Ortiz v. Barrett

278 S.E.2d 833, 222 Va. 118, 1981 Va. LEXIS 282
CourtSupreme Court of Virginia
DecidedJune 12, 1981
DocketRecord 790726
StatusPublished
Cited by40 cases

This text of 278 S.E.2d 833 (Ortiz v. Barrett) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ortiz v. Barrett, 278 S.E.2d 833, 222 Va. 118, 1981 Va. LEXIS 282 (Va. 1981).

Opinions

COCHRAN, J.,

delivered the opinion of the Court.

Juan Ortiz filed this malpractice action in the trial court seeking to recover damages alleged to have been caused by the negligence of the late Edward P. Barrett, an attorney not licensed to practice in Virginia, and Ronald E. Barrett, a Virginia attorney associated with him in handling certain personal injury litigation. At the conclusion of the plaintiffs evidence in a jury trial, in which the administrator of Edward’s estate was a party defendant but did not participate, the trial court struck the evidence as to Ronald and entered summary judgment in his favor. The trial [123]*123court further ruled that Edward had been negligent as a matter of law, submitted the case to the jury for a determination of damages, and entered judgment upon the jury verdict for Ortiz against Edward’s estate in the amount of $75,000.

In Ortiz’s appeal, the question raised is whether the trial court erred in striking his evidence as to Ronald. Resolution of this question, however, requires us to consider the duties, responsibilities, and potential liability of an attorney who is employed as local counsel by another attorney to perform specified legal services.

On April 29, 1973, Ortiz was injured when an automobile operated by Carlos Alva in which he was riding as a guest passenger collided in Prince William County with a vehicle operated by Charles E. Brown. Three other guest passengers in the Alva car, Aurea Gayoso, Maria Bustios, and Theresa Teran, were also injured in the accident. All four employed Edward P. Barrett, a member of the District of Columbia Bar, to represent them in their personal injury claims, and the attorney entered into settlement negotiations with the insurance carriers for the two drivers.

On April 28, 1975, the last day before the action would have been barred by the statute of limitations, Edward prepared and filed against Alva and Brown in the trial court a motion for judgment in which he joined as plaintiffs the four passengers in the Alva car. Edward signed not only his own name but also Ronald’s name and address on the motion for judgment.

Ronald, who was called as an adverse witness by Ortiz, had an office in Alexandria. He was not related to Edward and had never met him, although he had once seen him in the offices of Chaiken and Karp, a District of Columbia law firm, where Edward shared office space. Chaiken and Karp had employed Ronald as local counsel in Virginia in several law cases.

Ronald testified that in late April or early May of 1975 he received a telephone call from Edward inquiring whether he would serve as local counsel in a personal injury case that Edward was handling. When Ronald agreed, Edward said that he had a problem with the statute of limitations and requested permission to sign Ronald’s name to the initial pleadings. Ronald declined but suggested that Edward bring the motion for judgment to him so that he could review it, ascertain whether it conformed to Virginia requirements, and, after making any necessary revisions, sign it prior to filing. Edward then acknowledged that the statute of limitations had already run at that time, and that he had “taken the [124]*124liberty” of signing Ronald’s name to the motion for judgment and timely filing it. Ronald protested this unauthorized signing of his name but requested that he be furnished a copy of the pleading to examine.

By letter dated May 19, 1975, Edward forwarded a copy of the motion for judgment to Ronald. In the letter, Edward informed Ronald that he did not expect any further activity in the case, that the usual fee arrangement that Ronald had with Chaiken and Karp would apply, and that Ronald was to serve “as co-counsel without active participation in the case.”

Ronald testified that he saw that the motion for judgment was defective because it contained a misjoinder of the causes of action of all four passengers in the Alva car. He telephoned Edward, reported the problem, and suggested that Edward concern himself about it and take appropriate action. Edward replied that Ronald should not worry about the defect because the case would soon be settled. Ronald did not then or thereafter act to have his unauthorized signature removed from the motion for judgment. Under Ronald’s usual fee arrangement with Chaiken and Karp he received $100 for serving in a case as Virginia co-counsel; he billed Edward in this amount by statement dated May 27, 1975.

Counsel for defendant Brown timely filed a Motion to Dismiss all parties plaintiff in the motion for judgment except the first named, Aurea Gayoso, on the ground of misjoinder. He also filed an Answer and Grounds of Defense. Responsive pleadings, however, were not timely filed on behalf of defendant Alva. On September 12, 1975, counsel for Alva filed a Motion to Dismiss the action because of misjoinder, or in the alternative to dismiss three of the four parties plaintiff, and an Answer and Interrogatories. On October 22, 1975, on motion of Alva’s counsel, the trial court entered an order, endorsed “Seen And Agreed” by Edward and Ronald, granting an extension of time for filing responsive pleadings on behalf of Alva. Ronald testified that Edward and counsel for Alva had agreed to the extension of time, that he himself had nothing to do with that decision, that he was not asked to meet with the clients to assist in the preparation of answers to the Interrogatories, and that he never met them prior to Edward’s death. Nor did he investigate the automobile accident or interview witnesses.

Ronald talked several times with Edward about the misjoinder of parties plaintiff and the advisability of taking action to solve [125]*125the problem. On the last occasion when the matter was discussed, Edward gave further assurances that his negotiations were progressing and he expected the litigation to be settled shortly thereafter.

In November, 1975, at Edward’s request, Ronald researched the misjoinder question and, relying upon Code § 8-96,1 filed a Motion for Leave to Amend the motion for judgment by severing the four claims and permitting the plaintiffs to proceed under separate and independent pleadings. With Edward’s permission Ronald signed his name and Edward’s to this motion and on January 7, 1976, at Edward’s request, he alone appeared for the plaintiffs and argued the motion in the trial court. By letter dated January 20, 1976, the trial judge advised counsel that he was of opinion that he had no authority under Code § 8-96 to sever the claims, that the Motions to Dismiss would be granted as to three of the plaintiffs, and that plaintiffs’ counsel should decide which plaintiff would remain in the case.

Ronald testified that he informed Edward that in his opinion the judge’s ruling was incorrect and should be appealed, but Edward decided that it was not necessary or advisable to do so, and Edward alone made the decision to select Theresa Teran as the plaintiff to remain in the case. The order entered June 1, 1976, pursuant to the judge’s ruling of January 20, 1976, recited that at the January 7, 1976, hearing a request was made to consider the Motion to Dismiss as a Motion to Abate, that the Motion to Dismiss, considered as a Motion to Abate, was sustained, and that “by agreement of parties” all plaintiffs except Theresa Teran were dismissed. Without objection, this order was endorsed by Edward and counsel for Brown and Alva; it was not endorsed by Ronald. Edward did not file a Notice of Appeal.

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Cite This Page — Counsel Stack

Bluebook (online)
278 S.E.2d 833, 222 Va. 118, 1981 Va. LEXIS 282, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ortiz-v-barrett-va-1981.