VA: Underlying real property transaction
Facts: On March 29, 1989, plaintiffs Edward H. Ripper and Phyllis O. Ripper entered into a contract to purchase a tract of land. There was a portion of the land containing a road that was maintained by the state. As a result, the contract contained provisions that granted the Rippers “to determine rights and responsibilities with respect to a road running through the property.” The Rippers were also allowed a 45-day option to conduct a feasibility study, wherein, if said study was conducted and the land was found subject to restrictions, then the plaintiffs would not be bound.
On April 4, 1989, Mr. Ripper contacted attorney, Bain to discuss the 45-day option and informed Bain that the Rippers would proceed with the purchase if Bain believed that the Rippers could restrict access to at least a portion of the road and gate it off. Ripper hired Bain to conduct relevant research on the matter.
On April 18, 1989, Bain advised Ripper that he did have a legal right to gate the road and restrict public access at the end of the state-maintained portion. Bain’s advice was based upon a title insurance policy and deed book pages. The Rippers then proceeded to purchase the land, and made a final confirmation with Bain that they had a right to gate the area and restrict public use on a section of the road. The Rippers then erected a gate on the road, thus stopping public traffic on that portion of the road.
Thereafter, the Albemarle County Board of Supervisors filed an action against the Rippers in Federal court seeking removal of the gate. In January 1992, the federal court ruled that the portion of the road was public and that the gate be removed.
The Rippers then filed suit against Bain alleging negligence. At the trial court granted Bain’s motion to strike evidence and granted summary judgment for Bain on the basis that the Rippers failed to establish that there was any negligence by Bain that caused any damage to the Rippers. The Rippers appealed.
Issue: Did the trial court err in holding that the clients failed to establish a prima facie case for negligence in the legal malpractice action?
Ruling: Yes. The Rippers established a prima facie case for negligence and proximate cause regarding Bain’s legal advice about the status of the portion of the road through their presentation of evidence that they sought Bain’s advice, and through expert testimony indicating that Bain negligently informed the Rippers that they had a legal right to restrict access to the road.
Lesson: To establish a claim for legal malpractice, a client must show that the attorney failed to exercise reasonable degree of care and skill in his performance of legal services.
Posted in: Real Estate