Fitz v. White

In this case, plaintiff, a state prisoner, has instituted this suit by Motion for Judgment for money damages, alleging that his court-appointed attorney, named as a defendant in this action, failed to note an appeal to a judgment order of this court revoking a suspended sentence.

The case was before the court on or about October 9,2002 on defendant’s Motion for Summary Judgment. Plaintiff appeared in person pro se. At that time defendant argued that plaintiff, by failing to adequately respond to Requests for Admissions, has conceded that he has no evidence to show whether any appeal would have been successful had it been timely pursued. Without such evidence, plaintiff’s case cannot be proved. The court agrees.

A plaintiff situated as this plaintiff must plead and prove that there was an attorney-client relationship which gave rise to a duty breached by the attorney and that “the neglect or breach of duty was the proximate cause of [the] claimed damages.” Hendrix v. Daugherty, 249 Va. 540, 544, 457 S.E.2d 71 (1995), citing Allied Production’s District, 217 Va. 763, 764-65, 232 S.E.2d 774 (1977). For this reason and for those mentioned in defendant’s Memorandum in Support of Motion for Summary Judgment, the motion for summary judgment is granted and this action shall be dismissed.