High court rules against Wintergreen

By Tasha Kates, The Daily Progress – 9/17/2010

Wintergreen Resort still would have lost its appeal of an $8.3 million judgment to an injured skier even if there hadn’t been a trial transcript filing error, the state Supreme Court ruled Thursday.

Wintergreen Partners Inc. had accused the Richmond-based office of McGuireWoods of legal malpractice after the firm didn’t file the trial transcripts from the injury suit and the appeal was dismissed, according to the opinion.

The state Supreme Court opinion, which was written by Justice S. Bernard Goodwyn, upheld the Richmond Circuit Court’s decision to grant McGuireWoods’ request for disposition of the suit without a trial.

James W. Morris III, the Richmond-based attorney for McGuireWoods, said the firm is pleased with the Supreme Court’s decision. Morris said he believes this will be the end of the suit.

Neither Wintergreen nor its attorney immediately returned a call seeking comment for this story.

According to the opinion, Wintergreen would have had to prove that the judgment in Jessica Grigg’s case would have been reversed if McGuireWoods had filed the trial transcript on time.

L. Steven Emmert, a Virginia Beach appellate lawyer who monitors the state high court’s decisions, said he has sympathy for the McGuireWoods lawyers who missed the appeal filing date. Emmert said the firm’s lawyers had checked the court file for the necessary documents but didn’t spot the missing trial transcript.

However, Emmert said he believes it is almost impossible to win a legal malpractice suit against an appellate lawyer. It would be difficult to find witnesses and evidence to prove that a lawyer’s mistake would have reversed the trial court’s decision, Emmert said, and ruling on the appeal wouldn’t be any easier.

“No way is a jury going to speculate on what the Supreme Court has done,” he said. “It becomes a matter where the trial judge has to guess at what the Supreme Court would have done.”

Grigg was injured Jan. 20, 2003, after crashing into a snow groomer as she skied down the Eagles Swoop slope, according to the decision. Two Wintergreen employees, Brett Henyon and Jeffrey T. Eimutus, were moving the groomer up the slope at the time of the accident.

A representative for Grigg filed suit against Wintergreen, Henson and Eimutus, accusing them of negligence. The jury awarded Grigg compensatory damages but found for the resort’s two employees, the opinion said, a decision that Wintergreen found to be “inconsistent.”

In his written analysis of his case on his Web site, www.virginia-appeals.com, Emmert wrote that Wintergreen probably believed the award could be overturned by the state Supreme Court because of case law that says “a verdict for an employee requires a verdict for the employer.”

The opinion said even if the Nelson County resort’s appeal hadn’t been dismissed, the state Supreme Court wouldn’t have been required to reverse Grigg’s judgment because one of the jury instructions “supported the jury’s finding that Wintergreen could be liable for Grigg’s injuries independent of the acts of Henyon or Eimutus.”