Tyler v. Smithers

By Judge William R. Shelton On August 22» 1997, the parties appeared, by counsel, on the defendant’s Motion for Summary Judgment, and the Court took the matter under advisement Having considered the memoranda submitted, the arguments of counsel, the applicable law, and the trial transcript, the Court will rule as fellows. Summary judgment is appropriate only when no material fret is genuinely in dispute and the movant is entitled to judgment as a matter of law. Va. Sup. CL Rule 3:18. Viewing the frets and all reasonable inferences to be drawn from those frets in the light most favorable to the non-moving party, die Court finds that there are no issues of material fret genuinely in dispute and that summary judgment is therefore appropriate in the above-styled case. In this legal malpractice suit, Plaintiffs claim is premised upon the following Defendant-Attorney’s decisions: (a) a decision not to object to an architect as an expert in building inspection, (b) a decision to serve certain requests for admissions during the discovery phase of die trial, (c) an alleged failure in not proposing a jury instruction on die meaning of the word "guarantee,” and (d) an alleged failure to adequately cross-examine a witness regarding the damages evidence. After reviewing die transcript, the Court finds die Defendant justified in not objecting to an architect as an expert in building inspection, die requests [448] for admissions were logical, and fee defendant did not inadequately cross* examine fee witness regarding damages. In regard to fee jury instruction, whether an instruction on fee word “guarantee” would have altered fee outcome of fee underlying suit is highly speculative. Even if this Court had found Defendant’s judgment calls to be mistaken, feat would not be a basis for a malpractice suit hi Jones v. Dere, 36 Va. Cir. 519, 525 (1995), Judge Randall G. Johnson of fee Circuit Court of fee City of Richmond held feat "while fee Court has found no Virginia case on point, it is well settled m other jurisdictions feat an attorney cannot be held liable for fee good faith exercise of judgment on a client’s behalf, even when that judgment is mistaken.” Here, Plaintiffs claim does not furnish a basis for a legal malpractice action because these arguments involve tactical decisions reached in fee exercise of professional judgment. Woodruff v. Tomlin, 616 F.2d 924 (6th Cir. 1980).