I had intended to write about some West Virginia federal court decisions that were issued last week dealing with a class actions and commercial free speech, but an article in this morning’s Charleston Gazette caused me to put those on hold.  I’ll get back to those in a day or two.

    Yesterday, I wrote that the Supreme Court of Appeals was going to hear argument in A. T. Massey Company’s appeal of a $50 million verdict rendered against it in Boone County, West Virginia in 2002.  I wasn’t able to attend the argument or watch on the Court’s webcast, so I don’t know how the argument went.

    According to the article by Gazette reporter Paul J. Nyden, Massey and two related entities have sued Wyatt, Tarrant & Combs, LLP of Lexington, Kentucky and McGuire Woods LLP of Richmond, Virginia for their alleged malpractice in representing Massey in a Virginia lawsuit filed by Hugh Caperton and his companies.  In 2001, a Virginia jury awarded the plaintiffs $6 million.  The Virginia Supreme Court refused Massey’s appeal because it was filed by a lawyer from Kentucky who wasn’t admitted to practice in Virginia.  Massey ended up paying Caperton $7.2 million, including $1.2 million in pre-judgment interest.  Here is Massey’s complaint, which was filed on July 13, 2007 in the Circuit Court of Fayette County (Lexington), Kentucky.


    Massey alleged claims for negligence, breach of contract, and breach of fiduciary duty/conflict of interest, and claimed that the defendants failed to have a lawyer admitted to practice in Virginia sign the notice of appeal, which resulted in the dismissal of the appeal by the Virginia Supreme Court.  Further, Massey alleged that the defendants changed language in its petition for appeal without Massey’s knowledge and for the purpose of making a legal malpractice claim more difficult to assert.  Specifically, Massey alleged that the petition in draft form asked that the Supreme Court “reverse and remand” the verdict and “reverse and render final judgment.”  But in the final version, only the “reverse and remand” language was included. 

    According to the complaint, if the defendants had properly filed the notice of appeal and not changed the language in the petition for appeal, “the Virginia Supreme Court would have reversed the judgment of the trial court due to its erroneous rulings at trial and entered final judgment in Wellmore’s [one of the plaintiffs] favor.” 

    Typically, in a legal malpractice case, the plaintiff has to prove that it would have prevailed in the underlying matter but for its counsel’s malpractice, which is the so-called “case within a case” requirement.  So Massey has to prove its assertion that it would have been successful before the Virginia Supreme Court.

    Massey claimed that its lawyers knew that the Virginia verdict “would have a direct and preclusive effect” on the Boone County, West Virginia action. Massey has asked that the defendants pay the verdicts in the two cases, plus the pre- and post-judgment interest from both actions, all of which totals at least $82 million.  Massey also seeks reimbursement of its attorney’s fees and expenses, and punitive damages as a result of the defendants’ alleged intentional conduct in changing the language in Massey’s petition for appeal.