CHARLESTON — The defendants in a lawsuit alleging legal malpractice are seeking to have the lawsuit thrown out, saying the lawsuit fails to state a claim.
In its memorandum of law in support of the motion to dismiss, P. Nathan Bowles and his firm P. Nathan Bowles PLLC argue that the lawsuit should be dismissed because it falls outside of the statute of limitations, that the plaintiff, Michael Bialek, willingly accepted the terms of the settlement agreement at issue and that he cannot prove damages that resulted from Bowles' alleged malpractice.
"Here, Bialek's claim fails because he has not and cannot set forth any facts that would support the conclusion that he suffered damages from Bowles' filing of Bialek's complaint in federal court after HERC's state court action, or from his other, even more vague, allegations of malpractice," the memo states.
Bowles included the settlement agreement at issue with his answer, which shows Bialek's signature.
Bialek responded that the case should not be dismissed, arguing that it must be denied because discovery has not even started yet.
"The defendants identify no legal authority for their assertion that the plaintiff is barred from suing the defendants because he entered into an unfavorable settlement agreement of the underlying action due to the failings of the defendants," Bialek writes.
In his lawsuit, Bialek claims he retained Bowles and his law firm to represent him in ongoing litigation after Aug. 15, 2016, and prior to Sept. 10, 2016, according to a complaint filed in Kanawha Circuit Court.
Bialek claims the litigation involved the Haught Family Trust and HERC Pol and Gas. Bialek wanted Bowles to assist him in conducting the settlement of HERC's purchase of a lease from Bialek that was entered into by HERC and Bialek in 2013.
The plaintiff alleges that HERC failed to appear and purchase the lease from Bialek ad he wanted to document HERC's default of the purchase and sale agreement and employed the defendants to assist in composing an affidavit in 2017. In August 2017, the plaintiff had investor interest from a mineral fund for the purchase of the lease for $1.9 million, but the business was reluctant until the plaintiff obtained a release from HERC or a court decision showing HERC was in default.
When the plaintiff informed the defendants of this, HERC refused to execute the prepared release and the plaintiff requested Bowles to then file a lawsuit against HERC. Instead, HERC filed a fraudulent lawsuit against Bialek and Bowles failed to timely file a civil against HERC, causing him damages.
Bialek is seeking compensatory and punitive damages with pre- and post-judgment interest. He is representing himself.
Bowles is represented by Kevin Nelson and Chandler Aragona from Dinsmore & Shohl.
The case is assigned to Circuit Judge Carrie Webster.
Kanawha Circuit Court case number: 21-C-72