Plaintiff’s damages claims contradicted his bankruptcy petition – Summary judgment granted

Defendant attorney represented plaintiff husband in divorce and custody proceedings from 2007 to 2011, which concluded with the wife being awarded full custody of the minor child, and limited visitation rights for the husband.

Plaintiff husband sued his attorney, alleging that, because of the defendant’s malpractice:

1. Plaintiff lost custody of his child and as a result, suffered compensatory damages and emotional distress and mental anguish;

2. Defendant failed to contest, in the divorce proceedings, wife’s alleged theft of various personal property (gems, cash, jewelry, watches, Persian rugs and other items) belonging to the husband, valuing in excess of $200,000;

3. Defendant failed to seek equitable distribution of wife’s retirement funds;

4. The domestic relations court ordered that husband pay a portion of wife’s attorney’s fees;

5. Plaintiff was damaged in the amount of attorneys’ fees he paid to defendant in the divorce proceedings.

The court sustained the defendant’s demurrer to issue number one, holding that a legal malpractice claim arises in contract, and therefore emotional distress and punitive damages are not recoverable. The court further held that, as a matter of law, damages arising out of loss of custody are speculative, and that causation would be impossible to prove.

The court granted defendant’s motion for summary judgment on issues two through five. With respect to issue number two, plaintiff husband had filed a petition for bankruptcy (by other counsel) during the divorce proceedings, in which he claimed that he had virtually no assets. This conflicted with his assertion in the legal malpractice case that defendant attorney failed to contest the wife’s supposed theft of many high-value items. The court sustained defendant’s motion for summary judgment pursuant to Kocher v. Campbell, 282 Va. 113 (2011) finding that since plaintiff failed to include these items in his petition for bankruptcy, the property was neither abandoned nor exempted by the trustee in bankruptcy, and therefore it remained a part of the bankruptcy estate; plaintiff had no claim to it.

The court held that plaintiff’s claim on issues three and four failed because he had not designated an expert to testify to those damages. Plaintiff lost on issue five because Rutter v. Jones, 264 Va. 310 (2002) holds that attorneys’ fees in the underlying case are not damages that “arise from” the malpractice.

[12-T-072]

Type of action: Legal malpractice
Court: Alexandria Circuit Court
Verdict or settlement: Case dismissed on demurrer and summary judgment
Attorneys for defendant: Bernard J. DiMuro and Stacey Rose Harris, Alexandria