Supreme Court rules for late attorney in property dispute

By Nathan Bass | Aug 6, 2013


CHARLESTON – The now-deceased attorney for a deceased Marion County man owed no duty to the man's widow and cannot be held liable for turning over the man’s divorce files to his ex-wife.

The unanimous state Supreme Court affirmed the Circuit Court of Marion County’s order in the matter on June 28.

In 1977, Elizabeth Frye and John Frye, married at the time, acquired certain real property in Grant County. A few years later, John Frye hired Woodrow Potesta to represent him in divorce proceeding against Elizabeth.

At the time of the divorce, a contract was drafted in which Elizabeth relinquished her interest in the acquired property in exchange for John Frye’s agreement to will his interest in the property to their children. However, a property settlement agreement, drafted by Potesta in connection with the divorce proceedings, was contrary to this contract.

In 1993, John Frye began a romantic relationship with plaintiff/petitioner Katherine L. McGlinchey that lasted until his death on April 27, 2006. The decedent had executed a will naming McGlinchey his sole heir.

In 1997, defendant/respondent Woodrow Potesta had given John Frye’s divorce file to Elizabeth Frye and this file contained a copy of the contract which purported to bind John Frye to willing the property she that had relinquished, to their children. After his father’s death, their son brought suit against McGlinchey, in part based upon the contract signed by both his parents, and a jury found that although McGlinchey was the heir of John Frye and the Executor of his Estate, she had no interest in the Grant County property and the decedent was obligated to will the property to his children with Elizabeth Frye.

This decision was affirmed by the state Supreme Court.

On Aug. 19, 2011, McGlinchey filed a complaint against Potesta asserting claims for legal malpractice, breach of contract and breach of fiduciary duty as a result of Potesta having given Elizabeth Frye the decedent’s divorce file. McGlinchey later amended the complaint to allege that Potesta had negligently failed to include language in the divorce property settlement that would have modified/nullified the contract, as well.

The circuit court granted Potesta’s motion to dismiss the complaint on June 21, 2012, and McGlinchey appealed.

“On appeal, petitioner argues that the circuit court erred in granting respondent’s motion to dismiss. In support of this argument, petitioner states that the requirements for a suit against an attorney for negligence are satisfied pursuant to Calvert v. Scharf, and that the claims for breach of contract and breach of fiduciary duty were sufficiently pled to prevent dismissal.” the court wrote.

“This Court has held ‘generally, in a suit against an attorney for negligence, the plaintiff must prove three things in order to recover: (1) the attorney's employment; (2) his/her neglect of a reasonable duty; and (3) that such negligence resulted in and was the proximate cause of loss to the plaintiff.’

“A review of the record shows that the circuit court did not err in granting respondent’s motions to dismiss because petitioner did not establish that she had an attorney-client relationship with respondent... [w]e hereby adopt and incorporate the circuit court’s well-reasoned findings and conclusions as to the assignments of error raised in this appeal.”

Potesta passed away in 2012. He was an Air Force veteran and taught at West Virginia University and Fairmont State. Charles R. DiSalvo is the current Woodrow A. Potesta Professor of Law at WVU.

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