Cox v. Geary

Present: Lacy, Keenan, Koontz, Kinser, Lemons, Agee, JJ.,
and Russell, S.J.

JEFFERY DAVID COX

v. Record No. 050333 OPINION BY JUSTICE CYNTHIA D. KINSER
January 13, 2006
ROBERT P. GEARY, ET AL.

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Paul F. Sheridan, Judge

The appellant, Jeffery David Cox, challenges the

judgment of the circuit court dismissing, with prejudice,

his legal malpractice claims against Robert P. Geary, John

F. McGarvey, Michael Morchower, Lee W. Kilduff, and the law

firm of Morchower, Luxton & Whaley (collectively the

Attorneys).1 The circuit court held, among other things,

that Cox suffered “one indivisible injury for which he had

but one claim or cause of action.” We agree and will

affirm the circuit court’s judgment.

I. FACTS AND PROCEEDINGS

In 1991, Cox was convicted in the Circuit Court of the

City of Richmond of abduction, murder, and burglary. He

was subsequently sentenced to a term of incarceration for

life plus 50 years. At trial, Geary and McGarvey

represented Cox as court-appointed counsel. After his

1
Hereinafter, all references to Morchower and Kilduff
will include the law firm of Morchower, Luxton & Whaley,
unless otherwise indicated.

1
convictions, Cox retained Morchower and Kilduff to

represent him on appeal.

In 1997, Cox petitioned for a writ of habeas corpus.2

In an order dated November 14, 2001, the Circuit Court of

the City of Richmond granted Cox habeas corpus relief.3 The

next day, in the criminal case of Commonwealth v. Cox, the

Commonwealth and Cox jointly moved to vacate the 1991

convictions and dismiss the underlying indictments. The

Circuit Court of the City of Richmond granted the motion

and entered an order vacating Cox’s 1991 convictions,

dismissing the indictments, and releasing Cox from custody.

Id. At the time of his release, Cox had served

approximately 11 years of his sentence.

In December 2001, Cox requested assistance from a

member of the Senate of Virginia in procuring compensation

from the Commonwealth for his wrongful incarceration. The

General Assembly approved “An Act for the relief of Jeffery

2
The 1997 petition for a writ of habeas corpus was the
third such petition filed by Cox.
3
The circuit court initially dismissed Cox’s petition
for a writ of habeas corpus. Cox petitioned for an appeal
to this Court from that judgment. While his petition for
appeal was pending, the parties advised the Court that they
had settled the matters in controversy, and we therefore
remanded the habeas petition to the circuit court for entry
of an order carrying out the terms of the settlement. In
the circuit court, the Attorney General of Virginia, who
represented the respondent in the habeas proceeding, moved
to grant Cox a writ of habeas corpus.

2
D. Cox” (the Act) on April 7, 2002. 2002 Va. Acts ch. 746.

In relevant part, the Act stated:

Whereas, Jeffery D. Cox (Cox) was arrested
on October 18, 1990 in the City of Richmond and
charged with First Degree Murder, Abduction with
Intent to Defile and Breaking and Entering; and

Whereas, on February 13, 1991, Cox was
convicted of these charges and sentenced to life
imprisonment plus fifty years; and

. . .

Whereas, new evidence was revealed which
supported Cox’s innocence of the crimes including
confessions by other parties; and

Whereas, based on this new evidence, the
Office of the Attorney General reached a
settlement agreement with Cox resulting in the
Richmond Circuit Court entering an order on
November 14, 2001 vacating the convictions; and

. . .

Whereas at the time of his arrest, Cox was
employed as an air conditioning repairman and was
working towards obtaining his tradesman’s
certification as an electrician; and

Whereas, Cox has lost income and a promising
career during his eleven years of incarceration;
and

Whereas, Cox has also suffered severe
physical, emotional and psychological damage as a
result of this wrongful incarceration and has no
other means to obtain adequate relief except by
action of this body; now, therefore,
Be it enacted by the General Assembly of
Virginia:

1. § 1. That there shall be paid for the relief
of Jeffery D. Cox from the general fund of the
state treasury, upon execution of a release of

3
 all claims he may have against the Commonwealth
or any agency, instrumentality, officer,
employee, or political subdivision in connection
with the aforesaid occurrence, (i) the sum of
$350,000 to be paid to Jeffery D. Cox on or
before August 1, 2002 . . . and (ii) an annuity
for the primary benefit of Jeffery D. Cox . . .
in the cumulative amount of $400,000.

As required by the terms of the Act, Cox subsequently

executed a document releasing

all claims [Cox] may have against the
Commonwealth or any agency; instrumentality;
officer; employee or political subdivision of the
Commonwealth in connection with [his] arrest,
conviction and incarceration during the time
period 1990-2001, subsequently vacated by the
Richmond Circuit Court, and more specifically
described in the Virginia Acts of Assembly 2002.

Two years later, in November 2003, Cox filed the

motion for judgment in the present case alleging that the

Attorneys each “fail[ed] to comply with the applicable

standard of care as . . . Cox’s attorney” and breached

their respective “contract of representation” with Cox.

Cox sought damages from the Attorneys, jointly and

severally, for

punishment; incarceration; personal injuries;
pain and suffering; severe mental anguish;
emotional distress; loss of income; humiliation,
indignities and embarrassment; degradation;
injury to reputation; permanent loss of natural
psychological development; and restrictions on
all forms of personal freedom including but not
limited to diet, sleep, personal contact,
educational opportunity, vocational opportunity,
athletic opportunity, personal fulfillment,

4
 sexual activity, family relations, recreation,
travel, enjoyment and expression.

The Attorneys countered with numerous defensive

pleadings, motions, and special pleas. After hearing

argument and considering the parties’ memoranda on the

various motions and other filings, the circuit court

dismissed Cox’s claims and the motion for judgment with

prejudice. In its final order, the circuit court made the

following rulings:

1. This Court has subject matter
jurisdiction to entertain the claims asserted by
the plaintiff in the Motion for Judgment by which
he initiated this action (the “Motion for
Judgment”).

2. The plaintiff has standing to bring this
action.

3. The claims asserted by the plaintiff in
the Motion for Judgment are not time barred.

4. The claims asserted by the plaintiff in
the Motion for Judgment are not barred by
collateral estoppel.

5. The injuries suffered by the plaintiff
from his incarceration referred to in the Motion
for Judgment constitute one indivisible injury
for which he had but one claim or cause of
action.

6. The habeas relief granted to the
plaintiff by this Court was based on newly
discovered evidence.

7. An Act for the Relief of Jeffery D. Cox
preempted any cause of action the plaintiff may
otherwise have had for his incarceration, and
there is no civil action that survives it.

5
 8. The claims asserted by the plaintiff in
the Motion for Judgment are barred and precluded
by:

a. the doctrine of waiver;
b. the doctrine of estoppel; and
c. the plaintiff’s election of remedies.

The circuit court also denied Cox’s motion to reconsider.

Cox appeals from the circuit court’s judgment.

II. ANALYSIS

On appeal, Cox assigns error to the rulings of the

circuit court adverse to him. One issue is dispositive—

whether the circuit court erred in finding that the

injuries suffered by Cox as a result of his wrongful

incarceration constitute a single, indivisible injury for

which he had one claim or cause of action.

It is a generally recognized principle that there can

be only one recovery of damages for a single wrong or

injury. Pennington v. Bluefield Orthopedics, P.C., 419

S.E.2d 8, 13 (W. Va. 1992); see also McLaughlin v. Siegel,

166 Va. 374, 377, 185 S.E. 873, 874 (1936) (“the injured

party is entitled to but one satisfaction for the same

cause of action”). Cox, however, asserts that he had two

separate injuries, one caused by the Commonwealth and its

officers and employees (the Commonwealth) and the other

caused by the Attorneys. He further contends that, for

6
each injury, different types of relief would be available

and that any determination about the basis of the General

Assembly’s compensation to Cox would be an exercise in

speculation. We do not agree.

The injury for which Cox received compensation from

the Commonwealth, through the Act, was his wrongful

incarceration. The damages sustained as a result of that

injury, as described in the Act, included loss of income

and severe physical, emotional, and psychological distress.

In the present legal malpractice action, the injury

suffered by Cox as a result of the Attorneys’ alleged

“failure to exercise a reasonable degree of care, skill and

diligence in their legal representation of . . . Cox and by

breaching their contracts of representation with him” was

his wrongful incarceration. Moreover, the elements of

damage Cox seeks in this action are the same as those for

which he received compensation from the Commonwealth.

Cox does not argue that the type of injuries for which

the General Assembly compensated him differs from the type

of injuries he currently alleges. Nor does he seek in his

motion for judgment punitive damages or attorneys’ fees,

both of which would have differed from his claim against

the Commonwealth. In other words, Cox has made no attempt

to differentiate between the injury or the damages caused

7
by the negligence of the Commonwealth and the injury or

damages suffered by Cox as a result of the Attorneys’

alleged legal malpractice. See Dwyer v. Yurgaitis, 224 Va.

176, 180, 294 S.E.2d 792, 794 (1982) (because the plaintiff

never distinguished between the injuries sustained in two

collisions, she suffered an indivisible injury); Dickenson

v. Tabb, 208 Va. 184, 192, 156 S.E.2d 795, 801 (1967)

(“[a]s [the plaintiff’s] injuries were not susceptible of

apportionment . . . [they] were indivisible”); see also

Maroulis v. Elliott, 207 Va. 503, 511, 151 S.E.2d 339, 345

(1966) (“ ‘[w]here separate and independent acts of

negligence of two parties are the direct cause of a single

injury to a third person and it is impossible to determine

in what proportion each contributed to the injury, either

or both are responsible for the whole injury’ ”) (quoting

Murray v. Smithson, 187 Va. 759, 764, 48 S.E.2d 239, 241

(1948)). Thus, we conclude that the circuit court

correctly determined that Cox sustained a single,

indivisible injury.4

4
We note that Code § 8.01-443 allows a plaintiff to
bring separate actions against several joint wrongdoers and
proceed to judgment in each action. However, the
plaintiff’s acceptance of payment in satisfaction of such
judgment discharges all joint wrongdoers. Cox does not
argue that this statute salvages his legal malpractice
action against the Attorneys. The legislative policy
reflected in Code § 8.01-443, however, is in full accord

8
 It is helpful to compare the nature of Cox’s legal

malpractice action, i.e., arising out of the Attorneys’

defense of criminal charges, with a legal malpractice

action arising out of representation in a civil case. In

the former, wrongful incarceration was the sole injury

suffered by Cox as a result of the alleged negligent acts

of the Commonwealth and/or the Attorneys’ alleged breach of

their respective contract of representation. Indeed, a

showing of wrongful incarceration is an element of a cause

of action for legal malpractice arising out of the defense

of a criminal charge. See Adkins v. Dixon, 253 Va. 275,

282, 482 S.E.2d 797, 801 (1997) (a plaintiff must prove

that he/she obtained post-conviction relief as part of a

cause of action for a defense attorney’s malpractice). In

a typical civil action, the underlying injury is not

usually the same as the injury caused by subsequent legal

malpractice in representing a party in that action. For

example, a plaintiff’s personal injuries arising from an

automobile accident constitute the wrong suffered and the

injury at issue in a subsequent civil action, but the

failure of that plaintiff’s attorney to file the action

with the principle that there can be only one recovery for
a single, indivisible wrong. Cox, of course, recovered for
his injury by accepting the compensation provided in the
Act and executing the release.

9
within the applicable statute of limitations would not also

be a cause of the underlying physical injuries. The

plaintiff would be separately wronged by the attorney’s

malpractice. Such is not the situation with regard to the

injury sustained by Cox.

This distinction is borne out by our decision in

Katzenberger v. Bryan, 206 Va. 78, 141 S.E.2d 671 (1965).

There, the purchasers of real property filed a motion for

judgment against an attorney who had examined and certified

title to the parcel of property they had contracted to

purchase. Id. at 79, 141 S.E.2d at 672. At the time the

suit was filed, the purchasers had already settled a claim

against the sellers of the property for breach of the

warranty of title. Id. The attorney filed a plea of

accord and satisfaction, arguing that the settlement of the

claim against the sellers was a bar to any further

proceedings in the action against him. Id. In the motion

for judgment filed against the sellers, “the [purchasers]

alleged that they were . . . ‘without legal title to a

portion of the property purported to be conveyed’ and were

‘without lawful means of ingress and egress’ and were ‘in

danger of being deprived of the use and enjoyment of the

entire property.’ ” Id. at 82, 141 S.E.2d at 674. In the

motion for judgment filed against the attorney,

10
 the [purchasers] alleged that they were damaged
because they were “caused to spend a large sum of
money for property to which they did not receive
legal title” and to expend “large sums of money
in the erection of improvements on property to
which they did not have lawful means of ingress
and egress.”

Id.

We concluded that the settlement of the cause of

action against the sellers was not an accord and

satisfaction of the purchasers’ claim against the attorney.

Id. at 84, 141 S.E.2d at 675. The purchasers were wronged

by the sellers because the sellers “breached their covenant

that they had the right to convey the land,” and the

purchasers were separately wronged by the attorney because

he “breached his duty to use due care in examining the

title to the property.” Id. at 85, 141 S.E.2d at 676. We

did, however, hold that the purchasers could not have a

double recovery by collecting full compensation in the

second action if they had been paid for a particular

element of damage in the first action. Id.

Later in Cauthorn v. British Leyland, U.K., Ltd., 233

Va. 202, 355 S.E.2d 306 (1987), we explained our decision

in Katzenberger:

[o]ur decision . . . did not rest solely on the
distinction between the theories of recovery; it was
also based on the difference between the relief sought
in the two actions. In either proceeding, the
purchasers could have recovered the value of the

11
 portion of the property not conveyed and the
diminution in the value of the residue caused by the
loss of ingress and egress over the portion not
conveyed. But a third element of damages was not
common to both causes of action. The loss of the use
of certain improvements to the property made by the
purchasers was an item of consequential damages not
available in the contract action against the sellers
but recoverable in the tort action as proximately
resulting from the negligence of the lawyer. Thus,
the purchasers’ damages were not identical in the two
actions and did not arise from a single indivisible
injury; therefore, their release of the sellers was
not an accord and satisfaction of their claim against
the lawyer.

Id. at 206, 355 S.E.2d at 308.

The difference in the relief sought was likewise a

factor in our decision in Hiss v. Friedberg, 201 Va. 572,

112 S.E.2d 871 (1960), another case involving litigation

arising out of the purchase of real estate. There, the

purchasers filed a suit against the sellers for breaches of

warranty and covenants of title and joined in as defendants

their attorneys, claiming damages for the attorneys’ breach

of the employment contract and violation of an escrow

agreement. Id. at 573, 112 S.E.2d at 873. The purchasers

settled their claims against the sellers, but the suit

continued against the attorneys. Id. The purchasers

sought to recover their expenses, including counsel fees

that they had incurred in the litigation against the

sellers. Id.

12
 On appeal, the attorneys argued that the release of

the sellers and dismissal of the suit against them barred

any recovery by the purchasers from the attorneys. Id. at

576, 112 S.E.2d at 874. We disagreed with the attorneys

and affirmed the trial court’s award of damages to the

purchasers. Id. at 579, 112 S.E.2d at 877. In doing so,

we stated that the sellers were “liable for damages flowing

from their failure to deliver possession of the property as

agreed.” Id. at 576, 112 S.E.2d at 875. In the suit

against the sellers, the purchasers could not recover as

damages the amount of counsel fees incurred in that

litigation. Id. at 576–77, 112 S.E.2d at 875. In

contrast, the attorneys breached their contractual

obligation to insure that the purchasers obtained immediate

possession of the property, and as a result of that breach,

the purchasers had to resort to litigation against the

sellers. Id. at 577, 112 S.E.2d at 875.

In the present legal malpractice action, Cox, unlike

the purchasers in Katzenberger and Hiss, does not seek to

recover from the Attorneys an element of damage different

from the damages provided by the Act, such as his

litigation expenses incurred in obtaining habeas corpus

relief. In the Act, the General Assembly stated that it

was compensating Cox for the “physical, emotional and

13
psychological” damages arising out of his “wrongful

incarceration.” That injury, and those damages, are the

same as Cox now alleges were caused by the Attorneys’ legal

malpractice. As stated earlier, Cox has not made any

differentiation between the damages under the Act and the

damages under his legal malpractice claim.

We now turn to the release executed by Cox upon

receiving compensation pursuant to the Act and its effect,

if any, on this legal malpractice action in light of our

conclusion that Cox suffered a single, indivisible injury.

Cox argues that the provisions of Code § 8.01-35.1 are

applicable and therefore the release of the Commonwealth

did not discharge the Attorneys from their liability. In

relevant part, Code § 8.01-35.1(A)(1) states that “[w]hen a

release or covenant not to sue is given in good faith to

one of two or more persons liable in tort for the same

injury, [i]t shall not discharge any of the other tort-

feasors from liability for the injury.” The premise of

Cox’s argument is that a legal malpractice action is based

in tort, and the Attorneys and the Commonwealth are joint

tortfeasors. Again, we do not agree.

“A cause of action for legal malpractice requires the

existence of an attorney-client relationship which [gives]

rise to a duty, breach of that duty by the defendant

14
attorney, and that the damages claimed by the plaintiff

client must have been proximately caused by the defendant

attorney’s breach.” Rutter v. Jones, Blechman, Woltz &

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

Thus, “an 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); accord

Shipman v. Kruck, 267 Va. 495, 501, 593 S.E.2d 319, 322

(2004). It is the contract formed between an attorney and

a client that gives rise to the attorney-client

relationship; but for the contract, the attorney owes no

duty to the client. O’Connell v. Bean, 263 Va. 176, 180,

556 S.E.2d 741, 743 (2002).

Implicit in this contractual relationship is the duty

to “‘exercise a reasonable degree of care, skill, and

dispatch in carrying out the business for which [the

attorney] is employed.’” Id. at 181, 556 S.E.2d at 743

(quoting Ortiz v. Barrett, 222 Va. 118, 126, 278 S.E.2d

833, 837 (1981)). Although “the contractually implied

duties of due care and fiduciary responsibility employ tort

concepts,” those concepts and other principles relating to

torts are applicable in legal malpractice actions. Id. at

181, 556 S.E.2d at 743; see, e.g., Lyle, Siegel, Croshaw &

15
Beale, P.C. v. Tidewater Capital Corp., 249 Va. 426, 432,

457 S.E.2d 28, 32 (1995) (applying the principle of

contributory negligence). The cause of action,

nevertheless, is one for breach of contract. Oleyar, 217

Va. at 90, 225 S.E.2d at 400.

Cox erroneously relies on our decisions in Shipman and

Lyle for the proposition that a cause of action for legal

malpractice is a tort claim. In both cases, this Court

said that legal malpractice sounds in tort, Shipman, 267

Va. at 501, 593 S.E.2d at 322; Lyle, 249 Va. at 432, 457

S.E.2d at 32, but we also reiterated the attorney-client

contractual relationship. Id. In Shipman, we held, as we

had previously, that “[t]he statute of limitations for

legal malpractice actions is the same as those for breach

of contract because although legal malpractice actions

sound in tort, it is the contract that gives rise to the

duty.” 267 Va. at 501, 593 S.E.2d at 322. Similarly, in

Lyle, where we held that the defense of contributory

negligence is available in legal malpractice actions, 249

Va. at 432, 457 S.E.2d at 32, we explained:

[T]he attorney-client relationship is formed by a
contract. Nonetheless, the duty upon the
attorney to exercise reasonable care, skill, and
diligence on behalf of the client arises out of
the relationship of the parties, irrespective of
a contract, and the attorney’s breach of that

16
 duty, i.e., the appropriate standard of care,
constitutes negligence.

Id. We further note that Cox, in his motion for judgment,

employed the tort concept of “applicable standard of care”

but also alleged as to each of the Attorneys a breach of

their respective “contract of representation.”

Since Cox’s action against the Attorneys for their

alleged negligence in the performance of their professional

services is an action for breach of contract, the Attorneys

are not joint tortfeasors with the Commonwealth.

Accordingly, the provisions of Code § 8.01-35.1, which

expressly apply only when “two or more persons [are] liable

in tort for the same injury,” have no bearing on the

question of the effect, if any, of the release executed by

Cox. To answer that question, we therefore turn to the

common law.

In Cauthorn, 233 Va. at 203, 355 S.E.2d at 307, a

minor was injured in an automobile collision. After

settling with the insurance companies that provided

coverage to the operator and owner of the vehicle in which

the minor was a passenger,5 the minor’s guardian filed an

action against the automobile manufacturer, the wheel

manufacturer, and the dealer who sold the automobile,

5
A circuit court approved the settlement.

17
alleging negligence and breach of warranties of

merchantability and fitness. Id. at 204, 355 S.E.2d at

307. The defendants filed special pleas asserting that the

court-approved settlement and release also released the

defendants of any liability for the minor’s personal

injuries resulting from the automobile accident. Id.

On appeal, we concluded that the minor “sustained

injuries which, although they may have had more than a

single cause, constituted a single, indivisible injury.

[The] settlement with and release of the insurance

companies and their insureds constituted an accord and

satisfaction of [the minor’s] cause of action for her

single indivisible injury.” Id. at 205, 355 S.E.2d at 308.

In reaching this decision, we noted that “[p]rior to the

enactment of Code § 8.01-35.1 in 1979, the rule of law in

Virginia was that a release of one joint tortfeasor

released all joint tortfeasors.” Id. at 204, 355 S.E.2d at

307. That rule, as we recognized, references the parties

as “joint tortfeasors,” but we held that “its application

to a particular case does not depend upon their

relationship as joint tortfeasors.” Id. Thus, even though

the minor had two causes of action, one sounding in tort

and the other in contract, the Court held “that where there

is one indivisible injury, as here, for which settlement

18
has been consummated, unconditional release of one

allegedly liable for the injury bars recovery against

others also allegedly liable, regardless of the theory upon

which liability is predicated.” Id. at 207, 355 S.E.2d at

309 (emphasis added). Applying the principles taught in

Cauthorn, we conclude that Cox, having suffered a single,

indivisible injury for which he received compensation under

the Act, and having unconditionally released certain

tortfeasors allegedly liable for his injury, cannot recover

from the Attorneys for their alleged liability.

III. CONCLUSION

Cox suffered a single, indivisible injury—his wrongful

incarceration.6 Because his legal malpractice cause of

action is one for breach of contract, the Attorneys and the

Commonwealth are not joint tortfeasors, thereby making the

protection afforded by Code § 8.01-35.1 unavailable to Cox.

Consequently, under the common law, his release of the

Commonwealth now bars recovery against others allegedly

liable for his wrongful incarceration, regardless of the

theory upon which such liability may be predicated.

6
In 2004, the General Assembly enacted Code § 8.01-
195.11, which provides for compensation to certain persons
wrongfully incarcerated; the statute is inapplicable to
this action.

19
 For these reasons, we will affirm the judgment of the

circuit court.7

Affirmed.

7
In light of our decision, it is not necessary to
address the remaining assignments of error or the
assignments of cross-error. We do, however, conclude that
the circuit court had subject matter jurisdiction.

20