Majority went too far in legal malpractice case, dissenters say

By Steve Korris | Dec 28, 2009




CHARLESTON – Three Justices of the Supreme Court of Appeals decided the rights of legal malpractice defendant Douglas Rockwell even though he wasn't a party to the case before them, according to two dissenters.

Justice Robin Davis wrote on Nov. 24 that the majority decided Rockwell's rights in a property dispute in order to revive a claim against wife Carol Rockwell.

"I cannot tolerate nor will I ever approve of litigating the rights of a party not before this Court in order to keep another party in the case," she wrote.

Chief Justice Brent Benjamin agreed with Davis.

The majority pleaded they had no choice but to deal with both Rockwells at once.

Justice Menis Ketchum found their cases "so intertwined that we believe the interests of the Rockwells to be inseparable."

Carol Rockwell holds a deed to a strip of land on the Shenandoah River, 115 feet wide and 589 feet long.

Stanley Dunn and Katherine Dunn, former clients of Douglas Rockwell, seek a court order reforming the deed in their favor.

The Dunns claim that while Rockwell represented them in buying land, he and his wife abused an agreement to buy a bit of the land and "round off" an adjacent lot.

The Dunns sued in 2006, seeking to rescind, cancel and reform the deed.

They accused Douglas and Carol of unjust enrichment, misappropriation and conversion, fraud, and civil conspiracy.

They accused Douglas of professional negligence and breach of fiduciary duty.

Carol Rockwell moved for summary judgment, arguing that the Dunns sued more than two years after they discovered what happened.

Jefferson Circuit Judge David Sanders granted summary judgment last year, ruling that a two year limit had run out on all claims against Carol.

He found it undisputed that the Dunns knew or should have known in 2003 that the Rockwells had harmed them through some form of misconduct.

Douglas also moved for summary judgment, and Sanders denied it.

The Dunns appealed Carol's victory, and the Supreme Court reversed it.

"Our law is clear that there is no statute of limitations for claims seeking equitable relief," Ketchum wrote.

Claims of deed cancellation and unjust enrichment seek equitable relief, he wrote.

On the rest of the claims against Carol, Ketchum directed Sanders to figure out when statutes of limitations began running.

Ketchum provided a decision process that ended with determining whether some other tolling doctrine arrested the statute of limitations.

"We have previously adopted a doctrine that tolls statutes of limitations in negligence actions against attorneys," he wrote.

A doctrine of continuous representation tolls a statute in attorney negligence until the professional relationship terminates in the underlying matter, he wrote.

"The evidence in the record below suggests that lawyer Rockwell continued to have a professional legal relationship with the Dunns, a relationship that was directly related to the Dunns' negotiation and attempt to purchase the Hoover/Gray farmland, until the spring of 2005," he wrote.

He told Sanders to resolve whether Douglas Rockwell tolled the statute until then.

He rejected Carol's argument that she wasn't an attorney and didn't have a continuous professional relationship with the Dunns.

"The Dunns allege that Ms. Rockwell conspired with her husband, and profited from his misdeeds during his continuous legal representation of the Dunns," he wrote.

Justices Thomas McHugh and Margaret Workman agreed.

Davis and Benjamin disagreed.

"The majority opinion has litigated the rights of a defendant who was not a party to this appeal," Davis wrote.

She wrote that if Douglas loses the case and appeals, he can't assign error to Sanders on denial of summary judgment under the continuous representation doctrine.

"The majority opinion in the instant appeal has already decided that the issue must go to the jury," he wrote.

"The resolution of this issue against Mr. Rockwell, when the claims against him were not properly before this court, sets a dangerous precedent," she wrote.

James Varner and Debra Herron, of McNeer, Highland, McMunn and Varner in Clarksburg, represented the Dunns. So did William Becker of Rockville, Maryland.

Robert Aitcheson of Charles Town represented Carol Rockwell.

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