ZK Results – Summary Judgment Win Affirmed by West Virginia Supreme Court in Legal Malpractice Action
The West Virginia Supreme Court recently upheld the granting of summary judgment to Attorney Sharon Hall’s client in a legal malpractice action. The Court ruled that judicial error, not the Defendant attorney’s actions, caused the Plaintiff’s damages. Plaintiff had engaged the Defendant to represent her in a fraud action arising from a paternity dispute. When the Court denied Plaintiff’s motion for summary judgment on the basis that she had waited too long to raise the statute of limitations defense, Plaintiff’s case went to trial and a verdict was rendered against her. She then filed an action for malpractice against the Defendant attorney alleging her failure to raise the statute of limitations defense in an earlier motion caused her damages. The Court disagreed, holding that, because the attorney had preserved the defense in the answer filed on Plaintiff’s behalf, the defense remained viable and could not be waived by the passage of time. The Plaintiff appealed, arguing that the judicial error was foreseeable in light of the alleged dilatory conduct on the attorney’s part. The West Virginia Supreme Court upheld the trial court’s dismissal holding that the affirmative defense of the statute of limitations, once raised, is preserved through trial and is not waived.