Meritt v. Goldenberg11/4/2005
The plaintiffs, David Wayne Merritt, Sr., individually and in his capacity as the special administrator of the estate of David Wayne Merritt, Jr., and Tiffany Merritt, filed this action against the defendants, Hopkins Goldenberg, P.C., John Hopkins, and Mark Goldenberg, alleging that the defendants committed legal malpractice in obtaining an inadequate settlement in an underlying wrongful-death-and-survival action involving David Jr., who had died in an automobile accident.
On appeal, the defendants argue that the plaintiffs failed to prove their legal malpractice claim and that, therefore, the circuit court improperly denied the defendants' motions for a directed verdict and for a judgment notwithstanding the verdict. Alternatively, the defendants contend that the verdict was against the manifest weight of the evidence and that various errors in the admission of evidence, an erroneous denial of their motion to transfer, jury instruction errors, an improper closing argument, and an improper damages award entitle them to a new trial.
We reverse and remand for a new trial.
FACTS
On May 16, 1998, David Sr. entered into a contingent fee agreement with the defendants to institute a negligence action against Missouri Dry Dock and Repair Company (Missouri Dry Dock) for the wrongful death of his six-year-old son, David Jr., who died on May 14, 1998, as a result of an automobile accident in Alexander County. David Jr.'s mother, JoAnn, and sister, Tiffany, were also involved in the collision. Although JoAnn originally retained the defendants to represent her regarding her personal injury claims, she terminated the attorney-client relationship due to disagreements with David Sr. On May 27, 1998, David Sr. was appointed by the circuit court of Alexander County as a special administrator to prosecute the wrongful-death-and-survival action. The defendants represented David Sr. in this capacity, and on November 18, 1999, the plaintiffs settled the action for $200,000.
On July 3, 2001, the plaintiffs brought this legal malpractice action against the defendants, alleging that the defendants settled the plaintiffs' claim for an inadequate amount. The plaintiffs alleged that the defendants committed malpractice by failing to adequately investigate the claim, by improperly advising David Sr. that $200,000 was a fair and adequate settlement, and by failing to adequately prepare the necessary medical data and testimony to make a proper disposition of the claim. On October 31, 2003, the defendants filed a motion to transfer venue from Madison County to Alexander County, and the circuit court denied the defendants' motion on November 3, 2003.
At the trial on November 4, 5, and 6, 2003, defendant John Hopkins, a partner of the defendant law firm, testified that John Simmons, who was at that time an employee of the defendant law firm, had initiated the plaintiffs' underlying action. Hopkins testified that he took charge of the plaintiffs' case in November 1998. Hopkins testified that the defendants investigated the accident, prepared and filed the 21-page complaint, conducted written and oral discovery, issued trial subpoenas, and prepared jury instructions for trial. Hopkins acknowledged that he did not take statements in the underlying case and that the legal research he completed was stored in his memory, not the file.
Hopkins acknowledged that he wrote an initial settlement demand letter, dated November 24, 1998, to Al Pranaitis, the attorney hired by the insurance company to defend Missouri Dry Dock and its driver, Gerald Robinson, in the underlying action. In the letter, Hopkins stated that the underlying case was worth in excess of $2
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