United States District Court, W.D. Virginia, Roanoke Division
Elizabeth K. Dillon United States District Judge.
before the court is the motion to dismiss of third-party
defendants Compton M. Biddle and the law firm where he is a
partner, Osterhoudt, Prillaman, Natt, Helscher, Yost, Maxwell
& Ferguson, P.L.C. (the Firm). (Dkt. No. 45.) These
defendants seek dismissal of the sole remaining claim in the
amended third-party complaint, a breach of contract
claim. (Am. Third-Party Compl. (Compl.), Dkt. No.
44.) The viability of the claim turns on a single issue:
whether there was a written contract between Franklin R. and
Mary E. Radford-the third-party plaintiffs-and Biddle and the
Law Firm. If there was a written contract, then the claim is
timely brought within Virginia’s five-year statute of
limitations for breaches of written contracts. If there was
no written contract, but only an oral contract for services,
then a three-year limitations period applies and the breach
of contract claim is time-barred. The motion has been fully
briefed and was argued before this court at a March 31, 2016
hearing. As explained below, the court will grant the motion
to dismiss because there was no written contract between the
parties and the claim is barred by the applicable three-year
statute of limitations.
this case was reassigned, United States District Judge
Michael F. Urbanski had issued a memorandum opinion
addressing a prior motion to dismiss by the third-party
defendants. (Dkt. No. 41.) The background of the case is well
presented in that memorandum opinion, as well as in an
earlier opinion issued by Judge Urbanski addressing the
defendants’ motion for a more definite statement (Dkt.
No. 14 at 1-2), so the court will not restate it. Succinctly
summarized, the Radfords sold property in July 2010 to the
Tinaglias, and Fidelity issued a title insurance policy in
connection with that real estate transaction. The deed
purported to convey an easement to the Tinaglias, but
Fidelity claims that the easement was not properly conveyed.
Fidelity thus paid a sum to the Tinaglias, pursuant to its
title insurance policy, and then sued the Radfords in this
action as the Tinaglias’ subrogee.
Radfords filed a third-party complaint against Biddle and the
Firm, who performed legal work related to the July 2010 sale.
In their breach of contract claim, the Radfords contend that
Biddle and the Firm "breached the applicable standard of
professional care" in the performance of legal services.
(Compl. ¶ 35.) The Radfords claim that those breaches
have caused them to incur litigation expenses, such as
counsel fees and court costs, and also caused the loss of
whatever amount they may owe to Fidelity. (Compl.
earlier dismissal opinion, Judge Urbanski dismissed all the
claims asserted in the third-party complaint, except for the
breach of contract claim. As to that claim, he granted the
Radfords leave to amend so that they could allege additional
facts to support their assertion that there was a written
contract between them and Biddle/the Firm. (Mem. Op., Dkt.
No. 41.) In their amended complaint, the Radfords point to a
series of July 2010 e-mails between Frank Radford and Biddle
as evidence of this written contract. (Compl. ¶ 21 &
the Radfords allege that Biddle made a written contract
proposal to them via e-mail, dated July 20, 2010, and
time-stamped at 4:43 p.m., in which Biddle offered to handle
the issue that had arisen with Fidelity regarding the
easement reservation. (Compl. ¶ 21.)
entirety, the 4:43 p.m. e-mail from Biddle to Frank Radford
The reason the title examiner did not include the easement
reservation was because it was recorded when Radford &
Company no longer owned the property.
We might be able to argue the title company should insure it
anyway. If that does not work, then in order to convey that
easement, we would likely need to get the HOA to sign off on
the Deed containing the right of way.
Time incurred in accomplishing this is outside of the scope
of the standard closing fee and would be charged at my hourly
rate of $200/hr. Let me know if you wish to retain me for
(Compl. Ex. 3A at 1, Dkt. No. 44-4.)
to the Radfords, this e-mail "constituted an offer,
which was accepted by the Radfords by their conduct and by
the performance of the parties, as demonstrated in the
ensuing communications and by Biddle’s actions on
behalf of the Radfords." (Compl. ¶ 21.) The
complaint also points to various other e-mails that show that
Biddle actually went on to perform work for the Radfords on
this issue. The Radfords rely on these additional
communications, as well as their allegations that they were
billed for and paid for "legal services concerning the
conveyance of the Property, including the ...