William Whiting v. Christopher Butch

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:14-cv-25223. Copies to all parties and the district court. [999977756]. [16-1290]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-1290

WILLIAM V. WHITING,
Plaintiff - Appellant,
v.
CHRISTOPHER S. BUTCH,
Defendant - Appellee.

Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.
Joseph R. Goodwin,
District Judge. (2:14-cv-25223)

Submitted:

November 18, 2016

Decided:

November 30, 2016

Before WILKINSON, NIEMEYER, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Mark E. Hobbs, LAW OFFICE OF MARK HOBBS, Chapmanville, West
Virginia; Herman J. Marino, Danielle K. Kegley, HERMAN J.
MARINO, LTD., P.C., Chicago, Illinois, for Appellant.
Melissa
Foster Bird, Megan Basham Davis, NELSON MULLINS RILEY &
SCARBOROUGH LLP, Huntington, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
William

V.

Whiting

appeals

the

district

court’s

order

granting summary judgment to his former attorney, Christopher S.
Butch,

on

his

legal

malpractice

claim.

On

appeal,

Whiting

contends that the district court erred in construing his claim
as

arising

under

tort,

and

thus

concluding

the

claim

failed

because he failed to provide expert testimony to support his
claim.

We affirm the district court’s order.

We “review[] de novo [a] district court’s order granting
summary judgment.”

Jacobs v. N.C. Admin. Office of the Courts,

780 F.3d 562, 565 n.1 (4th Cir. 2015).

“A district court ‘shall

grant summary judgment if the movant shows that there is no
genuine

dispute

as

to

any

material

fact

entitled to judgment as a matter of law.’”
Fed. R. Civ. P. 56(a)).
jury

could

return

a

and

the

movant

is

Id. at 568 (quoting

“A dispute is genuine if a reasonable

verdict

for

the

(internal quotation marks omitted).

nonmoving

party.”

Id.

In determining whether a

genuine issue of material fact exists, “we view the facts and
all justifiable inferences arising therefrom in the light most
favorable

to

(internal

quotation

party

must

. . .

rely

on

the

nonmoving

marks
more

omitted).
than

party.”

Id.

However,

conclusory

at

“the

565

n.1

nonmoving

allegations,

mere

speculation, the building of one inference upon another, or the

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mere existence of a scintilla of evidence.”

Dash v. Mayweather,

731 F.3d 303, 311 (4th Cir. 2013).
Under

West

Virginia

law,

“legal

malpractice

sound either in tort or in contract.”
S.E.2d 901, 903 (W. Va. 1990).

actions

may

Hall v. Nichols, 400

However, regardless of how the

claim is characterized, the same principles underlie a legal
malpractice action.

See Keister v. Talbott, 391 S.E.2d 895, 898

n.3 (W. Va. 1990).

Thus, Whiting was required to establish that

Butch neglected a reasonable duty and that Butch’s negligence
proximately caused his loss.

Id. at 898-99.

Whiting conceded

that expert testimony was necessary for him to establish that
Butch’s representation failed to meet the appropriate standard
of care and that he did not have such testimony to support his
claim.

See Sheetz, Inc. v. Bowles Rice McDavid Graff & Love,

PLLC, 547 S.E.2d 256, 272 (W. Va. 2001); see also First Nat’l
Bank of Bluefield v. Crawford, 386 S.E.2d 310, 314 n.9 (W. Va.
1989) (“It is the general rule that want of professional skill
can be proved only by expert witnesses.” (internal quotation
marks omitted)).
Accordingly,
dispense

with

we

oral

affirm

the

argument

district

because

3

court’s

the

facts

order.
and

We
legal

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contentions

are

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adequately

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presented

in

the

materials

before

this court and argument would not aid the decisional process.

AFFIRMED

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