Virginia Lawyers Weekly

McGuireWoods LLP cannot be held liable for legal malpractice because it failed to file the transcript in an appeal of an $8.3 million verdict against the Winter-green ski resort.

Richmond Circuit Judge Melvin R. Hughes Jr. reached that conclusion earlier this month in granting the Richmond-based law firm’s motion for summary judgment.

Wintergreen and McGuireWoods had based their appeal to the Supreme Court of Virginia on what they said were inconsistent verdicts by the jury in finding that Wintergreen, but not two employees who were operating equipment that a young woman crashed into, was liable for the woman’s injuries.

The Supreme Court never addressed the argument because it dismissed the appeal after the transcript was not filed on time.
In their malpractice action, Wintergreen and its insurers, subsidiaries of American International Group Inc., emphasized that McGuireWoods had assured them that they had “a good probability of success on appeal” based on the inconsistent verdicts argument.

Virginia law required the legal malpractice plaintiffs to show as a matter of law that the appeal would have resulted in a reversal of the judgment for the young woman who suffered a serious brain injury when she skied into a snow grooming machine, Hughes said.

The judge concluded in Wintergreen Partners Inc. v. Bowman and Brooke LLP (VLW 009-8-044) , however, that an instruction that the resort had a duty to provide premises that were in reasonably safe condition created a basis for liability independent of the claim that the negligence of the employees should be imputed to the resort.

Patrick M. Regan, a Washington attorney who represents the resort and its insurers, had contended – as had McGuireWoods in the papers filed in the blown appeal – that there was no evidence on which to base the instruction.

The plaintiff’s expert had testified that it was dangerous to drive a snowmobile and the grooming machine up a slope after dark, but the plaintiff presented no evidence that the actions of the employees were authorized by the resort, Regan contended.

Regan said he will recommend that his clients appeal the ruling to the Supreme Court.

“Virginia law prevents them from flip-flopping like this,” arguing in the petition for appeal that the issue has merit and then contending in the malpractice action that it must be rejected as a matter of law, Regan said.

Richmond attorneys James W. Morris III, Michael R. Ward and Sandra S. Gregor represent McGuireWoods.

The blown appeal spawned four different lawsuits, only one of which is still alive at the trial level.

Richmond attorney Christopher C. Spencer represented Wintergreen in the personal injury action tried in Albemarle County Circuit Court.

The AIG subsidiaries and resort had retained Getchell and his firm to observe the trial and take over on appeal in case of an adverse verdict.

Spencer asserted that a meeting occurred in September 2004 immediately after a hearing on post-trial motions at which he insisted that one firm should be entirely responsible for handling the appeal to avoid the possibility of a missed deadline. Getchell agreed and took full responsibility for the appeal, Spencer alleged.

McGuireWoods, on the other hand, contended that Spencer had the original copy of the trial transcript and ultimately filed it, albeit much too late.

The insurers and the resort filed a legal malpractice action against Spencer and his former firm, but not McGuireWoods, in July 2007 and waited almost a year to serve it. Before serving it, they amended the complaint to add McGuireWoods as a defendant.

Spencer alleged that he was defamed when Getchell and another McGuireWoods attorney cited the original complaint to newspaper reporters who raised questions about the appeal after President George W. Bush had nominated Getchell for a vacancy on the 4th U.S. Circuit Court of Appeals.

Spencer repeated the allegation in September 2008 in a second state court suit naming McGuireWoods as a defendant and in a federal suit with AIG and Regan, who had spoken with reporters about the case, as defendants.

U.S. District Judge Norman K. Moon dismissed the federal action earlier this year. He said the suit could not be the basis of a defamation case because it is protected by the absolute litigation privilege.

Although the privilege only applied to the complaint itself, Regan’s comments to a reporter about it were true, whatever the underlying motives for not including Getchell and McGuireWoods in the original complaint might have been, Moon wrote in Spencer v. American International Group (VLW 009-3-019).

After Moon’s opinion was published, attorneys for Getchell asked Hughes to reconsider his earlier dismissal of a demurrer because Moon’s decision was res judicata.

In his letter opinion, Spencer v. Getchell (VLW 009-8-043) Hughes said res judicata did not apply but considered Moon’s opinion “a source of ‘powerful persuasion’ on the viability of plaintiff’s claims” and dismissed them.

That logic would appear to apply to the second state defamation case with McGuireWoods as a defendant, but proceedings in that case were stayed because of the legislative privilege accorded State Sen. A. Donald McEachin, D-Richmond, one of the attorneys representing the law firm.
Spencer said the federal case already is on appeal and he plans to appeal Hughes’ ruling as well. The rulings say, in effect, “one lawyer can falsely blame another lawyer for his mistakes and that can’t be the law,” Spencer said.

Earlier this month, Regan dismissed Spencer as a defendant in the legal malpractice case, but his former firm, Bowman and Brooke LLP remains a defendant on one issue.

After the deadline for filing the transcript had expired, the Albemarle Circuit Court clerk’s office called the firm and asked a secretary there about the transcript.

The secretary discussed the call with the firm’s office manager and then filed the transcript with the clerk without consulting Spencer, Regan said.

He said he will ask for a stay or nonsuit in the claim against Bowman and Brooke pending resolution of his appeal against McGuireWoods.

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