FILED June 2, 2021 released at 3:00 p.m. EDYTHE NASH GAISER, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2021 Term _____________
No. 20-0532 _____________
CLAY R. HUPP, Plaintiff Below, Petitioner
V.
RICHARD A. MONAHAN AND THE MASTERS LAW FIRM LC, Defendants Below, Respondents ________________________________________________
Appeal from the Circuit Court of Kanawha County The Honorable Tod Kaufman, Judge Civil Action No. 18-C-1265
AFFIRMED ________________________________________________
Submitted: March 16, 2021 Filed: June 2, 2021
Richard A. Robb Richard A. Monahan South Charleston, West Virginia The Masters Law Firm lc Attorney for the Petitioner Charleston, West Virginia Self-Represented Litigant and Attorney for the Respondent, The Masters Law Firm lc
CHIEF JUSTICE JENKINS delivered the Opinion of the Court. SYLLABUS BY THE COURT
1. “A cause of action for legal malpractice accrues when the malpractice
occurs, or when the client knows, or by reasonable diligence should know, of the
malpractice.” Syllabus point 5, VanSickle v. Kohout, 215 W. Va. 433, 599 S.E.2d 856
(2004).
2. “West Virginia adopts the continuous representation doctrine through
which the statute of limitations in an attorney malpractice action is tolled until the
professional relationship terminates with respect to the matter underlying the malpractice
action.” Syllabus point 6, Smith v. Stacy, 198 W. Va. 498, 482 S.E.2d 115 (1996).
3. “The limitations period for a legal malpractice claim is not tolled by
the continuous representation rule where an attorney’s subsequent role is only tangentially
related to legal representation the attorney provided in the matter in which he was allegedly
negligent.” Syllabus point 7, Smith v. Stacy, 198 W. Va. 498, 482 S.E.2d 115 (1996).
4. “The continuous representation doctrine applies only to malpractice
actions in which there [are] clear indicia of an ongoing, continuous, developing, and
dependent relationship between the client and the attorney.” Syllabus point 8, Smith v.
Stacy, 198 W. Va. 498, 482 S.E.2d 115 (1996).
i 5. “The continuous representation doctrine should only be applied where
the attorney’s involvement after the alleged malpractice is for the performance of the same
or related services and is not merely continuity of a general professional relationship.”
Syllabus point 9, Smith v. Stacy, 198 W. Va. 498, 482 S.E.2d 115 (1996).
ii Jenkins, Chief Justice:
Petitioner, Clay R. Hubb (“Mr. Hubb”), the plaintiff below, appeals an order
entered by the Circuit Court of Kanawha County that granted a motion to dismiss Mr.
Hubb’s legal malpractice lawsuit, which motion was filed by the defendants below, the
respondents, Richard A. Monahan (“Mr. Monahan”) and The Masters Law Firm lc.
(“Masters”). The circuit court granted dismissal based upon its conclusion that the
applicable two-year statute of limitations on Mr. Hubb’s claim had expired prior to the
filing of his legal malpractice action. Mr. Hubb argues that the circuit court erred in failing
to apply the continuous representation doctrine to find his complaint was timely filed. We
have considered the briefs submitted on appeal, the appendix record, the parties’ oral
arguments, and the applicable legal authority. Because the circuit court considered matters
outside the pleadings, we convert the dismissal to summary judgment; however, we find
no error in the circuit court’s conclusion that the continuous representation doctrine is not
applicable to the facts presented in this case. Accordingly, the circuit court’s order
effectively granting summary judgment to Mr. Monahan and Masters (collectively
“Lawyers”) is affirmed.
I.
FACTUAL AND PROCEDURAL HISTORY
Mr. Hupp, who was formerly employed as a trooper for the West Virginia
State Police, was granted duty-related, partial-disability benefits by the West Virginia
1 Consolidated Public Retirement Board (“WVCPRB”) in 1999. 1 His partial disability
resulted from hearing loss and was based, in part, upon an evaluation by Stephen J.
Wetmore, M.D., a physician chosen by the WVCPRB. Dr. Wetmore concluded that Mr.
Hupp was permanently disabled from performing the essential functions required of a state
trooper due to a moderate to severe high frequency hearing loss. Mr. Hupp’s disability was
considered permanent. In addition, Mr. Hupp presented the WVCPRB with a report from
his own treating physician, Robert W. Azar, M.D., and from audiologist George F. Evans,
M.A. Audiologist CCCA, both of whom concurred that Mr. Hupp was permanently
disabled from performing the essential duties of a state trooper as a result of his hearing
loss.
Despite the earlier finding that Mr. Hupp suffered from a permanent hearing
loss, the WVCPRB notified Mr. Hupp on July 2, 2010, that he was to undergo a
recertification exam by a physician selected by the WVCPRB to verify that he remained
disabled. Thereafter, he was examined on behalf of the WVCPRB by Marsha Lee Bailey,
M.D. Dr. Bailey completed a recertification form based on her evaluation of Mr. Hupp
and gave an affirmative answer to the following question: “[h]as the individual recovered
1 According to a “RECOMMENDED DECISION” by a WVCPRB hearing officer, Mr. Hupp “had approximately twenty-two years of service credit in the State Police Death, Disability[,] and Retirement System” at the time he was granted partial-disability benefits. Thereafter, Mr. Hupp served as Sheriff of Tyler County from January 2001 through December 2008. He then worked part-time as a security guard for an unknown length of time.
2 from his or her previously determined probable permanent disability to the extent that he
or she is able to perform adequately the essential duties of a law enforcement officer?” In
addition, Dr. Bailey noted on the form that Mr. Hupp “was never disabled as a law
enforcement officer.” Mr. Hupp’s partial-disability benefits were terminated based upon
Dr. Bailey’s report. Mr. Hupp elected to retire rather than return to active duty as a state
trooper following the termination of his benefits; nevertheless, he appealed the termination
because his partial-disability benefits were superior to his retirement benefits.
At the request of the West Virginia Troopers Association, Lawyers
represented Mr. Hupp in his appeal. 2 Lawyers first filed an administrative appeal on behalf
of Mr. Hupp, and, following a hearing on February 1, 2011, the hearing officer issued a
recommended decision concluding that Mr. Hupp’s appeal should be denied. The
WVCPRB adopted the recommended decision by its final order dated May 26, 2011, and
notified Mr. Monahan of the same. Lawyers continued their representation of Mr. Hupp
and appealed the final administrative order to the Circuit Court of Tyler County. By order
entered on June 22, 2013, the circuit court affirmed the decision of the WVCPRB. Finally,
2 Mr. Hupp explains in his appellate brief that Lawyers have characterized their representation as “‘pro bono’ apparently because their representation occurred due to some sort of relationship with the [West Virginia Troopers Association].” In their appellate brief, Lawyers state that, “[o]ur firm[,] for approximately 30 years, has been representing Troopers who are approved by the [West Virginia Troopers] Association on a pro bono basis.” They further assert that Mr. Hupp “did not ‘retain’ [them] to represent him. No contingency fee contract or hourly contract existed between the parties. Rather, at the request of The West Virginia Troopers Association, [Lawyers] agreed to provide pro bono legal services to [Mr. Hupp] in order to assist him in handling his appeal.” 3 the circuit court’s decision was appealed to this Court, with Lawyers still serving as counsel
for Mr. Hupp. This Court also affirmed the termination of Mr. Hupp’s partial-disability
benefits. See Hupp v. W. Va. Consol. Pub. Ret. Bd., No. 13-0811, 2014 WL 2682677
(W. Va. June 13, 2014) (memorandum decision). Mr. Monahan forwarded a copy of this
Court’s memorandum decision to Mr. Hupp on June 16, 2014. By order entered on August
26, 2014, the Court refused Mr. Hupp’s petition for rehearing, which had been filed on his
behalf by Mr. Monahan. This Court’s mandate issued on September 2, 2014.
Slightly more than a year later, by letter dated September 28, 2015, Mr. Hupp
asked Mr. Monahan to “make reapplication to the [WVCPRB] on [his] behalf for a partial
or full disability award.” Mr. Monahan responded with a letter explaining to Mr. Hupp
that Masters
does not file applications or re-applications for partial or full disability awards for applicants. It would be your responsibility to file such application or reapplication.
If the [WVCPRB] denies your reapplication and the West Virginia Troopers Association approves our firm representing you in any appeal, then we can assist in that regard . . . .
Thereafter, James C. Lee, in his capacity as President of the West Virginia Troopers
Association, sent a letter to Masters dated December 22, 2015, 3 which stated, in relevant
part: “[p]er a board meeting vote of the West Virginia Troopers Association on December
21, 2015, please be advised that the Board of Directors has voted to allow Clay Hupp to
3 The letter was addressed to Marvin Masters. 4 come to talk with you about his issue. Please proceed as you need to.” Thereafter Mr.
Monahan and Mr. Hupp tried, unsuccessfully, to obtain medical evidence to demonstrate
that Mr. Hupp’s hearing had worsened in the time since Dr. Bailey’s 2010 examination,
which evidence was necessary to support Mr. Hupp’s application for disability benefits. 4
Having failed to obtain medical evidence to adequately demonstrate a worsening of Mr.
Hupp’s hearing during the relevant timeframe, Lawyers advised Mr. Hupp in January 2018
that nothing more could be done to further his efforts to obtain a new award of disability
benefits. 5
On October 4, 2018, Mr. Hupp filed a complaint against Lawyers in the
Circuit Court of Kanawha County alleging that they committed legal malpractice in
connection with his appeal of the WVCPRB’s termination of his partial-disability benefits
by failing to obtain and/or submit medical evidence to refute Dr. Bailey’s assessment that
Mr. Hupp suffered no disability from hearing loss. Mr. Hupp contended that Lawyers’
failure to obtain this evidence resulted in the WVCPRB’s decision being affirmed at every
level of appeal. Lawyers filed a motion to dismiss the complaint pursuant to Rule 12(b)(6)
of the West Virginia Rules of Civil Procedure claiming the action was time-barred by the
4 It appears that, due to the inability to obtain a medical opinion stating that Mr. Hupp’s hearing loss had substantially worsened since his reevaluation in 2010, no application for a new disability award was ever filed by Lawyers on behalf of Mr. Hupp. 5 Mr. Hupp’s complaint asserts that in “January 2018 the defendants [Lawyers] informed Mr. Hupp there was nothing further they could do in his behalf terminating their representation of him in this matter.” 5 applicable statute of limitations. They argued that the two-year statute of limitations for
Mr. Hupp’s malpractice claim began to run on September 3, 2014, immediately following
this Court’s issuance of the mandate that concluded Mr. Hupp’s final appeal of the
termination of his disability benefits. As such, Lawyers contend that the limitations period
for Mr. Hupp’s malpractice action expired on September 2, 2016, and his complaint, which
was not filed until October 4, 2018, was untimely. Mr. Hupp resisted the motion and
argued that Lawyers’ representation was continuous until January 2018, when they advised
him that they could do nothing more in relation to his efforts to obtain a new award of
disability benefits. Calculating the statute of limitations from January 2018, Mr. Hupp
argued that his complaint was timely filed.
The circuit court granted Lawyers’ motion to dismiss, finding that Mr. Hupp
“neither has nor can show a clear indicia [sic] of an ongoing, continuous relationship
between the parties” after the conclusion of his appeal of the termination of his disability
benefits. The circuit court further concluded that any further relationship between the
parties, i.e., Lawyers’ assistance in attempting to gather information to file a new
application for disability benefits, was only tangentially related to their earlier, allegedly
negligent, representation of Mr. Hupp. This appeal followed.
6 II.
STANDARD OF REVIEW
Mr. Hupp appeals from the circuit court’s order dismissing his complaint for
failing to state a claim upon which relief can be granted. Generally, “[o]nly matters
contained in the pleading can be considered on a motion to dismiss under Rule 12(b)
R.C.P., and if matters outside the pleading are presented to the court and are not excluded
by it, the motion should be treated as one for summary judgment . . . .” Syl. pt. 3, in part,
Riffle v. C.J. Hughes Constr. Co., 226 W. Va. 581, 703 S.E.2d 552 (2010) (quotations and
citations omitted). We observe that Lawyers attached sixteen exhibits to their motion to
dismiss. Some of these exhibits fall within exceptions to the general rule prohibiting
consideration of matters outside the pleading, such as records from related proceedings.
See, e.g., Forshey v. Jackson, 222 W. Va. 743, 747, 671 S.E.2d 748, 752 (2008) (“Rule
12(b)(6) permits courts to consider matters that are susceptible to judicial notice.”
(quotations and citation omitted)); Sturm v. Bd. of Educ. of Kanawha Cty., 223 W. Va. 277,
284 n.9, 672 S.E.2d 606, 613 n.9 (2008) (observing that “a trial court can take notice of a
prior case without having to convert the motion to dismiss into one for summary
judgment”). However, other exhibits attached to Lawyers’ motion to dismiss, such as
letters between the parties that were neither referenced in nor integral to allegations in the
complaint, are not subject to an exception to the general rule. See Syl. pt. 6, Mountaineer
Fire & Rescue Equip., LLC v. City Nat’l Bank of W. Va., ___ W. Va.___, 854 S.E.2d 870
(2020) (“When a movant makes a motion to dismiss a pleading pursuant to Rule 12(b)(6)
of the West Virginia Rules of Civil Procedure, and attaches to the motion a document that
7 is outside of the pleading, a court may consider the document only if (1) the pleading
implicitly or explicitly refers to the document; (2) the document is integral to the pleading’s
allegations; and (3) no party questions the authenticity of the document. If a document
does not meet these requirements, the circuit court must either expressly disregard the
document or treat the motion as one for summary judgment as required by Rule 12(b)(7).”).
The circuit court’s order quoted from these letters and clearly considered them in ruling on
Lawyers’ motion to dismiss. 6 Accordingly, we treat this case as having been decided on a
motion for summary judgment. See Harrison v. Davis, 197 W. Va. 651, 657 n.16, 478
S.E.2d 104, 110 n.16 (1996) (“[I]f a circuit court considers matters outside the pleadings
in connection with a motion to dismiss, we must treat the motion as one for summary
judgment.”).
It is well settled that “[a] circuit court’s entry of summary judgment is
reviewed de novo.” Syl. pt. 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994).
In conducting our plenary review, we are cognizant that “[a] motion for summary judgment
should be granted only when it is clear that there is no genuine issue of fact to be tried and
inquiry concerning the facts is not desirable to clarify the application of the law.” Syl. pt.
6 Mr. Hupp does not assign error to the circuit court’s consideration of matters outside the pleadings; therefore, he has waived any such argument. See Tiernan v. Charleston Area Med. Ctr., Inc., 203 W. Va. 135, 140 n.10, 506 S.E.2d 578, 583 n.10 (1998) (“Issues not raised on appeal or merely mentioned in passing are deemed waived.”); Syl. pt. 6, Addair v. Bryant, 168 W. Va. 306, 284 S.E.2d 374 (1981) (“Assignments of error that are not argued in the briefs on appeal may be deemed by this Court to be waived.”). 8 3, Aetna Cas. & Sur. Co. v. Fed. Ins. Co. of New York, 148 W. Va. 160, 133 S.E.2d 770
(1963). Stated another way,
[s]ummary judgment is appropriate if, from the totality of the evidence presented, the record could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove.
Syl. pt. 2, Williams v. Precision Coil, Inc., 194 W. Va. 52, 459 S.E.2d 329 (1995). We will
apply these summary judgment standards to our consideration of the issue raised on appeal.
III.
DISCUSSION
In this appeal, we are asked to determine whether Lawyers’ representation of
Mr. Hupp for the purpose of filing an application seeking a new award of disability benefits
based on an alleged worsening of his hearing loss (sometimes referred to as “application
representation”) was a continuation of Lawyers’ earlier representation of Mr. Hupp in
connection with his unsuccessful appeal of the WVCPRB’s termination of his prior award
of partial-disability benefits for hearing loss (sometimes referred to as “appellate
representation”) such that the continuous representation doctrine applies to toll the statute
of limitations on Mr. Hupp’s claim that Lawyers committed malpractice during their
appellate representation.
9 Mr. Hupp does not dispute that his malpractice action sounds in tort and,
therefore, is subject to a two-year statute of limitations. 7 Rather, the question raised in this
appeal concerns when the limitations period began to run. In general, “[a] cause of action
for legal malpractice accrues when the malpractice occurs, or when the client knows, or by
reasonable diligence should know, of the malpractice.” Syl. pt. 5, VanSickle v. Kohout,
215 W. Va. 433, 599 S.E.2d 856 (2004). In this case, Mr. Hupp seeks to utilize an
exception to the general application of the statute of limitations, the continuous
representation doctrine, which was embraced by this Court in 1996: “West Virginia adopts
the continuous representation doctrine through which the statute of limitations in an
attorney malpractice action is tolled until the professional relationship terminates with
respect to the matter underlying the malpractice action.” Syl. pt. 6, Smith v. Stacy, 198
Because the continuous representation doctrine is an exception to the statute
of limitations, in deciding this matter we are mindful that statutes of limitation are favored,
and exceptions thereto should be strictly construed:
“[T]he object of statutes of limitations is to compel the bringing of an action within a reasonable time.” [Johnson v. Nedeff,] 192 W. Va. [260,] 266, 452 S.E.2d [63,] 69 [(1994)].
7 See W. Va. Code § 55-2-12 (eff. 1959) (“Every personal action for which no limitation is otherwise prescribed shall be brought: . . . (b) within two years next after the right to bring the same shall have accrued if it be for damages for personal injuries[.]”); Harrison v. Casto, 165 W. Va. 787, 790, 271 S.E.2d 774, 776 (1980) (recognizing that a legal malpractice action may sound in tort or in contract, and further observing that “[t]he limitation of time within which a tort action for personal injuries can be brought under W. Va. Code, 1931, 55-2-12, as amended, is two years.”). 10 In this manner, we [have] noted that “‘statutes of limitations are favored in the law and cannot be avoided unless the party seeking to do so brings himself strictly within some exception. It has been widely held that such exceptions “are strictly construed and are not enlarged by the courts upon considerations of apparent hardship.” (Woodruff v. Shores, 354 Mo. 742, [746,] 190 S.W.2d 994, [996,] 166 A.L.R. 957[, 960 (1945)].)[.]’” 192 W. Va. at 263, 452 S.E.2d at 66 (quoting Humble Oil & Ref. Co. v. Lane, 152 W. Va. 578, 583, 165 S.E.2d 379, 383 (1969)). Finding that the plaintiff had failed to satisfy the requirements of any established exceptions to the statute of limitations, we further stated [in Johnson] that “‘[d]efendants have a right to rely on the certainty the statute [of limitations] provides, . . . .’” 192 W. Va. at 265, 452 S.E.2d at 68 (quoting Kelly v. Mazzie, 207 Ill. App. 3d 251, 254, 152 Ill. Dec. 186, 188, 565 N.E.2d 719, 721 (1990)). Lastly, we concluded that “[b]y strictly enforcing statutes of limitations, we are both recognizing and adhering to the legislative intent underlying such provisions.” 192 W. Va. at 265, 452 S.E.2d at 68.
Perdue v. Hess, 199 W. Va. 299, 303, 484 S.E.2d 182, 186 (1997). Thus, in adopting the
continuous representation doctrine, the Stacy Court clarified that “[t]he limitations period
for a legal malpractice claim is not tolled by the continuous representation rule where an
attorney’s subsequent role is only tangentially related to legal representation the attorney
provided in the matter in which he was allegedly negligent.” Syl. pt. 7, Stacy, 198 W. Va.
498, 482 S.E.2d 115. Rather, “[t]he continuous representation doctrine applies only to
malpractice actions in which there [are] clear indicia of an ongoing, continuous,
developing, and dependent relationship between the client and the attorney.” Syl. pt. 8, id.
Accordingly, “[t]he continuous representation doctrine should only be applied where the
attorney’s involvement after the alleged malpractice is for the performance of the same or
related services and is not merely continuity of a general professional relationship.” Syl.
11 pt. 9, id. The Stacy Court further imposed “the burden of establishing the elements
necessary for the application of the doctrine . . . upon the client.” Id. at 507, 482 S.E.2d at
124.
In declining to apply the continuous representation doctrine in this case, the
circuit court reasoned that
[a]bsolutely nothing further could be done to remedy or cure the termination of [Mr. Hupp’s] prior partial-disability benefits based upon the recertification exam after the conclusion of all judicial appeals available on such matter. Any further relationship between the parties was “only tangentially related to legal representation [Lawyers’] provided in the matter in which [they were] allegedly negligent.” Syl. Pt. 7, Smith v. Stacy, supra (emphasis added).
The circuit court then concluded that Mr. Hupp’s request
for new representation did not involve the continuous representation of [Mr. Hupp] for the matter underlying his claim of malpractice, i.e., the handling of his appeal of the termination of his prior partial-disability benefits. And had [Lawyers] been continually representing [Mr. Hupp], there would have been no need for [Mr. Hupp,] over a year later[,] to send the letter requesting that [Lawyers] apply for new benefits on his behalf due to a worsening of his hearing.
Mr. Hupp contends that the circuit court erred by failing to apply the
continuous representation doctrine to toll the limitations period applicable to his claim of
malpractice related to Lawyers’ appellate representation. In support of this argument, Mr.
Hupp claims that Lawyers’ assistance in his attempt to prepare an application seeking a
new award of disability benefits was a continuation of their prior appellate representation,
12 as demonstrated by the fact that both efforts shared the common goal of obtaining disability
benefits for Mr. Hupp’s hearing loss.
In response, Lawyers argue that Mr. Hupp neither has nor could show a clear
indicium of an ongoing, continuous relationship between the parties after the conclusion
of the appellate representation. They reiterate the circuit court’s conclusion that, at the end
of all judicial appeals available in relation to the termination of his partial-disability
benefits, which culminated with this Court’s mandate entered on September 2, 2014,
nothing further could be done to remedy or cure the termination. Lawyers claim that any
further relationship between the parties was “only tangentially related to legal
representation [they] provided in the matter in which [they were] allegedly negligent.” Syl.
pt. 7, in part, Stacy, 198 W. Va. 498, 482 S.E.2d 115.
Discussing the rationale for the continuing representation doctrine, this Court
has recognized that “[t]he doctrine is grounded in notions of protecting the integrity of the
professional relationship while it is ongoing as well as protecting the client from the barring
of his or her cause of action by delay while an allegedly negligent lawyer attempts to repair
or recover from any error.” Starcher v. Pappas, No. 16-1160, 2017 WL 5157366, at *5
(W. Va. Nov. 7, 2017) (memorandum decision) (concluding that continuous representation
doctrine did not apply where there was no attorney-client relationship). In this vein, it has
been explained that
13 [t]he summary purpose of the continuous representation rule is to avoid disrupting the attorney-client relationship unnecessarily. Adoption of the rule was a direct reaction to the illogical requirement of the occurrence rule, which compels clients to sue their attorneys though the relationship continues, and there has not been and may never be any injury. The continuous representation rule is consistent with the purpose of the statute of limitations, which is to prevent stale claims and enable the defendant to preserve evidence. When the attorney continues to represent the client in the subject matter in which the error has occurred, all such objectives are achieved and preserved. The attorney-client relationship is maintained and speculative malpractice litigation is avoided.
....
The continuous representation rule is available and appropriate in those jurisdictions adopting the damage and discovery rules. The policy reasons are as compelling for allowing an attorney to continue efforts to remedy a bad result, even if some damages have occurred and even if the client is fully aware of the attorney’s error. The doctrine is fair to all concerned parties. The attorney has the opportunity to remedy, avoid or establish that there was no error or attempt to mitigate the damages. The client is not forced to end the relationship, though the option exists. This result is consistent with all expressed policy basis for the statute of limitations.
Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice § 22.13, at 430-31 (5th ed. 2000)
(footnotes omitted). Accord Stacy, 198 W. Va. at 505, 482 S.E.2d at 122.
Examining the facts of the instant matter, and bearing in mind that exceptions
to statutes of limitations are to be strictly construed, 8 we find no error in the circuit court’s
See Perdue v. Hess, 199 W. Va. 299, 303, 484 S.E.2d 182, 186 (1997) (“It 8
has been widely held that . . . exceptions [to statutes of limitations] are strictly construed and are not enlarged by the courts upon considerations of apparent hardship.” (quotations and citations omitted)). 14 conclusion that the continuous representation doctrine has no application in this case. See
Mallen & Smith, supra § 22.13, at 443 (“There is no bright-line rule for determining when
representation ended, because the particular circumstances need to be evaluated.”). Mr.
Hupp’s malpractice claim is based on Lawyers’ purported failure during their appellate
representation to obtain evidence to rebut Dr. Bailey’s findings, which findings resulted in
the WVCPRB terminating Mr. Hupp’s prior partial-disability award. Once all appeals of
the WVCPRB’s termination of Mr. Hupp’s partial-disability award were exhausted, and
this Court denied his petition for rehearing and issued its mandate, the case was finally
concluded. See id § 22.13, at 439 (“The determinative event for the ‘continuous
representation’ rule is when the representation ended.”). At that point, any alleged
malpractice by Lawyers in connection with their appellate representation of Mr. Hupp was
no longer correctable, and the primary purposes of the continuous representation doctrine,
i.e., to avoid disrupting the attorney-client relationship, to avoid requiring a malpractice
suit be filed when the potential injury remains speculative, and to allow the lawyer an
opportunity to mitigate damages, were no longer concerns with respect to Lawyers’
appellate representation of Mr. Hupp.
When Mr. Hupp contacted Lawyers by letter approximately a year after his
appeal had concluded, he asked them to “make reapplication to the Board [WVCPRB] on
[his] behalf for a partial or full disability award.” This clearly was a request for new
representation for the purpose of seeking a new disability award that would be based on a
worsening of Mr. Hupp’s hearing loss. The fact that Mr. Hupp’s request for “reapplication”
15 was considered by Lawyers to be a separate matter is reflected in their response to the
request. By letter dated October 13, 2015, Lawyers initially declined to represent Mr. Hupp
in this matter and advised him that “[o]ur firm does not file applications or re-applications
for partial or full disability awards for applicants.” Thus, rather than being a continuation
of their former appellate representation of Mr. Hupp, his request that Lawyers file on his
behalf an application for disability benefits was a distinct matter of a type that Lawyers
typically did not engage. See Dunn v. Rockwell, 225 W. Va. 43, 60, 689 S.E.2d 255, 272
(2009) (“The continuous representation doctrine requires something more than a lawyer-
client relationship. The doctrine requires a showing that the lawyer’s representation of the
client relates to the same transaction or subject matter as the allegedly negligent acts.”);
Mallen & Smith, supra § 22.13, at 439-40 (“The inquiry is not whether an attorney-client
relationship still exists on any matter or even generally, but when the representation of the
specific subject matter concluded. Continuity of the representation is a requirement.”
(footnote omitted)).
Lawyers’ letter of October 13 additionally belies Mr. Hupp’s theory that
Lawyers’ application representation was an effort to mitigate the alleged malpractice
committed in their appellate representation. See Stacy, 198 W. Va. at 503, 482 S.E.2d at
120 (explaining that the continuous representation doctrine “is designed, in part, to protect
the integrity of the professional relationship by permitting the allegedly negligent attorney
to attempt to remedy the effects of the malpractice and providing uninterrupted service to
the client”). Assuming, for the sake of argument, that obtaining a new disability award for
16 Mr. Hupp was an appropriate method of mitigating their alleged malpractice in Mr. Hupp’s
earlier appeal, Lawyers would not have initially declined the representation if mitigation
had been its purpose.
The evidence presented in this case establishes, without question, that there
was no continuing representation of Mr. Hupp by Lawyers. Instead, Lawyers represented
Mr. Hupp in two individual matters. First, they sought, unsuccessfully, to overturn the
WVCPRB’s termination of partial-disability benefits that Mr. Hupp had begun receiving
in 1999, by appealing the WVCPRB’s action at the administrative level, in the circuit court,
and, finally, in this Court. More than a year later, and after initially declining to do so,
Lawyers, in a second representation, sought to assist Mr. Hupp to obtain a new disability
award based upon an ostensible worsening of his pre-existing hearing loss. On this
evidence, we find Mr. Hupp has failed to raise a genuine question of fact to overcome
summary judgment, and we affirm the circuit court’s order ruling that Mr. Hupp’s
complaint, which was filed more than two years after Lawyers’ appellate representation
had concluded, was time-barred.
17 IV. CONCLUSION
For the reasons explained in the body of this opinion, the order of the Circuit
Court of Kanawha County entered on June 23, 2020, effectively granting summary
judgment to Lawyers, is affirmed.
Affirmed.