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Want v. Frei

United States District Court, E.D. Virginia, Alexandria Division

January 23, 2017

JEROME WANT, Plaintiff,
v.
STEVEN MARK FREI, et al., Defendants.

          MEMORANDUM OPINION

          Leonie M. Brinkema United States District Judge.

         Plaintiff Jerome Want ("plaintiff' or "Want"), pro se, has filed a six-count complaint alleging malpractice[1] and fraud by his former attorney Steven Mark Frei ("Frei"), and Frei's law firm Sickles, Frei & Mims, P.C., (collectively with Frei, "defendants"), arising out of Frei's representation of Want in a personal injury action filed in the Arlington County Circuit Court. Plaintiff seeks damages of at least $2.59 million plus prejudgment interest at a rate of 12%. Compl. ¶¶ 16-23. Defendants have filed a Motion for Summary Judgment ("Motion"), to which plaintiff has filed a response.[2] The Court finds that oral argument would not aid the decisional process. For the reasons that follow, defendants' motion will be granted.

         I. BACKGROUND

         In his complaint, Want alleges that on January 28, 2009, he visited a 7-Eleven in Virginia, where he slipped and fell on snow and ice that had accumulated outside the store's entrance. Def. Memo. Ex. 1 ¶ 3. Want hired two lawyers, Jeffrey Downey ("Downey") and John Wilson ("Wilson"), who filed a complaint against 7-Eleven, Inc., and 7-Eleven Virginia, Inc., on March 5, 2010, in the Arlington County Circuit Court alleging that the store had negligently maintained its property by failing to keep it clear of snow and ice. Def. Memo. Ex. 2. The complaint sought $389, 000 in damages, plus costs and interest. Id. at 4. Two months later, Downey and Wilson withdrew from their representation of Want. Def. Memo. Ex. 1 ¶ 4.

         In July 2010, Want hired defendants to represent him in the slip and fall action, with Frei taking the lead. Def. Memo. Ex. 1 ¶ 5. Want informed Frei that his treating physician, Dr. John K. Starr ("Dr. Starr"), diagnosed him with significant lower back injuries, requiring spinal surgery and long-term therapy. Id. at ¶ 6. Want told both Dr. Starr and Frei that he had no history of back pain before the slip and fall. Id. at ¶¶ 6, 11, 12. According to Want, Dr. Starr was therefore prepared to testify that the accident caused his back problems. Id. at ¶ 6. Based on this representation, Frei successfully moved the court for an increase in the damages to $ 1.25 million. Id. at ¶¶ 7-8.

         Through discovery, 7-Eleven obtained medical records from the Virginia Hospital Center ("VHC") that Want had not disclosed to 7-Eleven, Frei, and Dr. Starr. Def. Memo. Ex. 1 ¶¶ 10-12. These records showed that in January 2008, Want visited the VHC multiple times complaining of lower back pain. [Dkt. 62-3] at 7-12. He rated his pain at that time to be a 3 on a scale of 1-10. Id. at 7. Those records show that Want told VHC doctors that he had back pain "flare ups every 2-3 [years]." Id. at 10. For at least four to five years before that visit, he reported pain on an "almost daily basis." Id. The records showed that his back problems first began almost 30 years earlier, after Want was involved in a car accident. [Dkt. 62-6] at 1.[3]

         On March 23, 2011, 7-Eleven presented those records to Want and Frei during Want's deposition. Def. Memo. Ex. 1 ¶ 10. The next day, Frei passed them along to Dr. Starr to determine whether they would alter his conclusion that the slip and fall was the source of Want's injuries. Id. at ¶ 11. The day after that, Dr. Starr replied that he would no longer be able to offer an opinion on causation. Id. at ¶ 12. By then, the window for identifying expert witnesses in the circuit court action had closed, meaning that it was too late to find a new expert witness to support Want's negligence claim. Id. at ¶ 13. Frei counseled Want that rather than proceeding to trial without an expert witness, it would be in his interest to voluntarily dismiss the action and then refile it if he could locate another expert. Id. at ¶ 14. Although the original statute of limitations had run by March 2011, under Virginia rules Want would have six months to refile the lawsuit. See Va. Code § 8.01-229(E)(3).

         After receiving this advice, Want agreed to voluntarily dismiss the personal injury action. Def. Memo. Ex. 10. Frei filed the dismissal motion only as to 7-Eleven, Inc., inadvertently omitting 7-Eleven Virginia, Inc. Def. Memo. Ex. 1 ¶ 7. Frei eventually caught the mistake, and by orders entered on April 27, 2011, and June 24, 2011, the cases against both defendants were voluntarily dismissed. Id.

         On June 20, 2011, at 1:56 p.m., Want sent Frei an email that read, "Be advised, that I have filed a complaint against you and your firm with the State Bar[.] I will not stop there." Def. Memo. Ex. 13. At 4:30 p.m., Frei replied, "I am sorry to read this but it seems consistent with the way you have elected to treat virtually everyone associated with your case, including doctors. Since you have complained to the Bar Association regarding my conduct I can obviously no longer represent you. Please advise me ASAP where you would like your file sent." Def. Memo. Ex. 14.

         Want did not reply until Monday, August 15, 2011, when he wrote, "Kindly forward my entire file... to Attorney Michael Epstein... so that he can determine if he will take the case. Please do immediately [sic]. I strongly recommend that you do nothing to dissuade him." Def. Memo. Ex. 15. On August 23, 2011, Frei complied by sending Want's file to Epstein. Def. Memo. Ex. 16. In the cover letter, Frei specifically highlighted the dates by which Want would have to refile his personal injury action to avoid the action becoming time barred. Id. As of August 23, Want still had about two months to refile against 7-Eleven, Inc., and nearly four months to refile against 7-Eleven Virginia, Inc. See id.[4]

         There is no evidence in the record of any further interaction between Want and Frei until Want filed this federal civil action on June 2, 2016, which was transferred to this district from the District of Maryland on June 14, 2016. On August 8, 2016, this Court issued a scheduling order setting the Final Pretrial Conference for December 15, 2016. That Order required the parties to "file on or before the final pretrial conference the Rule 26(a)(3) disclosures and a list of the exhibits to be used at trial, a list of the witnesses to be called at trial, and a written stipulation of uncontested facts." [Dkt. 16] (emphasis omitted). The Order explicitly warned the parties, in underlined text, that "[e]xhibits not so disclosed and listed will not be permitted at trial except for impeachment or rebuttal, and no person may testify whose identity, being subject to disclosure or timely requested in discovery, was not disclosed in time to be deposed or to permit the substance of his knowledge and opinions to be ascertained." Id. (emphasis omitted). Despite these warnings, Want failed to appear for the final pretrial conference and to date has not filed either a witness list or exhibit list.

         II. DISCUSSION

         Defendants have moved for summary judgment, arguing that Want's fraud claim is time barred and that his legal malpractice claims fail because he has not produced any admissible evidence to prove that defendants fell short of the duty of care or that any breach of that duty prevented Want from successfully pressing his claim.

         A. Stand ...


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