William Whiting v. Christopher Butch , 671 F. App'x 110 ( 2016 )

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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 and the movant is
entitled to judgment as a matter of law.’” Id. at 568 (quoting
Fed. R. Civ. P. 56(a)). “A dispute is genuine if a reasonable
jury could return a verdict for the nonmoving party.” Id.
(internal quotation marks omitted). 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 . . . the nonmoving party.” Id. at 565 n.1
(internal quotation marks omitted). However, “the nonmoving
party must rely on more than conclusory 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 actions may
sound either in tort or in contract.” Hall v. Nichols, 400
S.E.2d 901, 903 (W. Va. 1990). 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, we affirm the district court’s order. We
dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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