Present: Carrico, C.J., Compton, Lacy, Hassell, Keenan, and 

Koontz, JJ., and Whiting, Senior Justice 

EDWARD H. RIPPER, ET AL. 

OPINION BY JUSTICE A. CHRISTIAN COMPTON 

v. Record No. 961353 February 28, 1997 

EDWARD H. BAIN, JR. 

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY 

Dixon L. Foster, Judge Designate 

 The appellate issue in this negligence action alleging 

attorney malpractice is whether the trial court erred in ruling 

that the clients failed to establish a prima facie case. 

 Appellants Edward H. Ripper and Phyllis O. Ripper filed this 

action against appellee Edward H. Bain, Jr., seeking recovery in 

damages based upon Bain's alleged negligence in furnishing legal 

advice in connection with a real estate transaction. Following 

presentation of the plaintiffs' evidence in a trial by jury, the 

court below granted defendant's motion to strike the evidence and 

entered summary judgment for the defendant. The court ruled that 

plaintiffs had failed to establish "there was negligence on the 

part of the defendant that caused any damage" to the plaintiffs. 

 They appeal. 

 Because the trial court struck the plaintiffs' evidence, the 

sufficiency of that evidence to sustain a recovery is challenged. 

 Therefore, we shall consider the evidence, and all reasonable 

inferences drawn from it, in the light most favorable to the 

plaintiffs. Page v. Arnold, 227 Va. 74, 76, 314 S.E.2d 57, 58 

(1984). 

 On March 29, 1989, plaintiffs executed a contract agreeing 
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to purchase 761 acres of land in Albemarle County. Known as 

Bright Berry Farm, the tract is bounded on the north and 

northwest by the Shenandoah National Park, on the west by Doyles 

River, on the east by a high ridge line, and on the south by 

State Route 810. There is a dwelling and approximately 230 acres 

of gently rolling bottomland in the southern portion along the 

river; the remainder is "very mountainous and heavily timbered" 

with an increase in elevation of about 1600 feet from the 

southern portion up to the Park's border. 

 State Route 629 meanders generally north and south through 

the property for "approximately a mile and eight tenths." It 

runs from Route 810, past the dwelling, and up to the Park 

boundary. 

 Route 629 has two distinct segments, approximately equal in 

length. The lower portion, running north from Route 810, is 

state-maintained and surfaced with crushed stone. At the point 

where state maintenance ends, the road "very dramatically changes 

character." From that point, the upper portion "is a really bad 

mountain road with big rocks in it." The only vehicles that can 

safely use the upper portion must be equipped with four-wheel 

drive. 

 During negotiations with the sellers, the plaintiffs, having 

inspected the land, decided they "didn't want this property with 

a road that the public had the right to use." Thus, the contract 

included provisions that would allow the plaintiffs "to determine 
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rights and responsibilities with respect to a road running 

through the property." The contract contained an option allowing 

the plaintiffs 45 days to conduct "a feasibility study." The 

contract also provided that the plaintiffs would not be bound if, 

during the study, it was determined "that the property is subject 

to restrictions, rights, or easements which are unacceptable" to 

the plaintiffs. 

 On April 4, 1989, six days after the plaintiffs executed the 

contract, Mr. Ripper telephoned defendant Bain, a Charlottesville 

attorney. Ripper, a certified public accountant, resided in 

Arlington. Ripper called Bain because of Bain's reputation as an 

attorney experienced in real property matters and because he was 

serving on the Board of Supervisors of Albemarle County. 

 During the telephone conversation, Ripper explained the 

property was under contract with a 45-day option. He advised 

defendant that the plaintiffs' purchase "was contingent" upon 

defendant telling Ripper "that we could gate this road and 

restrict access to all or a portion of this road." Ripper told 

defendant that he "needed" defendant "to research that issue 

along with some other things." Ripper engaged defendant as 

plaintiffs' attorney during the conversation and sought his 

advice concerning the road's status. 

 Two weeks later, on April 18, 1989, defendant telephoned 

Ripper and advised that he "had a legal right" to "gate the road 

at the end of state maintenance and restrict the public from the 
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upper part of the road." A discussion about the abandonment of 

public roads followed. According to Ripper, defendant then "said 

that because I had the legal right to gate the road and restrict 

access to the upper portion of the road, that he didn't see any 

reason why the Board of Supervisors wouldn't vote in favor of a 

petition to abandon the lower part of the road." According to 

Ripper, defendant stated that such Board action was "likely" 

because the lower portion "didn't go anywhere . . . it was as 

though the road ended and from that point on it was my private 

property." 

 When defendant rendered the foregoing advice, the only 

information he had available was a title insurance policy 

commitment and pertinent deed book pages provided by the title 

company. The title insurance binder included an exception for: 

"Rights of the public and others in and to those portions of the 

insured property lying within the bounds of State Route 810, 

State Route 629, and old road, as shown on plat recorded in Deed 

Book 348, page 392." 

 Dated in 1959, the plat shows Route 629 beginning at Route 

810 at the southern end of the property and proceeding north a 

short distance past the house. At this point, the line 

representing the road on the plat stops. From that point, Route 

629 is not shown on the plat. At the northwestern boundary of 

the tract, another road is shown proceeding south out of the Park 

labelled "Brown's Gap Road." According to an expert witness, 
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"Brown's Gap Road was Stonewall Jackson's favorite route between 

the Valley and Charlottesville." In the large area between the 

two end segments, no road is shown. 

 At the time defendant gave the advice, he had not "visited" 

the property, and had done no research on whether any portion of 

Route 629 had lost its public status. At that time, defendant 

"had no way to know whether State Route 629 only went one foot 

onto the Rippers' property, crossed the entire property or did 

anything in between." 

 After rendering advice about the road's status, defendant 

mailed a copy of the title insurance exceptions and the 1959 plat 

to the plaintiffs. Upon receipt, Mr. Ripper "found the 

information to be a little bit confusing relative to the advice" 

defendant had given. Thus, Ripper called defendant to be assured 

that the information in the documents did not "change anything" 

about defendant's advice that plaintiffs could "gate that road 

and restrict access to the upper portion of that road." 

Defendant confirmed his earlier advice. 

 Relying upon defendant's advice, the plaintiffs decided to 

purchase the property in accordance with the sales contract. 

Just prior to the closing of the transaction, plaintiffs met with 

defendant in his Charlottesville office on September 1, 1989. 

Defendant confirmed "one last time" that plaintiffs "had the 

right to erect a gate at the end of state maintenance and 

restrict all or prohibit all the public's use to that upper 
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section of the road." 

 The property was conveyed to the plaintiffs by deed dated 

September 7, 1989. Within weeks, the plaintiffs erected a gate 

at the end of state maintenance closing the upper portion of the 

road. As a result, public "traffic" on the upper portion ceased. 

 In the months following erection of the gate, public traffic on 

the lower portion "virtually decreased to nothing." 

 In October 1989, a local surveyor acting on behalf of the 

plaintiffs filed a petition with the Albemarle County Board of 

Supervisors to have the lower portion of the road abandoned. 

During hearings on the petition, defendant did not participate 

either as a supervisor or as an attorney for the plaintiffs. 

 At a November 8, 1989 hearing, the County Attorney took the 

position that the public might have the right of access to the 

road's upper portion. According to Mr. Ripper, this was the 

first time anyone suggested to him that the upper portion was a 

public road. Defendant then told Ripper to "find another 

lawyer." 

 Upon defendant's recommendation, the plaintiffs retained 

Frederick W. Payne, a Charlottesville attorney, who represented 

them in connection with the petition before the Board. 

Ultimately, the Board denied the petition. 

 The Board then filed an action against the Rippers in the 

United States District Court for the Western District of Virginia 

 seeking removal of the gate. In January 1992, the federal court 
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ruled that the upper portion of the road was public and ordered 

removal. Immediately, the gate was removed. 

 The plaintiffs filed another petition with the Board, asking 

the Board to abandon the public road through the entire property. 

 Even though the plaintiffs offered, among other things, to 

permit pedestrian access to Shenandoah National Park if the Board 

would abandon the road, the Board denied the second petition. As 

a result, the entire road on the property is public. 

 At trial, Payne testified for the plaintiffs as an expert in 

real estate law. He opined that on April 18, when defendant gave 

his advice about the status of the road armed only with the title 

binder and the 1959 plat, it was impossible to know from the plat 

whether Route 629 extended up to and north of the end of state 

maintenance. The expert testified that it was negligent for an 

attorney to render an opinion, based only on the binder and the 

plat, upon plaintiffs' right to exclude the public from the 

road's upper portion. 

 The expert also testified that a prudent attorney should 

first have ascertained whether Route 629 and Brown's Gap Road on 

the plat were the same road. Next, according to the witness, the 

attorney should have determined the "status" of the road "in its 

various parts," that is, whether it was a public road still in 

the state highway system or whether it had been abandoned, in 

whole or in part. The expert said that unless a lawyer went 

"through those steps," advice upon whether or not the public had 
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the right of access to the road's upper portion would "constitute 

a breach of the standard of practice." 

 An attorney is liable to the client for damages caused by 

the attorney's negligence. Code § 54.1-3906; Ortiz v. Barrett, 

222 Va. 118, 126, 278 S.E.2d 833, 837 (1981). See also Code 

§ 26-5. In order to establish a claim of attorney malpractice, a 

client must show that the attorney failed to exercise a 

reasonable degree of care, skill, and dispatch in rendering the 

services for which the attorney was employed. Heywood & Lee 

Constr. Co. v. Sands, Anderson, Marks & Miller, 249 Va. 54, 57, 

453 S.E.2d 270, 272 (1995). Ordinarily, the questions whether an 

attorney has exercised the required degree of care and, if not, 

whether the failure was a proximate cause of the client's loss 

are to be decided by a fact finder, after considering expert 

testimony. Id. 

 In the present case, the trial court granted the motion to 

strike solely upon the grounds that the plaintiffs had failed to 

prove negligence, proximate cause, and damages. This was error. 

 First, we hold that the plaintiffs established, prima facie, 

negligence and proximate cause with regard to defendant's advice 

about the status of the road's upper portion. The plaintiffs 

proved that they sought defendant's professional legal advice 

about the public's right to access various portions of the road 

through the property. Defendant, according to the expert 

testimony, negligently advised plaintiffs they could lawfully 
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exclude the public from the road's upper portion. Relying on 

this advice, the plaintiffs purchased the property, and proved 

they would not have done so without defendant's assurance that 

they could restrict public access to the upper portion. 

 We further conclude, however, that the plaintiffs failed to 

establish defendant committed malpractice in giving advice on the 

status of the road's lower portion. The plaintiffs' expert did 

not give an opinion on that subject. Moreover, the advice that 

the Board of Supervisors "likely" would vote to abandon the lower 

portion, and the statement by defendant that "he didn't see any 

reason" why the Board would not grant an abandonment request, 

amounted to no more than pure speculation about the results of 

the political process. This was not professional legal advice, 

even coming from a sitting member of the government body. 

 Second, we hold the plaintiffs proved, prima facie, that 

they suffered damage as the result of the defendant's negligence. 

 The measure of damages for attorney malpractice in a case like 

this is the difference between the value of the property 

bargained for and the value of the property actually received. 

Duvall, Blackburn, Hale & Downey v. Siddiqui, 243 Va. 494, 498, 

416 S.E.2d 448, 450 (1992). See Carstensen v. Chrisland Corp., 

247 Va. 433, 444, 442 S.E.2d 660, 666-67 (1994); Long & Foster 

Real Estate, Inc. v. Clay, 231 Va. 170, 175-76, 343 S.E.2d 297, 

300-01 (1986). In meeting their burden to establish damages, the 

plaintiffs may show the actual price paid for the property in 
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order to prove the value of the property bargained for. 

Carstensen, 247 Va. at 444, 442 S.E.2d at 666-67. 

 Here, Mr. Ripper testified that the plaintiffs paid 

$1,070,750 for the property, the defendant having stipulated that 

this price was the result of an arm's-length transaction. And, 

the value of the property actually received, that is, with the 

entire road public, was established in two ways. First, Mr. 

Ripper opined that the value of the tract was $300,000 to 

$400,000 less with the public road running across it. Second, 

the plaintiffs' expert appraiser said the fair market value of 

the property on the date of the conveyance "with the public road 

in place all up and down the property" was $720,000. 

 The plaintiffs also presented evidence of damage by proving 

the attorney's fee paid to Payne for representing them during 

some of the abandonment proceedings and during the federal court 

action. The trial court implicitly ruled the plaintiffs were not 

entitled to recover this loss, and plaintiffs contend this was 

error. We will not rule on this damage issue because this case 

will be remanded and the playing field will be different upon 

remand. We have ruled the defendant was not guilty of 

malpractice regarding his advice about abandonment of the road's 

lower portion but that a prima facie case has been established 

about the advice regarding the upper portion. Upon retrial, the 

attorney's fees that the plaintiffs will be entitled to recover 

as damages must relate only to the fees proximately resulting 
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from any acts of negligence regarding defendant's advice as to 

the upper portion. 

 In addition, the trial court excluded certain expert 

testimony on value of the property at the time of sale under 

various conditions: if the lower portion was public and the 

upper portion private, and if the entire road was private. Upon 

retrial, the value under the former condition should be admitted 

while the value under the latter condition should be excluded 

again as speculative. Because of the view we have taken of this 

case, under no circumstances will the plaintiffs be entitled to 

recover damages from defendant on the theory that the entire road 

was private; the plaintiffs were aware that the lower portion was 

public, and the defendant, as we have said, was not guilty of 

malpractice in his advice with regard to that portion. 

 Because the case will be remanded, we should address several 

issues raised on appeal that may arise during a new trial. 

Credibility of witnesses upon precisely what advice defendant 

rendered is an important aspect of this case because defendant 

disputes much of the plaintiffs' evidence on this issue. Indeed, 

in what comes close to a concession that the trial court erred in 

striking the evidence, the defendant states on brief: "This case 

boils down to the word of Edward H. Ripper versus the word of 

Edward H. Bain." 

 The trial court excluded the testimony of two plaintiffs' 

witnesses who, plaintiffs say, would have testified Mr. Ripper 
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told them that defendant had said the plaintiffs could exclude 

the public from the upper portion of the road. These prior 

consistent statements were offered under the so-called "recent 

fabrication" or "motive to falsify" exception to the rule that 

such statements are inadmissible hearsay. See Faison v. Hudson, 

243 Va. 397, 404-05, 417 S.E.2d 305, 309 (1992). 

 But the record is insufficient to enable us to rule on this 

issue; the precise testimony of these witnesses on this subject 

is not presented by any meaningful proffer. We simply do not 

know from this record what these witnesses would have said had 

they been permitted to testify on this issue. 

 Consequently, because the trial court erred in striking the 

plaintiffs' evidence, the judgment below will be reversed and the 

case will be remanded for a new trial. 

Reversed and remanded.