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Fidelity National Title Insurance Co. v. Radford

United States District Court, W.D. Virginia, Roanoke Division

June 2, 2016

FIDELITY NATIONAL TITLE INSURANCE COMPANY, Plaintiff,
v.
FRANKLIN R. RADFORD and MARY E. RADFORD, Defendants/Third-Party Plaintiffs,
v.
COMPTON M. BIDDLE and OSTERHOUDT, PRILLAMAN, NATT, HELSCHER, YOST, MAXWELL & FERGUSON, P.L.C., Third-Party Defendants.

          MEMORANDUM OPINION

          Elizabeth K. Dillon United States District Judge.

         Pending 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.[1] (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.

         I. BACKGROUND

         Before 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.

         The 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. ¶¶ 37-38.)

         In his 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 & Exs. 3A-3C.)

         Specifically, 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.)

         In its entirety, the 4:43 p.m. e-mail from Biddle to Frank Radford stated:

         Frank,

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 this work.

(Compl. Ex. 3A at 1, Dkt. No. 44-4.)

         According 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 ...


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