bears the burden of proving all three elements.   See Campbell v.

Bettius, 244 Va. 347, 352, 421 S.E.2d 433, 436 (1992); Duvall,

Blackburn, Hale & Downey v. Siddiqui, 243 Va. 494, 497, 416

S.E.2d 448, 450 (1992).

     A legal malpractice action usually involves a “case within

the case,” in which the plaintiff must present evidence that

would have been presented in the underlying action.   Whitley v.

Chamouris, 265 Va. 9, 11, 574 S.E.2d 251, 252-53 (2003).     There

must be sufficient evidence of a breach of duty and of proximate

causation and damages to convince the trier of fact in the

malpractice case that, in the absence of the attorney’s alleged


                                 6
negligence, the plaintiff would have prevailed in the underlying

action.   Id. at 11, 574 S.E.2d at 252-53; Campbell, 244 Va. at

352, 421 S.E.2d at 436.

     We have stated that a “proximate cause” is an act or

omission that, in natural and continuous sequence unbroken by a

superseding cause, produces a particular event and without which

that event would not have occurred.     Williams v. Le, 276 Va.

161, 167, 662 S.E.2d 73, 77 (2008); Jenkins v. Payne, 251 Va.

122, 128, 465 S.E.2d 795, 799 (1996); Beale v. Jones, 210 Va.

519, 522, 171 S.E.2d 851, 853 (1970).    An event may have more

than one proximate cause and, under certain circumstances, a

proximate cause may also be a superseding cause that severs the

link of proximate causation between the initial negligent act

and the resulting harm, thereby relieving the initial tortfeasor

of liability.   Williams, 276 Va. at 167, 662 S.E.2d at 77;

Jenkins, 251 Va. at 128-29, 465 S.E.2d at 799; Coleman v.

Blankenship Oil Corp., 221 Va. 124, 131, 267 S.E.2d 143, 147

(1980).

     A superseding cause occurs only when an intervening act so

entirely supplants the operation of the initial tortfeasor’s

negligence that the intervening act alone, without any

contributing negligence by the initial tortfeasor in the

slightest degree, causes the injury.     Williams, 276 Va. at 167,

662 S.E.2d at 77; Atkinson v. Scheer, 256 Va. 448, 454, 508


                                 7
S.E.2d 68, 72 (1998); Jenkins, 251 Va. at 129, 465 S.E.2d at

799; Coleman, 221 Va. at 131, 267 S.E.2d at 147.    Therefore, a

superseding cause is a new cause of a plaintiff’s injury,

becoming the only proximate cause of that injury.    Atkinson, 256

Va. at 454, 508 S.E.2d at 72; Jenkins, 251 Va. at 128-29, 465

S.E.2d at 799; Maroulis v. Elliott, 207 Va. 503, 510-11, 151

S.E.2d 339, 345 (1966).   An intervening act will never be deemed

a superseding cause if the intervening act was set in motion by

the initial tortfeasor’s negligence.   Philip Morris Inc. v.

Emerson, 235 Va. 380, 397, 368 S.E.2d 268, 277 (1988); Coleman,

221 Va. at 131, 267 S.E.2d at 147; Jefferson Hospital, Inc. v.

Van Lear, 186 Va. 74, 81, 41 S.E.2d 441, 444 (1947).

     In the present case, the circuit court held that Williams’

failure to file a lawsuit in Maryland was a superseding cause

“that sever[ed] any connection between the negligent act of

[Joynes] and the loss claimed by [Williams].”   Thus, in deciding

this issue by summary judgment, the circuit court concluded as a

matter of law that Williams’ failure to initiate litigation in

Maryland became the sole proximate cause of his lost personal

injury claim, relieving Joynes of any liability for Joynes’

failure to timely file the Virginia lawsuit.

     In reaching this conclusion, however, the circuit court

misapplied the principle of superseding cause in two distinct

respects.   First, the circuit court’s analysis did not account


                                 8
for the fact that Joynes’ own negligent failure to file a

Virginia action set in motion the need for Williams to consider

filing a Maryland lawsuit.   As a matter of law, this fact alone

defeated Joynes’ assertion that Williams’ failure to file a

Maryland lawsuit was a superseding cause that relieved Joynes of

liability for Williams’ loss of his personal injury action.     See

Williams, 276 Va. at 167, 662 S.E.2d at 77; Philip Morris Inc.,

235 Va. at 397, 368 S.E.2d at 277; Jefferson Hospital, Inc., 186

Va. at 81, 41 S.E.2d at 444.

     Second, the circuit court’s analysis failed to consider the

undisputed fact that Brown, one of the two primary tortfeasors

in the underlying accident, was not subject to suit in Maryland.

Having lost forever the right to bring a personal injury action

against Brown because of Joynes’ negligence, Williams’ decision

regarding Maryland litigation could not have severed completely

the link of proximate causation between Joynes’ negligence and

Williams’ loss of his personal injury claim against Brown.

Accordingly, we hold that the circuit court erred in granting

partial summary judgment to Joynes because, as a matter of law,

Williams’ failure to file a Maryland lawsuit was not a

superseding event severing the link of proximate causation

between Joynes’ negligence and the resulting harm suffered by

Williams.   See Atkinson, 256 Va. at 454, 508 S.E. 2d at 72;




                                 9
Jenkins, 251 Va. at 128-29, 465 S.E.2d at 799; Maroulis, 207 Va.

at 510-11, 151 S.E.2d at 345.

     Finally, we observe that the circuit court’s award of

partial summary judgment was based solely on the issue of

superseding causation and did not address other issues of

proximate causation or the question of mitigation of damages.

Therefore, although our holding here removes the issue of

superseding causation from the case, all other issues, including

the question whether Williams’ failure to initiate a Maryland

action permits a defense that he failed to mitigate his damages,

remain issues for resolution at trial of this case.

     For these reasons, we will reverse the circuit court’s

judgment, including its award of partial summary judgment in

favor of Joynes, and will remand the case for trial on the

merits.

                                           Reversed and remanded.




                                10