
    CIRCUIT COURT OF FAIRFAX COUNTY
    Thompson v. Inger
    May 24, 1995
    Case No. 93-246
   By Judge F. Bruce Bach

This matter comes before the Court on the Defendant’s Motion to Dismiss and Motion for Summary Judgment. The Motions are granted.

Defendant correctly argues that, in this legal malpractice action, the Plaintiff must establish that the Defendant’s untimely appeal of the trial court’s decision would have been successful but for the Defendant’s negligent conduct. The Defendant’s alleged negligent conduct centers around his failed attempt to timely appeal the trial court’s decision refusing Plaintiffs proffered alibi instruction in the underlying criminal matter. See, Plaintiffs Petition for Appeal. However, Plaintiff admits that the trial judge instructed the jury on the presumption of innocence and reasonable doubt. See, Defendant’s Request for Admissions Nos. 1 and 2. “[W]hen the jury is properly instructed on the presumption of innocence and reasonable doubt, a separate instruction on alibi [is] neither necessary nor required.” Crabbe v. Commonwealth, 221 Va. 419, 421 (1980) citing Minor v. Commonwealth, 213 Va. 278, 281 (1972). I find that Plaintiffs appeal would not have been successful on its merits, and thus, Plaintiffs claim fails, as a matter of law, on the issue of causation. The Motion for Summary Judgment is granted as it clearly appears that no genuine material fact issues remain and the Defendant is entitled to judgment as a matter of law.

In addition, on October 21,1994, this Court ordered the Plaintiff to fully respond to the Defendant’s discovery requests. The Plaintiffs responses to the Defendant’s First Set of Interrogatories and First Request for Production of Documents remain inadequate, hi fact, the Plaintiff has still not filed any response to the Defendant’s document requests. Pursuant to Rule 4:12(b), the Court also dismisses this action as the Plaintiff has wholly failed to abide by the Court’s discovery order.  