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IN THE
Supreme Court of Virginia AT RICHMOND
RECORD NO. 790635
JOSEPH S. GOODSTEIN AND SHELDON RUBEN, Individually and d/b/a
G. & R. Associates,
..... Appellants v.
EVERETT G. ALLEN, JR., and CO-PARTNERS, et al., d/b/a Hirschler, Fleischer, Weinberg, Cox & Allen,
APPENDIX
JOHN C, LOWE LOWE AND GORDON 409 Park Street Charlottesville, Virginia 22901 (.804) 296-8188
Counsel for Appellants
..... Appellees
APPELLATE PRINTING SE'RVICES, INC., HERITAGE BLDG, RICHMOND, VA. (804) 643·7789
. TABLE Qf ·coNTENTS
1. MOT~ON FOR JUDGMENT FILED AUGUST 8, 1977
APPENDIX PAGES
1
2. PROOF OF SERVICE FILED AUGUST 9, 1979 .............. 11
3~ ORDER TO FILE PLEADINGS··~···· ................... ,. 12
4~ GROUNDS OF DEFENSE FILED SEPTEMBER 12, 1977 ........ 13
5. PLEA OF STATUTES OF LIMITATIONS FILED OCTOBER 3, 1977 23
6~ SPECIAL PLEA IN BAR TO COUNTERCLAIM FILED OCTOBER 4, 1977 ····················~······················· 24
7. MEMOR.ANDUl-t IN SUPPORT OF PLAINTIFF~ S PLEA IN BAR TO DEFENDANT' S COUNTERCLAIM FILED OCTOBER 4, 19 7 7 . . 26
8. DEFENDANT~S MEMORAl~DUM FILED NOVEMBER 30, 1978 ..... 31
9. PLAINTIFF'S REPLY MEMORANDUM....................... 39
10. ORDER SUSTAINING PLAINTIFF'S PLEA OF STATUTE OF LI.MITATIONS AND DISMISSION COUNTERCLAIM FILED JANUARY 23, 1979 ......... _.......................... 42
11. NOTICE OF APPEAL FILED FEBRUARY 16, 1979 ........... 43
MOTION FOR JUDGMENT
Comes now,· Everette G. Allen, Jr. , hereinaf;er referred to
as "Allen", ·and co-partner~, the lawfirm hereinafter referred to
as "H & F", and for this Motion for Judgment against Sheldon
Ruben and Joseph S. Goodstein, individually and trading as
G & R Associates, hereinafter referred to as "G & R", states as
follows: .. \ ~ ~ 1. H & F is a partnership which is duly admitted to and
~ ~· engages in the practice of law in the Commonwealth of Virginia
~~ ~ and has been so engaged at all times mentioned herein. !21 . "i ~
., «N= ~i 2. J~seph S. Goodstein and Sheldon· Ruben are residents ~ ~! ~~ ~ ~: # ·of the City of Richmond, State·of Virginia, and hold certain
~ i ' It, ·I J111 1 1 d i h c f H" i Vi . i . .... ,~1 rea estate ocate n t e ounty o enr co, rg1n a, as
!ca! . ' .· 1
' l11 ~ partners in a general partnership known as G & R Associates.
~. li 1 ~ \I !\ 3. On June 17, 1974, G & R met with Allen to discuss
~ l-- 'i H & F undertaking the representation of G & R in the prosecution
jl II of the claim against Froehling & Robertson. After an initial
!~ conversation between the parties, G & R did employ H & F as II r il its attorney for the purpose of investigating and prosecuting t. :I jj a claim on its behalf against Freehling & Robertson.
tl 4. The fee arrangement agreed to by the parties was
II G & R would pay H & F for its services based upon the normal
li hourly rate of those lawyers working on the Froehling &
r Robertson claim. fi ii II !I H t: ij
I
5. From June 17, 1974 through and including March 18,
1975, H & F investigated and prosecuted G & R's claim against
Froehling & Robertson.
6. On or about February 17, 1975, H & F advised G & R 1
I I ) t
t~t it could not continue representing G & R due to the fact ·
an attorney with H & F would be required to testify in the
suit brought on behalf of G & R against Freehling & Robertson.
Attached hereto marked H & F's Exhibit "1" is a copy of Allen's
I letter toG & R dated February 17, 1977.
7. On March 18, 1977, H & F provided G &.R with its
statement for services rendered through February, 1975 in the
sum of $3,670.55 •. Attached hereto marked H & F's Exhibit 11 211
is the March 18, 1975 statement for $3,670.55.
8. H & F's statement for services rendered to G & R
dated March 18, 1975 in the sum of $3,670.55 was based upon the
normal hourly rate of th~ lawyers working on the file at that
time, which G & R agreed to pay and which amount H & F alleged
to be the reasonaple value of the services rendered to G & R.
9. H & F ha~ made demand on G & R for payment of the
sum of $3,670.55 but G & R refused and still refuses to pay said
f sum or a~y part thereof and is thereby in breach of its
If .
~~ contractual
li relationship with H & F.
\
WHEREFORE, H & F demands judgment against G & R, join~ly ll' 1. and severally, in the sum of ~3, 670.55, plus interest from II H ii March 18, 1975 and its costs and expenses incurred herein. ,. ,I il I' II li 'I II J II l 1
EVERETTE G. ALLEN, JR. ·AND CO-PARTNERS, et al, d/b/a HIRSCHLER, FLEISCHER, WEINBERG, COX & ALLEN
2
I
~-A~ . Hirschler,~~t:i!chef, Weinberg, Second Floor, Massey Building Fourth and Main Streets
Cox & Allen
P. 0. Box 12085 Richmond, Virginia 23241
STATE OF VIRGINIA
CITY OF RICHMOND, to-wit:
I, ~~P ~~ ;he City o~chmond, Virginia, do
, a Notary Public in and for
certify that.Everette G.
Allen, Jr., partner and agent for Hirschler, Fleischer, Weinberg,
Cox & Allen, this day made oath before me. in my City aforesaid
that JosephS. Goodstein·and Sheldon Ruben, individually and
t1:ading as G & R Associates, are justly indebted to Hirschler, .
Fleischer, Weinberg, Cox & Allen in the sum of $3,670.55, without
offsets,· for the consideration stated in the foregoing MOtion
for Judgment and attached itemized statement of account, and
11 that the same is payable as therein stated.
ll 11 Given under my hand this~~ day of August, 1977.
ii My commission expires: ~ C)--/'/-· 1 <g·
I! ll :I I~ ii.
3
I:DW .. AO 5 HIRSCHI.I:JI
Al.loH 0. P'L1:19C14C:A
.JAY M WEINB!:PO
It:)!!£ AT A . ..:OlC • .JR.
HIRSCHLER AND FLEISCHE;R
'ATTORNE''(~ AT LAW
2ND F'I.OOR MA:i~tY BLDG. A. SU4JI.ON WI\.\.IAMS • .JR.
MILES CAqv, ..lA
... OHM P', KU.&.Y 4TH & MAIN STREETS, RICHMOND, VA. 23219
\,, C:H4q\.ES LONG, """· I:V£AETT£ G. AI.LEN, ..lA
ALU.t.l :J. IIUVI"I:NSTCIH
_,OSEPH L. LI:WIS
AICHAAU A. AE.PP
"'OHM W. LEE
.1AMC5 A, "A0M.AN
IUCHAAO W. HOGAN
ltOB&AT A. KAPL.AN
CHAAI.CS "· WITTHOCI'" DAAAY A. HACKNEY
.IANI'S P'. ftASCAL
OANI!I. M. MCCORMACK
SUSANNE L SNILL.ING
Mr. Joseph Goodstein 317 Greenway Lane Richmond, Virginia 23226
Mr. Sheldon Ruben 404 Harlan Circle Richmond, Virginia 23226
Dear Joe and Shelly:
February 17, 1975
H & F Exhibit "1"
P'II.E NO.
Attached is a copy of Froeling & Robertson's.~nswer to our interrogatories. From a reading of answer Hl(a), it is obvious that there will be a direct conflict in the testimony of Allan Buffenstein and Mr. Vogelsang at Froeling & Robertson. To establish the contract, it is going to be necessary to call Mr. Buffenstein as a witness, and this requires our withdrawal, as counsel, from the case. If you prefer, we will be pleased to assist in recommending new counsel and will of course cooperate with the preparation and, if necessary, the trial of the matter.
After reviewing this letter and the enclosed, and discussing it · among yourselves, please give me a call.
ECAJr/shs Enclosu:-es
Very truly yours,
Everette G. Allen, Jr.
4
H &.F Exhibit "2" 2570
74.0601
~ d': a Aauociatea ·. . . . ": . . . .. ~ ... ~·. ~ .. c/ ,..__t_.._.,_ ~ ft.~·.:· .. .. , .. " o }'J.easrs. ~~ ~ ~~ · · .
. ,. 404 liarlan Circle ··· ·: ·.· · RiclJ:I)o:l, Virginia 232.26
cl.a.1.m QGD.inat Ftoehl.1Dg & P.obertaon
·. . . \ . •·.
. ~
I .. , ·J. . . . .;·
II I t., • ' • 0 ·' ., • • • •• ••
i ,~ • . . . . ····~.
Legal scrv.lces rendered 'In connecd.on \doth Gbova, apclC1fically intra-office conferences J initial ueednga with :~ears. ttu1Jen and Coodsteilll rovis of files; contracts, plats, etc:. a ~ visits to site with l~ssrs. Coodstein,fit-rard, 1>\lorak, Froehl.1ng a Robertson, etc.' prel1mf.nary legal rescarcl&J con~ ccnferalCeS ldth cl.1tmts1 mttars re il'l'Jal·.~:r~nt of architect, en-. gi.naer, ao1ls ~a, etc.; cc:a!.in.Jia~ deal1..~ with FJ:oehling & Robel:taona receipt aa4 rev.tcw of subsequent mportsJ efforts re tfr. l'.cDClzrea cctu:inued lagol1:tmearch re theorl.ea of. C~J~JSe of action, ~ltsr.s with dCJmages, statuto of Umltaticns, . etc. 1 prepa:aticb aad fiUDs of DDtion fa: judpenta contf.mJe4 .... ~ confuencea with l-ttsars. Goodstein and luben; continued intra~·· : offico couferencea; matters re Mr. Uoncuro,. ppepuration and · fil:!."lg of interro&ator.l.ea i other d.scel.lanecus matters re 'With• drmwal £rem case, all aa la)re fully set forth on attached ~ ~ pJ:intcuts • •. • . • . • • •..• ". . • • •. ~ .. • • • • . •. : • ....... ·.• . • • .•. . . . . . . . .
• ~ • • • 0 • •
. r ' ·.r. . .• 0.: • -.. • • • - ;•.
CXlStS ADVI.liCEDa .. ·- · : : ... rt·.-: ... '· ~.-:o.·_~ .. .... 0 !'' • ••• •• I • '•' o. ' ~:---·~•:-;• • ' ·: ·~·~. •
$3,600.~
5
2570 14 G & R ASSOCIATES C/0 JOSEPH GOODSTEIN ·- . . . . 317 GREENWAY LANE RICHMOND VA
.-----.. ....... ., •••• --~··· •• --·.. • ........ ·--· •• - •• ·--·--. 0 ........ - ..... ~ ..... 0 • • ····-··-
74601/00 6/30/74. ·. H & F · C LAI l~ AGAINST FROEllNG & ROBERTSO.N
DATE 0 E S C R I P T I 0 N 0 F 6/17/74 CONFERENCE
. -··------- -·-· _, ···.-··--·-··------ • .. .... --··-. ... . . C L I EN T S R W
--· ------------- -------------- .. 6/17/74 CONFERENCE
JG SR EGA ASB JMW 6/17/74 CONFERENCE
• GOODSTEIN - TO PR'OPERTY . . . 6/17/74 CONFERENCE .
-·--····-----------·· . GOODS~EIN RUBEN ET Al 6/17/74 TELEPHONE CALL
. REUGEN PLUS JMW ---------·-·- --·::--·----·· ... ···--·-.. ·-· 6/.18/74 CONFERENCE .. ------------------------------------------------------------------------
W DVORAK 0 WARD 6/18/74 CONFERENCE . -.. -· . EGA . . .. -·--·--. 6/19/74 TELEPHONE CALL
WD JG ... 6/20/74 LETTER
PLUS JG TELEPHONE· 6/27/74 . LETTER. . ..
DVORAK .' ·. · - .
CTJ
C H A R G E S
~ 2?
I J,•T nO L: a. . .• J ll • t
. Cl.IE~:: ID:
t;"\
2570·. 74 .o6(
11~4~~U ~LUV~~~~ ..... •),
(~ .
-DA·T-~ ··---- ··-·· ATtY·- .. ·-----·-·-c·oo·g-··-·sGECD .. EX~LANATIO!f··-···---:-·-------·-_..;..-
~--------- --~-- --------------------~-~----------------
06-/30/74--- -·iss··----------,-----_--,- -·-g·.9- ·-cc"mp-ut.er-co:iver~ronliiibll~eCf as of 63o'
----o-67 j(fti4 ____ ....... ··cr~c· .. --· --13 -·-·--,.---9 s·-co.mpu ter ConversloilU-nbillecfas of 6307
06/30i74 EGA 14--·, 99-Computet: ConveJ:sic,~ Unbilied as-of_6_3·o-·/
07/01774 EGA. ·. 14 . 1 12 ·. Conference Clients plus 'AB, ·~vorak
07/01/74 EGA 14 1 12 ConferenCe HLS
07/02/74 ·--EGA --rr-·1 37 Telephone-call ~ Local · HLS, SR
07/05/74 -- ····--E~GA 14' 1 . 37 Telephone call - local HLS,Dvorak
o11oai1" --icfi--·--·nr-~·-,...--,-2-~t:t\er - . ·.·' ......
07/06/74
07/15/74
07/}6774
o·111e114
EG-A
ASB·.
,~ ..
• ASB
AS I!
07/22/.74 ASB
--o772'2i"74 · --,s·B
: 0.
• 14 1
7 .· 1 .. ' .. . ~·. ..
,. ' .. 7--, ,. 1
. ~. !··
7 1
1i
37
37
. ... :
. . . . :·~. ·:.
conference · ----HLS
. ,· teleph9ne call - locai : · · goodsteir. & memo to· file. & 1 f & r.. :.· .. : . .• . . . . . . . . ': . ; . ,,: •· ... . ..
Telephon& call - Locai Ruben
37 · ·: telephone cafl - local· ·:::·r~. ·: ,
. . . ~ . ... :.- lluhe·n ··.( 2) &. EGA ~:ei _._. F&R .::... ... . ... ;··· ...
: t :. I: . · ...... . . ... ' .. ..···. .. . . 37 .. - T-elephone call - Loc:ai
Vo;elsa~g & Ruben (2)
1--1--·-42·-----Other . . .. · vant site on .Darby town Rd." etc, · ..
o'fi 3ol"14 ___ _ ..... "iss-·····-·,-···:·-·-, _1_9 ____ b.oc\fmeii"E-tte'\'.few . ··----·-....:..__:_ __ Report ~com F & R & TC Buben
-oalo17-=l4 _____ ·--- ·Asa----.. ·-·1·----~r- -- -37 -...... Te.feptione·c:-a"Il-..:.--to·e:-a'l---·-· -·---. Ruben (2)
. . ---·- ____ _..._. _____ , ........ -.__..... ..... ----.. ....-.. __ ._ ... __,_.. ...... - ..... __ ...... ......-. ·- ·-·-······ .... ··-·-----·----·--· ... - ... -.·-~-----......
7
t;tt·TROL : • . . . . . C:CIE :~T ID:
·!0 r'\
2570.74 .a&( 'I .
J.·i~L.t;~ ~t;t<V J.t..~~ ... J.
(
·-DAtE -···--- .... ATiY··--·---·-c:c·o~£~ susco··. tfi'LAN'A"ifcii--··-··- .. ·-- ---·- --·.-··-··----.
---------- ----- -----~--~----------------~-----~-----~-. . -o-a-;·c2i14 ____ .... ASS------,· ···---f .. - .. ·f2 ...... ·- co'nferenc'e' ... __ .. . -·--·--··-· --- ..... -------
EGA· . . ·oelc-2/7·4-· ---·· ci·w --_f3···--,--.. --·,2-·- ··c·oii£erence--~-··------- ______ .;,__ __ _
ASB - F & R claim
-·----O~/C2/74 EGA 14 1 12 Conference
ASB I
oa/o3i74 EGA 14 1 23 File Re-vi-e-w·------:--plus ASB,:ltr to clients
08/05/7U EGA 14 1 ·37 Telephone call- loca~--·--·
SRplus ASD
·------. ·- -------·- --·-·-- ·----· ----- -· -~----------.._..._... . ._._..._,__, -.-. ...... 08/0o/7~ EGA 14 1 42 Other
OS/Oo/74 !sa-.--·-" -;··---,---·1·2- confe-rence------------------- ---ETA, Gccdstein & Fuben
oa/os/7~ ic"K ---,-4·--. ·;·--:r2-·--c-on!e·rence-----·: - --·· SR.,JG, AS.~
... OS/0~/74 ASB 7 1 12·· · ---con£.erence- ------
Goodstein, Ruben, JMW, EGA, & Witt
osi~o~/7~--.-EGA-·-;·4· ···--.. 1 1-2-··-coiif'~reiic:e·-;---···---w.-·--- ;._ ---·-liitt, clients, J~l\ ·
11/·o·s-174-:· ~:·ci.."·-----·iii-· ---, is---t-etter:--·--·-~------·--- ---:-., Moncure, JG
. . 1·1lf9/74. -· 2'G .. A ... -. --;4··-··~-- .. -,----····;2·-:---c:on£-ei:ence----.. ------·-:------.·---:--. . . . . . bah, jmw plus telepho~e. . 1.1/1.9/"74 BA~-- 16----,----;-~·-·-·c-6"ii£-6rence·--····-: ·---- -----
1 e~a · .. - ·
1.1/20774 ·- a·AH--.--16 ..... -,-- ----,-~r-·-J>-oc'l.wnent-!fe·v.te·w-----~---·----:--··--=---
. · ......... _ .. file and research ·
,,,2-7/'74·--:-··aAH _ .. ____ 16 .... -~-1··-·--·Js· .. __ Eies.eircil ___ .... _._ .. ··~-- -----· .. ··-·· ·- --.. --·----
1.1/29/'i4 ____ _ . dama~es - suit against enginee~s etc.
EGA 14-.: "1 .. _, "12 · ·c:onf"erence bah
-·--··-· ........... _ -·- ... ·-· --~ _._ .•.. ..,_-
...... ··-·---- .... -·-----·· ----··- .... ·-· - ····-· ----· .. ·-·. -· ··--···--···-· ---· --- ....... ~--. ._----
··-···. ·~··-·--·-·- .. ··-· ···--- ---····-·-- --·· --·----·· -~·· .8
---------------·=----~ ·---··· .. -----··-----·--··------------··---...;_·--
N '\ RO I :: · : .. . · : d . . . lTF""'-ZZIJ SEa VICES ... wL .. -CLIEt;'r ID: 2570.74 .060(-.
'I
. . oA7F.: ______ ATT-Y----.-c-cn>~-sus·co····£x1fi:!t:KrxoFr-
---~------- ---~~ -------------------~-------~-~------~--. ---,--,y2q,;;.--·-·--~- s·As·--T6--,---~-,2---·con£-e-rnce
ega
· o 1lo-2/7s·-·--····aifi··-- ·1·6- ---,---~--12'"- ---c:o·nf'ereiice ega - pleadinqs
. .. ·a·iloiiis _____ ··aiii ......... ·-·~a6 ____ 1 ~-·---12-- -c-c;·n£e.reiiC:--e·----:-·---··--------
Ol/o·2-i~7S
0 1/03}75
01/Cj/"1s
0 17if6/.1S ... .
~oodstein ... and rubin . . . ·As·s--·-r-7- ···;-----,-g-~----- Doculient aevrev--:-··.----- ---·
mj
·As if 7----,-. --,2-c·onfe-renC:e ·· bah, aj ·theory of case
BAH 16 1 12--confer-ence alan_b. research. pl~adi~g
BAH---,6···----,--32-Pre'Para·uon-of'"""'tourt-Pap·ers f . ' I' '• .. ' ,' • o m J . . "'·. . ..... ··, .. .. .
.:. .
. . .. • " •I . ..
o 1/17/:t·s----· s·JfH---·- f6---~---,-· ·-·3·2---PrEipara ffaii. of Courtiiapers · intet, me to prod cntrcl,rev,f&r pl,eva
t· -0 11-22"715 --E-GA-·--;-4 ·-·-··1-4.--12 . c·on:E'erence-·--. -----:--: ··:· .. · . .
bah plus goodstein · · · ·. ·· ·: · · · ·=·:·· .··
o-il.2il15----·--· BAH -·-·-··;·6·-.. ---, 1 ~----··· .. con£e~-n-c-e-~--------ega
o 1t23l7s---.-·tfi:tf---;-e---1--·--.J·r---feieiJ-ho-necali--=--rocal:--moncure, ruben ~
·-----· -------- -· ----------·~ ·-----~ -·---------- ·------------
. ---____ ........... . .......... -- •· -· --.. - ··-·-·---------·-· .... -. --···------ g: .. . · .. . ..
. • ~ ~· . .. :
~jN t KOL !: ·~ .. 0 • . .
"CliENT ID:
-DATE·-···-··--·---A"T1'Y - ...... - ........ _____ _ __ _. ____ _
~~---~---~-~---------~-----~------·-1 . . . 16 -··--;----,.9 ·- ···- liocunie.ilt.··- se_v .. fe~ ------..------
ans, to interrog. and
14 ·--1---28-·--:Letter--··memo bah
·aA1i--"16---1--·37 __ .... Tele"-liOne-·c:ail--ioCil ruben
memo
-------- ------ . ··------·-·------ ----···----------
-----·····--- ...... ··----. ···------..-.-...--...... - ... ___ . __ ......__, ._ ..
·- .... __...... .... •··· ·- -···-·-·-·· .. -..---- ··-·-.. ·--·-··- .. ·----···--------. .._.__...... .......... ~ ----- ~._._....
-·-~--·......_ _____ _,__ •.. ··----------·- -···· --.--··· .... _ .. ·--· ·- ··~·-··- -----·~··-.. -------·-· _.___.. -·-··--··· --- ·------···--· ..
___________ _.____......_....__ ··--··-· --~----· ----·-------··------- __ .. ______ .. _.. _____ ----·---....... ,..._._... .. __.. ...... ..._._
-.-------·· -·------ -··- . 0------ ·-.. -· .. -··--. ·-· . ·-·-- .. ----... ·-----··---·.·----·-----
------ -·····- ·--------... ~- _._.,_...,.._ .............. __.. .. .....,. ___ _
------------------------~-----~-___.__·-------------~-------------------------------------~-- · .. ·.
: -,-
·--------~.-----... --------·---· :·· ~ .• . ;
... ....
.·
··.
.. _____ ..... ~ -···----- ...... .._..,__. __ ...... -·-·---· --··· ···--·---·-----..................... __..__.. ................. ....
--- -----····-·--..... ··- ~--··· -- -· . --.--····-..- ... ·-----..
·-----··-·-·- -----· --·---··-----· ..... _ ·----· ·-- ... ------·---- _....,_.. ---· ---·....-- . ··--· ~
10
PROOF OF SER.VICE CS132011
llirginia:
In the Circuit Court of the City of Richmond, Division II,
LAw N o •....... ~:J~.?.::.~ ... Everette G. Allen, Jr., etc., plaintiff,
vs.
Josephs. Goodstein, indiv., etal~ defendants,
Returns shall be made hereon, showing service of Notice issued ___ 8_/_8_/_77 ______ _
with copy of Motion for Judgment itled _____ 8_/8 __ / __ 7_7 ________ ,.attached:
SERVE ON: Joseph S. Goodstein, ind and d/b/a G & R Associat 317 Greenway Lane
Sheldon Ruben, indiv. an d/b/a G & R Associates 404 Harlan Circle
:."'y l''' 'l!'i(··-,. '•J"".: • ~L-' ... ! r, ... , {0:: ·.u•.,.;.J,r.a . . ..J ve. . ~ .. d u:J;ij;jf. ~')· _ n •. •-•~ .. ···;z:. .. ~ .... ~ ............. q__ .. _f;~£ ~.: ...... b.r-'., ro.~/t(.~ .... ~f.cO'-··········~~ f. •.-:::-:-1t~=R C•· .{ ~~ •=-~r.' L'' .-:·-.·:··~ ·rr;r.:- ·"=' ,..'=" \ ., .... i, u.... .~k-r.:; .....•.•.••• t •• ~;"'\ ' ... &.;. u. s:x r tEN Y .:. ~:~;; ;..~: . • ;~.: i".Jffi"'Joln o.= SAr~t1E r: ........................................ -..................... , ... ~ ..................... ..
ANPR.:: h J. \tV&NS1"0N, ~: TY ~~EA:·~T
BY: ......... s;;j2..J.. .. ~riiPiiTY''SERGWif~":,.
SI;RGE'ANf'g FEE tr.A ..s-0 0 a. .. .,.,,.,,.,"/..,.. ~IAI 0 ,. F - 7 7 .............. --... r,
~....;.
AUG 9 1977 Returned and filed the .......................................... day of ................................................................................•
. . .~-~--~:~--~·~ .............. , CWk. 11 ~~.tJ.: .. _C.r .... ~ .. ,.:,;;.'="···· .... , 1hpuly 2Je'k
. ORDER
This day came the parties, ... by their counsel, and
epresent unto the Court that they had agreed that the time
ithin the defendants were required to file responsive pleadings
ould be enla~ged to September 12, 1977, for reasons being
ufficient to the parties, and the Court findi~g it proper to
o ~o,
It is ORDERED that the time within which defendants
.ay file ;respons~ve pleadi~gs in this case, be, and the same is,
:x:tended to September 12, 1977 •·
~TERED this/~l~ay of~ , ;un.
EEN: '
#a'!Uf A t/kc d(J;tf arry Hackney, p.q. (
12
. GROUNDS. OF PEFENSE
.. GROUNDS OF.DEFENSE AND COUNTERCLAIM
Come now the defendants, by their counsel, and state
the~~ grounds of defense to the Motion fo~ Ju~gment against them
as follow$:
1. ~ara9ra~h 1 of the Motion for au~gment is admitted
2 •. Pa~~graph 2 is admitted.
3. Pefendants admit that on or about June 17, 1974,
they ~et with ~llen to discuss H & F prosecuting· a claim in
the~~ behalf ~ga~nst Froehlin9 & ~obertson, but assert that the
pro~ecut~on of this claim was a ~a~t of tPe continuin9 re~re
~entation of G & R by H & F on the real estate matters o~~ginal
ly undert~ken by H & F in behalf of G & R in June of 1972. In
all othe~ respects the all~gat~ons of Paragraph 3 are denied.
4. The allegations ot P~r~9rap~ 4 are den~ed.
5. Defendants admit that duri~9 the per~od quoted in
Paragraph 5, Allen and perhaps certa~n other personnel of H & F
made some efforts and took some steps in the investigation and
prosecution of G & R's claim against Froehlin9 and aobertson.
However, during this same period of time, Alla.n S. Buffenstein,
an associate of H & F, knew that he had been guilty of breach of
contract and negligence against G & R in his initial work on the
real estate matters in the summer of 1972. In addition, he knew
th~t he had committed an actual fraud against G & R in the
p~ocess of handling the real estate matter and conducting .a real
est~te.clo~~~9 with G & R in October, 1972. At no time did he
I
di~c.lose this.to G & R, and insofar as G & R have been able to
dete~ine, he ap~arently did not disclose this to Allen, who was
WQrking on the matter ot G & R'~ claim ~gain~t 'roehl~ng and
Robe~tson •. This_guilty knowled9e of Buffenstein and thelia
bilitr fo~ his acts are imputed to H & F, insofar as Buffenstein
w~~ an a$soci~te atto~ey -~n that law firm acti~g within the
scope 9f his-employment at the time in qqestion. (At some
point, Buffenste~:n became a paJ;tneJ: ._in the law firm, but the
ex~ct date ~~ not known to G & a.) Therefore, H & F did not
"inve~tigate and ~rosecute G & R's claim ~ga~nst Freehling and
Robertson" as properly it ~hould have~ because of Buffenstein's
b~;eac;:n of contract, n~9lic;rence and tr~ud, and to the-extend that
the alle9ations of Par~sraph 5 of the-~Qtion for Judgment are
intended to imply that the invest~gation and prosecution of
G & R'a cl~im ~sainst Froehling. and aobertson was proper,
thorQ~9h, dil~gent and ethical, the alle9ations of Par~9raph 5
aJ;"e denied.
6. The alle9ation$ of f~~~~r~ph 6 are adm~tted,
except that Exhibit "1 '' is <!a ted Februa;r;y 17, 1975, not 19 77.
1. The all~gations of ~a~ag~apn 7 a~e admitted in
sofar as the statement was ~endered to G & ~. G & R deny that
the ~tatement was for services properly rendered and legally
cha~geable ~gainst G & R, and say that the statement was pro
vided on March 18, 1975, not 1977.
-8- G & R have insufficient info~ation about the
basis of the statement of services rendered, as alleged in
Paragraph 8, and must therefore deny so much of the allegations
as reg~rd the basis of the statement. G & R deny that they
a~~eed to pay the hourly rate of the lawyers working on1ite
file. G & R deny that H & F all~ged the amount to be the
~easonable value of ~he serv~ces rendered G & R.
9. As to the·allegation~ of Paragraph 9, G & R admit
that thef have refused and still refuse to pay any sum for
se~v~ces of H & F, $!nee no fees are legally due. G & R deny I
that this ~efusal is in breach of any contractual relationship
with H & F.
10. The breach of contract, n~gligence and fraud of
All~n auffenstein, .imputable to H & F and all of the partners of
H & F, includi~9 ~llen, constitute a breach of the attorney
client relationship and the att9rney-client contract between
a & F and G & ~, and constitute ~ bar. to the claim of H & F for
le9al fees cha~9eable against G & R·~s alleged in the Motion for
JtJdgnleni; ..
11. The knowle~ge and action$ of ~llan Buffe.nstein
con~tituted ~ conflict of inte~est by which Buffenstein and his
law fi~, H & F, and ~ts pa~tner~, were legally and. ethicAlly
b~r~ed from representi~g G & a in pursuit of a claim against
Froehli~9 and Robertson, (hereinafter $Ometimes referred to as
F & ~},since the actions and knowle~9e·of Buffenstein woul~
conatitute ~full or p~rtial ·defense·by Froehlin9 and ~obert$on
to the cl~ims by G & ~, and becau$e the actions and knowl~ge of
Buffenstein rendered Buffenstein, H & f and its partners liable
to G & R fQr b~each of contract, ne9ligence and/or fraud.
Therefo~e, it was imprope~ for H & F or ~ny of its parte~~ to
re~resent G & R because of this contlict of intere~t, and no
liab~l~ty ~or legal fees can arise from any such relationship. f
12. To the extent that any attorney's fees m~9ht have
been e~rned by any of the plaintiff$, they are offset by1~ages I
I
owed to the defendants by the plaintiffs on account of the
breach of contract of the plaintiffs and their agent, Allan F.
Buffenstein in regard to the legal representation of G & R by
H & F on the land matters in question.
13. At the time in 1974 that Allen negotiated with
G & ~ for the continued representation of G & R by H & F and the
pro$ecution of the claim of G & ~ ~gain~t F~oehling & Robertson,
Allan Buf~en~tein knew tha~ he would be an important witness in
~ny l~gal proceedings by G & a ~gainst F~oehl~ng and Robertson,
~d this ~nowledge o~ ~llan B~ffen$tein was imput~le to the
other pl~intif~s in this case. TneretQre, the pla~ntifts were
ethically and l~9ally. barred from ~epresenting G & R in its
cla~m ~ga.in~t Froehling ~d Robertson, ~nd G & B are not legally
liable f.Q~ any fees arising out Qf such a relationship, since
tney h.ad no knowledge of Buffensteins's actions and knowled9e.
14. Following the closin~o~ the real estate tran~
~ction Qn October 3, 1972, by Buffenstein, Buffenstein, by acts
~d Q~issions, in violation of his attorney-client relationship
w;th G. & ~~ willfully refrained from disclosin9 to G & R breache
of contract, neglisence and ~~aud of which he had been guilty in
h~dli~9 the l~nd transaction fo~ G & ~f and continued up unt~l
the p~e~ent date of the fili~9 of the~e pleadi~gs to cover up,
hide and m~ke s~cret his act~ons ~d knowle~9e in that r~9ard
fo~ the pur~ose of dete~ring G & R f~om di.scove~i~g his w~on9-
do~n9~ and obtaini~g l~9al red~e~s against him and H & F for
these w~o~gs. These fraudulent coveru~ actions by Buffenstein
~re imputable to all of the plaintiffs.
· ·coUNTERCLAIM
15. For ~nd as a part of its counterclaim, the 16
defendants inco~orate by refe~ence Par~graphs l throu9h 14,.
above, ~s a p~rt of thi$ counte~c1aim.
16. This counterclaim is asserted against the plain-
tiffs, jointly and severally.
17. The nature of this counterclaim is a claim
solely for breach of contract against the plaintiffs for their
representations of the· defendants in certain land transactions
duri~g the period of appoximately June, 1972 through February of
1975.
18. On June 5, ~972 the defendants and D~rbytown ~oad
A~sociates, ~ Vi~ginia partner~hip, entered into an agreement
whereby defendants agreed, subject to satisfaction of certain
cond~tiona, to purchase from Darbytown Road Associates appro
xim~tely 53.88 acres, of land,. s~id real est~te bei~9 located on
Darbytown ~oad, Hen~tco County, Vi~gini~.
19. G & R e~9~9ed attorney Jay M. Weinberg and his
l~w fir.m, H & r to represent them in the pu~chase of the afQre
mentioned property, and tQ aavi~e them on ~11 aspeets of the
acqui{:Siti.on of the property.
20. In late June or earl~ July, .1972, G.& Rand
Wej.nbe~g v~aited the property in question and, follow·ing a
cu~~o~y exam~nat~on of the p~a~e~ty, Weinbe~9 adv~sed G & R that
ther.e ~ppe~red tQ be potential ~roblem.s with ~e pro~exty
relat~~9 to fill dirt ~nd ~in~n9 which may have been conducted
in the pa~t. W.einbe~g recommended that they obtain a geological
survey of the property for the pu~ose o~ asce~taini~9 whether
tne J?X'QVisiqn::s of J!~~9_raph 4 tel of the purcl.lase ag-reeJllent h~d
been ~atis.fied.
21. B~sed on the dl$cussiqns with Weinberg, G & R . . 17
in~tructed him to obtain·the be$t geological advice available
with reg~rd to the provisions of. ~arag~aph_ 4(c) of the purchase
a9~eement and to spare no expense in doi~9 so.
22. ~n July, 1972 Buffenstein, on inst~uctions from
Weinbe~9, en9~9ed Froehling and Robert~Qn, Inc. to make an
examination of the property. In order to comply with the
requirements of Paragraph 4(c) of the purchase agreement, said
examination should have ascertained and determined whether any
fill dirt, underground rock or streams were on the property
which would increase the cost of construction for industrial use
as opposed to the cost of the same construction if such items
we~e not p~e~ent.
23~ Buffen$tei~p~ovided F & R·with a zoning section
sheet ~lat o~ the property.
24. At the time Buffenste~n obta~ned the afo~esaid
~ervtces of F & ~ on behalf of G & R, Buffenstein realized, or
should h~ve ~ealized, that any failure .on his.part to secure
competent ~nd adequate services for a complete examination of
the ~~ope~ty pu~suant to the afo~ementioned Par~sraph 4(c) of
the pu~chase ~g~eement would directly ~esult in G & R suffering
$ubst~nti~l dama9es.
25. At the time Buffenstein obtained the services of
1 & ~~ he eitner ~ealized, o~ ~hould have ~ealized, that if a
dispute ~rose at ~o~e time in the ~utu~e a~ to the report
rendered by r & ~ on the p~opert¥, it would be im~ortant to be
able to p~ove ex~ctly what inst~ct~ons F. & ~ rece~ved from him
a~ counsel for G & R, and to be able to snow that F & R.failed
tQ comflY with the instruct~ons p~o~e~ly. Buff.enstein real~zed, •'
o~ ~hould bave re~lized, that ~uc~ ~n~t~uctions should bel~
w~~ti~g to~ & ~pursuant to. good p~actice, cu~tom and us~9e,
and the exe~cise. of pxudence on behalf of G & R.
26~ Buffenstein, contra~ to the instructions from
G & R, only en9aged F & ~ to make a c~sory nwalk-over" Qf the
prope~tY. fo~ a minimum fee of $150. He knew, or should have
kn~n, that $Uch an examination by F & R would not satisfy the
requirements of G & R and would not result in a reasonable
inspection to assure compliance with the conditions of Paragraph
4(c}·Of the purchase a9~eement.
27. Buffenstein only engaged F & R to make a "walk-
over" examination of the property by one man, and told. F & R
that only a cursory examination was desired.because money was a
problem: Buffenstein "pled proverty" on behalf of his clients,
G & a, w~thout their knowledge and with the full knowledge that
G & R could have and would have paid any reasonable fee required
28~ On or about A~gust 16, 1972 F & R provided
Buffen~tein and G & R wit~ a written report to the effect that
there was no fill dirt pre~ent on the property.
29. F & R char.ged G &. a $150 for perfo~~9 said
contxact and G & ~ promptly p~~d the same.
30. On October 3, 1972 at the closi~g of the trans-·.
action ~n the offices of B & F, Buffenstein fe~9ned a telephone
call to w. H. Vogele~9, agent of 1 & a, ~nd reported to G & R,
whQ we~e ~re~ent with Buffenstein ~t the time he was m~i~g the
phone c~ll, th~t Vo9elsan9 waa on the other end of the telephone
conve~s~tton ~d that V~gelsa~g had just reported to Buffenstein
th~t G & a ~could bui.ld a twenty ~tory buildi~9 on the pro
pe~ty."
31. In ~~ct, w. H. Vogels~i never made s~chjfgpre-
sent~t~Qn to Buffepstein, and Buffenstein made the representa
tion to ~l~int~ffs in order to conceal his n~gliqence in the
m~e~ tn wh~ch.he had obtained-the ~ervice$ of 1 & a ~nd his
ne9l~gence in the ~nner Qf a~ce~t~inin9 w~ether the cond~tion~
Qf ~~r~9~~ph 4(cl of the purchase a~reement had been satisfied.
32. At the ~ame clO$i~9 with G & R, Buffenstein
verbally ~dvi$ed G & ~ that he had made investigation of complt
ance w~th the conditions of Paragraph 4(b) of the purchase.
agreement, when in fact he had made no such investi9ation of the
teXlne~ of PC\rp.graph 4 (b) •
33. In_9ood faith rel~ance upon the advice of
Buff-enstein as their lawyer, and upon his representations that
he had satisfied himself that all of the conditions of the
purchase agreement had been met, G & R closed the transaction,
purchased the property in question and caused the deed to the
property to be recorded in their names.
34. Subsequent investigation ascertained that the
conditions of Paragraph 4(bl of the purchase agreement relating
to the av~il~bility of sewe~ facilities wer.e not satisfied, and
that Buffenstein had failed to ascertain that the conditions of
Para9raph 4Qb} bad not been ~ati~fied prior to advisinq the
plaintif~s to close the trans~ction on Septelllber 26, .1972.
35. Follow~~9 the clo~in9 of the t~an~action on
SeJ?telllbe;r 26, 1972, Weinbe~9, ~utfen~te~n and H & F, or some of
tnem, jointly and seve~ally, intentionally and with intent
to defraud G & ~ entered into a cou;rse of conduct designed to
conce~l ~rom G & R tne n~gligence of .. Weinberg, _Buffenstein and
H & ,, to aet~aud G & a of their r~9httul l~9al recovery against
H & F in the handli~g of the real estate t~ansaction, to cover 20
up the n~9lfgence and breach of CQnt~act in such a way as to
deny G & a recovery, ~d to delay G & R.beyond the statutory
pe~tod of limitations within whlch G & ~ could obtain recovery
~9~inat ~~~d H & F. $aid intentional ~ctions and materials
mi~representation~ by H & F included, but were not limited to,
the followinc,J: . I a~ Continui~9 to as$ert to G & a that Buffen~tein had I
~e~ue~ted F & a tQ do ~ thoro~sh ~nvest~gation without r~9ard to
coat, when, ~n fact, this wa~ not true.
b. Continui~g to as$ert that w. H. Vo9elaa~9 had
represented to Buffenste~n by telephone at the time of the
closi~9 that the prope~ty was capable of su~~ortin9 a twenty
story build~~9, when, in tact, this was not true.
c~ CQntinui~9 to ~epresent to G & R as counsel in
the face of obvious conflict of interest between B & F, on the
one hand, and G & R, on the other hand, to include the filing of
a motion for judgment against F & R in January, 1975.
d. Failing to withdraw as counsel from G & R i~e
diately upon having knowledge, actual or constructive, of the
negligence and breach of contract of Buffenstein, Weinberg, and
H & F.
e. M~sleadi~g G & ~ by words or action~ in~o fore-
90~~9 o~ delayl~9 their obtaining competent legal repre~entation
to ~~~e~t cla~ms ~9ainst .H & F until some of the periods of
l~tattona of ~ction~ against H & F by G & R may have expired.
-t~ Other. divers acts, words or omissions which were
intended to, and in f~c.t·did, .. lull G & B. into a sense· of
~ecurity with H & ~ a~ their counael, to the great detriment of
G & a, and in violation of H & 1's contractual, legal and 21
eth~cal obli9~tions to G & ~.
36. ~$ a direct and fo~eseeable result o~ the failure
of H & F p~ope~ly to perfor.m their cont~act of lesal re~resenta
tton, G & ~ bave been dam~ged and ~ave incu~red substantial
e~en$e~ in the ~urcha$e, p~y.ment for, and attempts at orderly
$~le of s~~d pr9pe~ty in order to miti9ate their damages, and in
othe~ fore~ee~le dam~ge~ •
. 3 7. ·~~ ~ dix-ect and fore~eeable ;re~ul t of tlle breach
of contract of H & F in coveri~g up and conceali~g their negl!-
9ence, b~eac~ of contract ~nd fraud, G & R have been damaged. and
have tneu;r~ed substantial expenses in the purchase of, payment
~o;r, ~nd ~ttem~ts at orderlr sale of said p~o~erty in order to
miti9ate their damages, and in other foreseeable dama9es.
WHEaEFO~, G & R pray that the Motion for Judgment
ag~inst tnem be dismissed, that they be awarded dama9es for
bre~ch of cQntract ~n the amount of $140,000.00, and that they
be ~~anted any other relief to which tbey are entitled.
c. Lowe e and Gordon, Ltd.
9 Park Street
JOSEPH S. GOODSTEIN, and SHELDON RUBEN Individually and t/a G & R
Associates
By Counsel
Charlottesville, Virginia 22901 (804-296~8188)
PLEA OF STATUTES OF LIMITATIONS
Come now the plaintif~s, Everette G. Allen, Jr., and CoPartners,
et al., d/b/a Hirschler, Fleischer, Weinberg, Cox & Allen, by counsel,
hereinafter referred to as "A~len," and say that as to them the several
alleged causes of action stated in the Defendants' Counterclaim filed
herein are founded upon claims that are barred by the Statutes of
Ltmitations set forth in Section 8-13 and 8-24, Code of Virginia, as
amended, and were so barred before the filing.of the Counterclaim in this
action against the plaintiffs,
EVERETTE G. ALLEN, JR., and COPARTNERS, et al, d/b/a HIRSCHLER, FLEISCHER, WEINBERG, COX & ALLEN
sy·~~~~ Of Counsel
WilliamS. Smithers, Jr., THOMPSON, SA VAG~, SMITHERS, AND MARSHALL, 5911 West Broad Street, Richmond, Virginia 23230
: . CERTIFICATE • • •.; I #,• , • -~ • '
23
V I R G I N I A:
IN THE CIRCUIT COURT OF THE CITY OF RICHMOND, DIVISION II,
EVERETTE G. ALLEN, JR., et al, Plaintiff,
v.
JOSEPH S. GOODSTEIN, et al, Defendant.
. SPECIAL PLEA IN BAR TO COUNTERCLAIM
Come now the plaintiffs, Everette G. Allen, Jr., and Co-partners,
et al., d/b/a, Hirschler, Fleischer, Weinberg, Cox & Allen, by counsel,
and state that the defendants are barred from prosecuting their counter-
claim for the following reasons:
(1) This action is barred by doctrine of res adjudicata in that
the final judgment re. ~ered in the case of Joseph S. Goodstein, et al,
etc., v. J. M. Weinberg, et al, filed in this Court as Civil Action No.
10108-L is conclusive upon them.
(2) This action is barred by the doctrine of ·Election of Remedies
in that the defendants had an election as to whether to prosecute their
claim against these plaintiffs in tort or in contract and having in the
case of JosephS. Goodstein, et al, etc., v. J. M. Weinberg, et al,
elected to prosecute their clatm as one in tort and having prosecuted
this clatm to final judgment are prevented from bringing the same claim
under the theory of 'contract.
WHEREFORE, the plaintiffs pray that the counterclaim filed herein
be dismissed.
al,
WilliamS. Smithers, Jr., THOMPSON, SAVAGE, SMITHERS AND MARSHALL, 5911 West Broad Street, Richmond, Virginia 23230.
CERTIFICATE
I herepy certify that I have mailed a copy of the foregoing pleading
to John C. Lowe, Lowe and Gordon, Ltd., 409 Park Street, Charlottesville,
Virginia 22901, counsel of record for the defendants, this ~~ day
of October, 1978.
r MEMORANDUM IN SUPPORT OF PLAINTIFF 1 S PLEA IN BAR TO DEFEND~ 1 S 1 COUNTERCLAIM
To the Honorable Judges of the Aforesaid Court:
T~is case is controlled by the doctrine of Election
of Remedies and Standard ·Products v. Wooldridge, 214 Va. 476
(1974). The defendants seek to recover for" ••• breach
of a contract against the plaintiffs for their representation
of the defendant in certain land transactions during the period
of approximately June 1972 through February 1975." (Motion
for Judgment, paragraph 17).
The defendants having had at one time concurrent remedies
for the same alleged wrong and having elected to pursue. one
~of them, and having prosecuted his election to judqment, they
may not thereafter brinq the same demand on the other form
of action.
A comparision of the allegations contained in the counter-,
claim and of the allegations contained in. the Amended Motion
for Judqment of 9-24-75 filed in this Court in the case of
Joseph s. Goodstein and Sheldon Ruben, individually, and d/b/a
G & R Associates, v. Jay M. Weinberg, Allen s. Buffenstein,
Rirschler & Fleischer, Attorneys, A Partnership and Hirschler,
Fleischer, Weinberg, Cox & Allen, Attorneys, A Partnership,
filed in this Court as case no. 10108-L reveals that the claim
is the same as that set forth in the earlier action and the
parties in interest are the same. G & R Associates (G & R)
prosecuted case 10108-L to a final judgment in this Court,
which was affirmed on appeal. See Order of the Supreme Court
of Appeals of Virginia attached. In 10108-L, ~ & R set up counts in contract and tort.
On demurrer, this Court required G & R to elect between tort 26
I i I
l. I~ li
II I· ·I I
I I
I
and contract and G & R elected to.rt. Raving made such selectio 1
and having prosecuted the selected theory of recovery to final
judgment, the pla~ntiff is bound by his election.
In Standard Products, the Court cited Sangster ! Als
v. The Commonwealth, 58 Va. (17 Gratt.) 124, at 13~ (1866):
It is true that where a plaintiff has concurrent remedies ~or the same demand, and he elects one of them and prosecutes it to a judgment, he cannot then resort to another, but is bound by his election, although it be a bad one •• • Therefore,. when A wrongfully takes the property of,B and sells it, he may bring trespass, trover, detinue or assumpsit for money had and received, against A at his election7 having elected one of these forms of action and prosecuted it to iudgment, he cannot then abandon it and bring another.
• • • It would be inconsistent to permit him, after· electing and prosecuting to judqment either of the three last named actions, and especially the last to resort to the first ••••
Standard Products, itself, was··the more difficult case.
There the plaintiff, having brought his action against two
defendants, Wooldridge and Finnegan with two counts, one
alleging a tort and other alleging a breach of contract,
• but both based on the same facts, and being properly forced
to an election under the then existing practice, elected
tort and continued the case generally, the plaintiff, Standard,
then filed a s~parate suit aqainst the same two defendants
alleging a breach of contract under the same facts as previous!
set forth. The plaintiff entered a non-suit against Finnegan
in the contract action and obtained a default judgment against
~iooldridqe.
Finnegan then alleged that the judqment against Wooldridge,
which remained unsatisfied, constituted an election of remedies
and barred further prosecution of the tort action ~7inst
I' tl II ,, ,I ,,
li r I! !i
I~ J! .. i
l i
,I ,, :I
li II ,. ji .! I' ij
I!
I ~ I
him. The Court found that Standard's filing of the contract
action amounted to its true election and having followed
it to final judqment, the plaintiff was not permitted to
proceed on tort even against a person not a party to the
contract action. They would be joint tort feasors with the
defendant in the contract action. .Had the plaintiff elected
originally to proceed in tort.
The Courts cited Roberts v. Moss, 127 Xy. 657, 106 s.
W. 297 (1907) with approval. In that case, the principal
which the plaintiff presently espouses was affirmed as a
defense of res adjudicata, whether the nomenclature is proper
the application seems universal. See qq A. L. R. 2d 1315.
The public policy supporting the doctrine of Election I
of Remedies like that of res adjudicata, collateral estoppel,
estoppel of judgment, multifariousness and splitting of causes
of action is that of social value of endin~ litigation and
an elemental view of fairness. G & R having had its day
in Court and having in this instance having taken its case
to the Supreme Court of Appeals of Virginia, should not be
allowed to relitigate the same issue •
William s. Smithers, Jr.
... EVERETTE G • ALLEN 1 JR. and COPARTNERS, et al., d/b/a HIRSCHLER, FLEISCHER, ~INBERG,
BycoxZj~ Of Counsel
THOMPSON 1 SAVAGE 1 S!1ITHERS & MARSHALL 5911 West Broad Street .·. Richmond, Virginia 23230
I
I I I . I
VIRGINIA:
f, t!UJ !J:Lj~Hme l&u~Jtt o/ "11-?nia /,Jd al lhe 9'up1tem8 ~~ f!Aui/Jnrp 1m, l~s
~t"~ ojgfic~nloJI.d on Friday .l~e 9th · t:la/1 o/ June, 1978.
Joseph S. Goodstein and Sheldon Ruben, individually and t/a G & R Associates,
aqainst Record No. 770373
Jay M. Weinberg, Allan s. Buffenstein, Hirschler & Fleischer, Attorneys, a
· Partnership, and Hirschler, Fleischer,1
Weinberg, Cox & Allen, Attorneys, a Partnership,
. .
Plaintiffs in error,
Defendants in eFror.
Upon a writ of error to a final order entered by the Circuit Court of the City of Richmond, Division II, on the 22nd day of November, 1976.
This day came again the parties, by counsel, and the cou~t
having maturely considered the transcript of the record of the final order.
aforesaid and arguments of counsel, is of opinion, for reasons stated in
writing and filed with the record, that there is no error in the final
order complained of. It is therefore adjudged and ordered that the said
order be, and the same is hereby, affirmed, and that the plaintiffs in
erro~ pay to.the defendants in error thirty dollars damages, and also
their costs by them expended about their defense herein.
Which is ordered to be certified "to the said circuit court.
Defendants in error's costs:
Attorney's fee. Printing brief - Code, s 14.1-182 - Not to exceed $200 for each defendant in error
Teste:
A Copy $50.00 I
•este:
?
VIRGINIA: .l'n th. !/up,_.. rc-t o/ "/1~nia kid at Me _%p.,eme ~ ~ m th. .
~·7 o/~~,J tJn Thursday I~B 31st Ja/1 o/ A~gust, 1978.
Josephs. Goodstein, et al., etc., Plaintiffs in error,
against Record No. 770373
Jay M. Weinberg, et al., Defendants in error.
Upon a Petition for Reheari~q
On consideration of the petition of the plaintiffs in error I
to set aside the ju~gment rendered herein on the 9th day of June,
1978, and qrant a rehearing thereof, the prayer of the said petition
is denied.
A Copy,
Teste: . -:"
. '.~ Y.~ f.""
30
.JOHN C.L.OWE
P". GUTHRIE GORDON Ill
ANNIE LEE CONGDON
CRAIG T. REDINGER
LAW OFFICES
LOWE AND GORDON L.IMITitD
409 PARK STREET
CHARL.OTTESVIL.L.E, VIRGINIA 22901
November 15, 1978
The Honorable William E. Spain Judge, Circuit Court of the City
of Richmond, Division II Tenth and Hull Streets Richmond, Virginia 23224
IN RE: Allen, et al. v. Goodstein, et al. - Case:Number A-159-L --
Dear Judge Spain:
AREA COOE 804
296·8188
This letter memorandum is being submitted pursuant to our pretrial conference with you on ~ovember 8, 1978, at your office. I have sent a copy to Mr. Smithers so that he may respond.
1. Election of Remedies Issue
The pretrial conference in your office resulted in the narrowing of the election of remedies issue down to a very narrow legal issue, as I understood the outcome ·of that meeting. The remnant issue is simply whether the contract counterclaim of the defendants/counterclaimants is barred under the doctrine of election of remedies where the final disposition of the tort claim against the same parties was a bar of the claim on the basis of the statute of limitations, rather than a judgment on the merits.
It is clear under Virginia law that the institution of a law suit, without more, does not constitute an election of remedies such as will bar another claim in seeking a different remedy. Pollard and.Bagby Co. y. Morton G. Thalheimer, Inc., 168 Va. 529, 194 S.E. 701 (1938). The doctrine of election of remedies is an equitable one, founded on estoppel. In grappling with the precise nature of this doctrine, the Virginia Supreme Court stated:
~ {' ~J$i~·f7~ ~~--,;;~~
31
The Honorable William E. Spain November 15, 1978 Page Two
But an election, to be conclusive must be efficacious to some extent at least. The mere bringing of a suit is not a determination of the right. A party against whom the estoppel is pleaded must have received some benefit under an election. Or he must have caused some detriment to the other party.
Pollard, supra, at 533, quoting Register ~· Carmichael, 169 Ala. 588, 53 So. 799. Thus, the issue is at least narrowej by that case to the question as to what constitutes benefit to the plaintiff or detriment to the defe~dant.
The Pollard case presents excellent quidance for the court in the case at bar. In Pollard the plaintiff had brought a suit in equity to obtain specific performance of an agreement between two sales agents concerning the division of a sales commission on a piece of land. In response to the defendant's demurrer that plaintiff had an adequate remedy at law, the plaintiff filed a motion for judgment on the same set of facts. When the first action resulted in a hung jury, the plaintiff renewed his efforts in the equity suit for specific performance. The defendant then claimed that the prosecution of the action at law constituted an election of remedies prohibiting further efforts in the suit in ~quity. In applying the above-mentioned benefit-detriment test, the court refused to bar the equity suit, finding
In the instant case, the plaintiff has received no benefit from the common-law trial and the defendant has lost no right although he has been put to the trouble and expense which it necessitated. Beyond this, there is nothing to indicate that Pollard and Bagby were injured by this shift in position from law to equity.
Pollard, supra.
In the case at bar, a similar situation existed, although not idential. Beyond the mere trouble and expense of the dispute as to the applicable statute of limitations, the
32
The Honorable William E. Spain November 15, 1978 Page Three
plaintiff in this case has undergone no detriment. In fact, the detriment is substantially less than that of the two-day trial and all of the discovery and preparations, which the defendant was subjected to in Pollard. As in Pollard, the defendants/counterclaimants in th~s case have rece1ved no benefit from the first proceeding in tort, which was barred by the statute of limitations. Nor, as in Pollard, did the defendants/counterclaimants have any decision on the merits of the tort claim, either for them or against them. In fact, the better argument would be that the plaintiffs in this case are estopped from complaining about election of remedies, since it was their action in pleading the statute of limitation which prevented the tort action from concluding on the merits of the claim, thus resolving the issue for all parties.
As noted above, the doctrine of election of remedies is basically equitable in nature. In the absence of harm to the plaintiff in this case, or benefit to the defendant/counterclaimants, there is no basis fo.r interposing an equitable bar against the defendants/counterclaimants which would prevent them from finally having their day in court on the merits of their claim. Indeed, in suits in equity, there are no common-law statutes of limitations, but only the doctrine of laches. In the same spirit, an equitable ba% should not be interposed. to prevent the prosecuti.on of an action in contract when a tort action has been barred by the defendant on the technical ground of the bar of a statute of limitations.
The plaintiff'·s reliance on the Standard Products v. Wooldridge case, 214 Va. 476 (1974) is unfounded. The crucial distinction is that the plaintiff in Wooldridge had a judgment on the merits in his favor in the full amount of his prayer for damages. The defendants/cross-complainants in this case have not yet had their day in court on the merits of their claim against the plaintiffs. In Wooldridge, the Supreme Court of Virginia simply upheld earlier cases to the effect that the filing of a suit does not constitute an election by itself, but that prosecuting an action to a final judjment on the merits does constitute such an election.
33
The Honorable William E. Spain November 15, 1978 Page Four
..
Counsel for the plaintiffs has conceded that the thrust of their election of remedies argument is not with regard to the recovery against Freehling & Robertson, but as to the bar of the period of limitations on th.e tort claim against the plaintiffs in the,earlier tort suit. In the Wooldridge case, there was no second action against Wooldridge on a different theory of recovery, which would be necessary in order to make that case analogous and applicable to the case at bar.
Without a final judgment on the merits, either for or against the plaintiffs, they have no equitable right to bar the· pursuit of any remedy for which still exists a valid right of action, regardless of the theory of recovery.
2. Tolling of Statute of Limitations
Mr. Smithers has outlined in his letter of September 27 to me, a copy of which was ... sent to the court, four occasions, in the abstract, which he believed could be relied upon by the court as the date of tolling of the statute of limitations. He also suggests specific dates which.apply to each of the four. While I do not necessarily believe that these are exhaustive, I would point out that under any of them, we prevail on the statute of limitations questions raised.
(a) Termination of Employment - The defendants/ counterclaimants plead facts which, if believed, show that the termination of employment did not take place until February 1975, at the earliest. If those allegations are believed by the trier of fact, on the merits, then by Mro Smithers' own contention of the law, the counterclaim was filed well within a three-year period of lLmitation. This means that under the first basis for considering tolling'· a fact issue is presented for a jury to determine upon proper instruction.
(b) Date of Alleged Negligence - .This provides another recovery on a different theory of tolling. We have pleaded obstruction by conscious and willful fraudulent concea~ent of the malpractice and of the inadequate examination of the land, and this obstruction would continue until cured by discovery of the malpractice and concealment. (~ discovery
34
The Honorable William E. Spain November 15, 1978 Page Five
of the defect in the land) or until the fraud was disclosed or disavowed by the plaintiffs in this action. Under this theory, the statute would have been tolled by the obstruction of the plaintiffs until discovery of the fraud by the defendants/counterclaimants at the deposition of Mr. Vogelsang in the spring of 1975. 1
{c) Discovery of the Neg~igence. The discovery of the defect in the land occurred not later than June 17, 1974. The fraud perpetuated on the date of closing, which obstructed the discovery of the malpractice and the failure properly to examine the land~ would continue, as in paragraph {b), above, and, in addition, would be tolled by the representation of the plaintiff law firm during the period June 17, 1974, through February 1975, when the employment relationship was terminated. This again would bring the action well within the three-year period of limitation because of the tolling effect of the fraudulent concealment and the representation by the plaintiffs.
(d) Damages Incurred. Essentially the same argument as sub-paragraph (b), above.
Under any of the four theories of tolling the factual allegations of the counterclaim are sufficient to withstand the plea of statute, and make it a jury issue of fact as to whether the tolling is in effect. One of the ways this could be dealt with is to have specific interrogatoraes for the jury on questions which would give the court a basis for making a ruling on the statute of limitations, as well as giving the jury the general issue of liability and damages.
3. Ter.mination of Employment
Defendants/cross-complainants disagree with the position of the plaintiffs indicating that the law is unclear in Virginia on the termination of employment of an attorney, and how it affects a statute of limitations. Defendants/ counterclaimants believe that the case of McCormick v. Romans and Gunn, 214 Va. 144 (1973) is conclusive and clear.
35
The Honorable William E. Spain November 15, 1978 Page Six
As the court said in that case:
But where there is an undertaking which requires a continqation of services, the statute of limitations does not begin to run until the termination of the undertaking. [cite] This special rule is applicable to a continuing agreement between attorney and client. [cite] Indeed it is particularly appropriate to an attorney-client agreement in view of the confidence and trust inherent in that relationship. [cite]
In this case, the McCormicks' allegations show clearly that the agreement between Mrs. McCormick and the fir.m of Romans and Gunn required a continuation of servicesby the partnership from April 1963, until August 1967. The allegations further show that the agreement was terminated when the misappropriations by Romans were discovered and demand was made in October 1967 for payment of the balance claimed to be due Mrs. McCormick. The statute of limitations began to run only upon such termination in October 1967 ••••
McCormick, supra, at 148-149. This ruling is on all fours w~th the present case at bar. By the pleadings of the counterclaim, the relationship was agreed to continue after October 3, 1972, and through to the point when the defendants/counterclaimants fired the. law firm in February 1975. Therefore, regardless of whether the tolling rules suggested in paragraph 2 (b), (c), and (d), above, are appropriate, the termination of employment is an overriding tolling rule which makes clear that the counter-claim of the defendants/ counterclaimants is not barred by the three-year period of limitation in this case. At least that is true until a jury resolves any factual dispute as to whether the allegations of continued employment made by the defendants/counterclaimants are true.
36
The Honorable William E. Spain November 15, 1978 Page Seven
4. Tolling by Obstruction Through Fraudulent Concealment
The case of Hawks v. DeHart, 206 Va. 810, 146 S.E. 2d 187 (1966) clearly shows that if the allegations of the defendants/counterclaimants a~e believed by the jury, then Buffenstein fraudulently concealed and obstructed the malpractice claim of the defendants by such willful and fraudulent misrepresentations. That would toll the statute of limitations in Virginia until the fraudulent concealment of the malpractice is disclosed or discovered. After reciting ~hat in general in personal injury actions the limitation on the right to sue begins to run when the wrong is done and not when the plaintiff discovers that he has been damaged, the Supreme Court of Virginia in Hawks recognized that had the plaintiff's evidence sustained her allegation that the defendant "did knowingly, actively and negligently conceal from the plaintiff [malpractice]" it would have tolled the.running of the statute of limitations. The Court cited the case of Richmond Redevelopment & Housing Authority v. Laburnun Const. Corp., 195 Va. 827, 80 S.E. 2d 514.£or the proposition that:
• • • The character of fraud necessary to toll the statute must be of a variety involving moral turpitute. A defendant must intent to conceal the discovery of the cause of action by trick or artifice and must have thus actually concealed it from the plaintiff in order for the exception to apply.
In the Hawks case, the court found that the plaintiff's evidence failed to establish trick or artifice or
· purpose on the part of the defendant, but left no doubt that had the evidence established such a trick or artifice or purpose, the statute of limitations would have been tolled.
There is no question under Virginia law that if the allegations of the defendants/counterclaimants concerning
·Mr. Buffenstein's fraudulent concealment are believed by the trier of fact, the statute of limitations would be tolled by this fraudulent concealment. Thus, at best, since the fraudulent concealment of malpractice by Buffenstein was not
37
The Honorable William E. Spain November 15, 1978 Page Eight
.·
discovered according to the pleadings until spring· of 1975, this presents a fact issue for the jury upon proper instruction and perhaps special interrogatory.
For the foregoing reasons, the plea in bar and the plea of the statute of limitations should be overruled. In the alternative, the court should take the plea of the statute of limitations under advisement pending a resolution of the fact issues by the jury, and should require the filing of responsive pleadings by the plaintiffs so that this case can be matured and set for trial.
JCL/lmy
crohn c. Lowe Counsel for Defendants/counter
claimants
cc: Williams. Smithers, Jr., Esq.
38 ..
LAW OFFICES
THOMPSON, SAVAGE, SMITHERS & MARSHALL
HARRY L. THOMPSON .JULIAN E SAVAGE WILLIAM S. SMITHERS, .JR. WILLIAM R. MARSHALL, .JR.
OREGOAY 0. FOREMA.N DARRY L. PROCTOR
!5911 WEST BROAD STREET
RICHMOND, VIRGINIA 23230
December 4, 1978
The Honorable William E.Spain Judge of the Circuit Court, City of Richmond, Division II Tenth and Hull Streets Richmond, Virginia 23224
Re: Allen v. Goostein 2 et al, No. A-159-L
My dear Judge Spain:
MAILING ADDRESS P. 0. BOX 84t47
RICHMOND, VIRGINIA 23230
AREA. cooa: 804 .
TELEPHONE 288•4007
.. LEASit RI:P"ER TO IPILC NO,
In .response to Mr. Lowe's letter memorandum to you dated November 15, the Plaintiff reasserts herein the contents of its memorandum in support of the plea in bar to the Defendant's counterclaim.
Additionally, the Defendants seem content to rely on Pollard and Bagby Co.~ Morton~ Thalheimer, Inc., 169 Va. 529, 194 S.E. 701 (1938). We contend that Pollard and Bagby. is more than dtstinguishable, it is different in every way. In Pollard and Bagby, the Plaintiff filed a suit in equity andzwhile it was pending filed a Motion for Judgmen~ on the same facts apparently somewhat standard practice in those days when discovery was compellable in equity but not in law. Initially, no motion to compel election was filed and no election was made. The Plaintiff sufferred a mistrial on the action at law and then moved to revitalize the suit in.equity. At this point the Plaintiff was put to an election and elected equity. After judgment in equity in favor of the Plaintiff, the Defendant appealed asserting that the mere filing of the action at law amounted to a binding election. The Court followed a long-standing rule prevailing in other states and in Virginia with regard to equity and law and held that the mere filing of the suit on· the one side of the Court or the other did not amount to a binding election. This interpretation was given to Pollard in Jennings~. Realty Developers, Inc., 210 V~. 476 (1970), wherein the Court emphasized that only one case was prEs cuted to judgment. Without belaboring the point, the Plaintiff's contention in the case at bar is that Goodstein .and Rubin in Case No. 0108-L filed in this Court were met with a demurrer filed by Hirschler nd Fleischer, the specific purposezo~ the demurrer being to require the Plaintiffs therein to elect between misjoined causes of action as asserted in contract and tort based on exactly (Emphasis Added) the same facts to support both causes of action. This Court's Order of March 4, 1976, so put Goodstein and Rubin on terms. To permit Gbodstein and Rubin now to have another bite at the same apple, in the opinion of counsel, is inconsistent with the public policy supporting the doctrine
The Honorable William E.zSpain -2- December 4, 1978
of election of remedies and litigation on the matters asserted should be put to rest.
As to the Plaintiff's plea of the statute of limitations, the Plaintiff's find the Defendant's Memorandum to be less than meritorious. The Plaintiffs reaffirm the content~ of counsel's letter to the Court dated September 27, 1978, and briefly comment additionally as follows:
This Court's Order of November 22, 1976, in Case No. 10108-L made a finding on Page Two of the Order as follows:
The Court finds the beginning date·of the running of the statute of limitations to be August 4, 1972 as to.paragraph 4(c) as the plaintiffs partially examined the land prior thereto and had a right to repduciate the contract any ttme up to that date, and while they partially examined the bond they had an opportunity to fully examine it, which examination would have revealed the sand and gravel mining of the major portion of the land, they failed to do so. As to paragraph 4(b) of the contract and Count II of the Amended Motion for Judgment alleging fraud, the Court finds that the statute of limitations commences to run as of October 3, 1972, the closing date of the purchase under the contract.
The counterclaim of the Defendants as filed herein restates exactly the same factual circumstances as were stated in the Plaintiff's Amended Motion for Judgment ruled upon by this Court in November of 1976.
- Based upon the Court's previous ruling on exactly the same. fact~s Goodstein and Rubin cannot now place· a contra~t conception on their c se of action and reasonably ask this Court to apply a different trigger mechanism for the ruling of the statute of limitations.
This Court is fully familiar with the case of Oleyar ~Kerr, Trustee, 217 Va. 88, this case having been previously discussed with the Court by both the Plaintiffs and Defendants in argument on Case No. 10108-L. It is clear that our Supreme Court applies a three-year period of limitations in claims by the client against the attorney, the Court's theory being that but for the oral contract of employment there would exist no duty for the lawyer to perform any obligations on behalf of the client.
Hirschler and Fleischer filed suit against Goodstein and Rubin in August of 1977, some four years after this Court determined the statute of limitations began to run with respect to the cla~s as asserted by Goodstein and Rubin both in Case 10108-L and in this case as to their alleged damages for failure of the law firm to properly see to the conditions of the contract, to-wit: paragraphs 4(b) and 4(c).
40
The Honorable William E. Spain -3- December 4, 1978
The Defendants conclude their memorandum by asserting that the case of McCormick v. Romans and Gunn, 214 Va. 144 (1973) is on all fours with this case. With this proposition, the Plaintiffs disagree. Our Supreme Court applied a termination of employment rule because in · McCormick the facts were such that Romans, as attorney for Mrs. McCormick was handling the sale by Mrs. McCo~ick of a series~of lots in a subdivision. Certainly, in McCormick there was an undertaking by the attorney which required a continuation of services over a period of time necessary to dispose of numerous parcels of ground. Such i~ not the case here. The contract of employment between Hirschler and Fleischer and Goodstein and Rubin was a simple one transaction contractual undertaking whereby Hirschler and Fleischer participated in the drafting of a contract of purchase, the examination of title and the settling of that purchase by Goodstein and Rubin. As to the purchase by Goodstein and Rubin of the land nothing in the contractual relationship between the parties required any further service with respect to the undertakings of the attorneys beyond the closing date for that particular purchase.
For the reasons stated, the Plaintiffs respectfully pray that their plea in bar and the plea of the statute of limitations be sustained.
William s. Smithers, Jr,
WSS,Jr:yzw
cc: John C. Lowe, Esquire
41
•:
il V I R G I N I A: I. ,, j;
r j;
IN THE CIRCUIT COURT OF THE CITY OF RICHMOND, DIVISION II, the day of 19
li 1: EVERETTE G. ALLEN, JR. , e t al, !1 Plaintiffs II
r li ti :i i I
I
against
JOSEPHS. GOODSTEIN, et al., Defendants
ORDER
Case No. A-159-L
The Court, having fully heard oral argument on the plaintiff's
i plea of the statute of limitations and special plea in bar to the I
I . i
' I II I
j ,f
I I I i
defendant's counterclaim, and having considered the memoranda of law
filed herein by the plaintiff and the defendant, doth sustain the
plaintiff's plea of the statute .of limitations and doth sustain t~e
plaintiff's special plea in bar to the defendant's counterclaim, said
counterclaim now being hereby dismissed, to all of which the defendants,
by counsel, object and except.
It is further ORDERED that a copy of this Order be mailed to
WilliamS. Smithers, Jr., 5911 West Broad Street, Richmond, Virginia 23230
and to John C. Lowe, 409 Park Street, Charlottesville, Virgi~ia 22901.
ENTER: I I J..1-/71)1
ll ~~~~ l SeeL: .
1 # f_. n I ~~"!""~-~~:-r-4~~ ,,/.)~·-'_'~-~;::;~~....._ ___ , p.q. 1 William S. Smithers, Jr ~
Seen and Objected to:
~J~o~hn-C~.~L~o-w_e ___________________ __ , p.d.
VIRGINIA
IN THE CIRCUIT COURT FOR THE CITY ~RICHMOND, DIVISION II
EVERETTE G. ALLEN, JR., et al.,
Plaintiff
v.
JOSEPHS. GOODSTEIN, !! al.,
Defendants
TO: Mrs. Iva R. Purdy Clerk Circuit Court for the City of Richmond, Division II
lOth and HUll Streets Richmond, Virginia
CASE NO. A-159-L
Kindly take notice that the defendants appeal from
the final judgment order entered in this case dismissing their
counter-claim, entered by the court on January~~,l979 • ...
Because the order of the court was made based solely
on court documents, without the taking of evidence, no statement
of facts will be submitted, nor will any transcript be filed
with the court.
c. Lowe c sel for Defendants
owe and Gordon, Ltd. 409 Park Street Charlottesville, Virginia 22901
JOSEPH S. GOODSTEIN SHELDON RUBEN
Defendants