Wright v. Graves

78 Va.App. 777

892 S.E.2d 710

Mark O'Hara WRIGHT v. Andrew C. GRAVES, Esq.

Record No. 1079-22-3

Court of Appeals of Virginia, Lexington.

October 17, 2023

Mark O'Hara Wright, pro se.

Brittany E. Shipley ( Rosalie Pemberton Fessier ; Timberlake, Smith, Thomas & Moses, P.C., on brief), Staunton, for appellee.

Present: Judges Raphael, Lorish and Callins

OPINION BY JUDGE STUART A. RAPHAEL

In this legal-malpractice case, Mark O'Hara Wright seeks compensatory damages from Andrew C. Graves, the defense lawyer who represented him in a 2012 criminal trial in which Wright was convicted on multiple charges, resulting in an 11-and-a-half-year prison term. The most serious conviction was for grand larceny from the person, for which Wright received a ten-year sentence. In June 2021, about three months before Wright's scheduled release, the United States Court of Appeals for the Fourth Circuit concluded that Wright was entitled to federal habeas relief on that conviction due to Graves's ineffective assistance of counsel. Wright v. Clarke , 860 F. App'x 271 (4th Cir. 2021).

Wright sued Graves for legal malpractice in the Circuit Court of Rockingham County, but the trial court sustained Graves's demurrer and dismissed Wright's amended complaint, concluding that Wright failed to plead that he was actually innocent of the offense for which he was convicted. Taking the facts in the light most favorable to Wright, however, we find that Wright successfully pleaded that element. So we reverse and remand this case for further proceedings.

BACKGROUND

In reviewing a trial court's decision sustaining a demurrer, "we accept as true all factual allegations in the complaint ‘made with "sufficient definiteness to enable the court to find the existence of a legal basis for its judgment." ’ " Patterson v. City of Danville , 301 Va. 181, 197, 875 S.E.2d 65 (2022) (quoting Squire v. Va. Hous. Dev. Auth. , 287 Va. 507, 514, 758 S.E.2d 55 (2014) ). But we are not bound by the pleader's conclusions of law that are couched as facts. Id. In evaluating the sufficiency of Wright's allegations, the trial court treated Wright's "amended complaint" to include his original complaint as supplemented by his "motion to amend." Wright's motion to amend incorporated by reference the Fourth Circuit's opinion in Wright v. Clarke . As Graves does not challenge the sources used by the trial court to evaluate Wright's allegations, we rely on the same sources here to set out the operative facts.

In March 2012, Wright, his brother Robert, and Robert's 15-year-old stepson drove to a grocery store in Harrisonburg and shoplifted some sandwiches and two cases of beer. Wright , 860 F. App'x at 274. The store's security guard, Garret Atkins, confronted them in the parking lot in front of the minivan that Wright was driving. Atkins

took one of the cases of beer from Robert's hands. At that point, Robert's stepson stepped out of the minivan—with Wright on the opposite side of the van, out of Atkins's view—and "took a fighting stance" .... Robert then grabbed the beer back from Atkins, and Wright, Robert, and Robert's stepson left in the minivan, taking with them the sandwiches and beer.

Id. The grand jury indicted Wright for robbery by means of violence, premised on "Robert's physical taking of the beer from Atkins in the parking lot." Id. The prosecution amended the indictment on the day of trial to charge Wright with "robbery as a principal in the second degree, meaning that Wright was present for and aided or abetted Robert's taking of the beer." Id. The punishment if Wright were convicted of that offense was "a sentence of five years to life in prison." Id.

At the close of evidence, "the Commonwealth asked that the jury be instructed not only on robbery but also on grand larceny from the person—which, unlike the robbery charge, would not require proof of force or intimidation, and carrie[d] a lower sentence of zero to 20 years’ imprisonment." Id. Although the Commonwealth argued that larceny from the person was a lesser-included offense of robbery, that was plainly wrong under Virginia precedent that was "unequivocal and long-standing." Id. at 278 (citing Ali v. Commonwealth , 280 Va. 665, 669, 701 S.E.2d 64 (2010) ). But Graves did not know that, so he agreed to the Commonwealth's proposed instruction. Id. at 274.

The jury acquitted Wright of robbery but convicted him of grand larceny from the person. Id. at 275. The trial court accepted the jury's recommendation to impose a ten-year prison sentence on that conviction. Id. Wright was also convicted of two other charges: "petit larceny, for originally taking the sandwiches and beer from the store without paying for them; and contributing to the delinquency of a minor, for the involvement of Robert's stepson," id. at 274 n.1, for which Wright was sentenced to a total of one-and-a-half years, id. at 275 n.2. ¹ His scheduled release date from prison was September 7, 2021. Id. at 275.

With about three months left to serve in his sentence, Wright won federal habeas relief from the Fourth Circuit on the grand-larceny-from-the-person conviction because of Graves's ineffective assistance of counsel in failing to object to the erroneous jury instruction. Id. at 282-83. The Court found that Graves's "failure to perform even a minimal investigation of the law cannot be said to reflect a ‘reasonable decision’ or trial strategy." Id. at 279. "Because no ‘reasonable professional judgments’ can justify counsel's lack of investigation into the relevant law, his failure to object to Jury Instruction 10 [was] similarly unreasonable, and his performance deficient under Strickland ." Id. (quoting Strickland v. Washington , 466 U.S. 668, 691, 104 S.Ct. 2052, 2066-67, 80 L.Ed.2d 674 (1984) ).

In November 2021, Wright sued Graves for legal malpractice. Graves demurred on the ground that "[t]he complaint fails to allege facts sufficient to establish actual innocence, which is an element of a legal malpractice case arising from criminal proceedings." ² The trial court sustained the demurrer on that ground, with leave to amend. Wright then filed a "motion to amend" with an accompanying affidavit, which Graves and the trial court treated as the amended complaint. Graves again demurred "for the same reason" as before. The trial court sustained the demurrer, this time with prejudice, finding that Wright's amended complaint "fails to establish Plaintiff's actual innocence."

Wright noted a timely appeal.

ANALYSIS

We review a trial court's decision sustaining a demurrer de novo. Taylor v. Aids-Hilfe Koln e.V. , 301 Va. 352, 357, 878 S.E.2d 385 (2022). Even if "a trial court believes [that] a claim brought by a pro se [plaintiff] may ultimately fail, at the pleading stage the trial court is bound by the same procedures, rules and policies which apply to a party represented by counsel." Ogunde v. Prison Health Servs., Inc. , 274 Va. 55, 65, 645 S.E.2d 520 (2007). We take the facts alleged and the inferences reasonably derived from those facts in the light most favorable to the plaintiff. Id. "We then determine whether those [facts] and any reasonable inferences therefrom satisfy the legal threshold for proving a prima facie case ...." Patterson , 301 Va. at 198, 875 S.E.2d 65. A demurrer tests "the legal sufficiency of facts alleged in pleadings, not the strength of proof." Parker v. Carilion Clinic , 296 Va. 319, 326 n.1, 819 S.E.2d 809 (2018) (quoting Coutlakis v. CSX Transp., Inc. , 293 Va. 212, 216, 796 S.E.2d 556 (2017) ).

A plaintiff alleging legal malpractice in the handling of a "civil matter" must plead facts showing "the existence of an attorney-client relationship which gave rise to a duty, breach of that duty by the defendant attorney, and that the [pecuniary] damages claimed by the plaintiff client [were] proximately caused by the defendant attorney's breach." Desetti v. Chester , 290 Va. 50, 56, 772 S.E.2d 907 (2015) (first alteration in original) (quoting Shevlin Smith v. McLaughlin , 289 Va. 241, 253, 769 S.E.2d 7 (2015) ); see Code § 54.1-3906 ("Every attorney shall be liable to his client for any damage sustained by the client through the neglect of his duty as such attorney."). Graves's demurrer did not challenge that Wright had pleaded those elements.

But "a legal malpractice plaintiff who alleges that malpractice occurred during the course of a criminal matter has additional burdens of pleading." Desetti , 290 Va. at 56, 772 S.E.2d 907. First, a criminal-malpractice ³ plaintiff must plead that he received post-conviction relief. Shevlin Smith , 289 Va. at 251, 769 S.E.2d 7. ⁴ Given that the Fourth Circuit granted federal habeas relief on the conviction in question, Wright , 860 F. App'x at 283, that element is satisfied.

Second, the plaintiff must "plead that the damages to be recovered were proximately caused by the attorney's negligence and were not proximately caused by the legal malpractice plaintiff's own criminal actions." Desetti , 290 Va. at 56-57, 772 S.E.2d 907 (emphasis added). The plaintiff cannot recover if his criminal conduct and the attorney's negligence both caused the damages. When the defendant is actually guilty of the crime charged, the defendant's "actual guilt ... was the proximate cause of the conviction[ ]." Adkins v. Dixon , 253 Va. 275, 282, 482 S.E.2d 797 (1997). In other words, a criminal-malpractice plaintiff must show his actual innocence to the underlying offense to demonstrate that the damages were not caused by the plaintiff, but by his counsel. ⁵ Virginia is among the majority of jurisdictions that impose an actual-innocence requirement. ⁶

The general rule preventing recovery when the injury is due to the defendant's criminal behavior, and not the attorney's negligence, effectuates the ex turpi causa doctrine. That doctrine was famously described by Lord Mansfield in Holman v. Johnson , 1 Cowp. 341, 98 Eng. Rep. 1120 (K.B. 1775):

No Court will lend its aid to a man who

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