Harold Ford v. Rolf M. Kehne ( 2011 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 37235
HAROLD FORD, ) 2011 Unpublished Opinion No. 380
)
Plaintiff-Appellant, ) Filed: March 8, 2011
)
v. ) Stephen W. Kenyon, Clerk
)
ROLF M. KEHNE, ) THIS IS AN UNPUBLISHED
) OPINION AND SHALL NOT
Defendant-Respondent. ) BE CITED AS AUTHORITY
)
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
County. Hon. Richard D. Greenwood, District Judge.
Order granting motion to dismiss, affirmed.
Harold Ford, Boise, pro se appellant.
William F. Lee, Emmett, for respondent.
______________________________________________
PERRY, Judge Pro Tem
Harold Ford appeals pro se from the district court’s order granting Rolf M. Kehne’s
motion to dismiss. We affirm.
Ford retained Kehne, an Idaho attorney, to represent him in an appeal before the Idaho
Supreme Court in Ford v. Rawlinson, Docket No. 30375 [Dismissed Nov. 10, 2004]. Although
Ford paid Kehne a $10,000 retainer for work on the action, the appeal was dismissed by the
Supreme Court for Kehne’s failure to file an appellant’s brief in November 2004. Ford filed a
complaint with the Idaho State Bar in September 2006, and an amended complaint in February
2007. During the course of the disciplinary action, Kehne admitted that he had not been diligent
in his representation of Ford which resulted in the dismissal of Ford’s appeal. In May 2008,
Kehne was ordered to return to Ford a portion of the paid retainer but not the full $10,000.
Ford thereafter filed the current action in March 2009. In his complaint, Ford alleged that
Kehne had committed professional malpractice in his representation of Ford during the 2004
appeal. Ford claimed that as a result of Kehne’s malpractice, the Supreme Court had dismissed
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his appeal and requested $500,000 in compensatory and punitive damages. In response, Kehne
filed a motion to dismiss Ford’s complaint. In his motion, Kehne asserted that Ford’s complaint
was not filed within the two-year statute of limitation period under Idaho Code Section 5-219(4)
and therefore was time barred. Ford filed an objection to Kehne’s motion contending that the
statute of limitation did not begin to run until his complaint before the bar was completely
resolved in February 2009. He further contended that Idaho Code Section 5-218 was the
applicable statute of limitation and allowed him three years from February 2009 to file his
complaint.
Following oral argument, the district court found that I.C. § 5-219(4) was the applicable
statue of limitation to Ford’s complaint. The district court further found that the cause of action
arose when the Supreme Court dismissed Ford’s appeal in 2004. Finding that the bar
disciplinary proceedings did not provide for a tolling of the statue of limitation, the district court
concluded that Ford’s complaint for malpractice was time barred. The district court granted
Kehne’s motion to dismiss Ford’s complaint but denied Kehne’s request for attorney fees and
sanctions.
Thereafter, Ford filed a motion to reconsider wherein he reasserted his original
arguments. In addition, Ford asserted federal rule and constitutional violations. Following a
hearing on the motion to reconsider, the district court denied Ford’s motion and finding that the
motion had no merit, awarded $500 in sanctions to Kehne’s attorney for defending the motion.
Ford appealed.
On appeal, Ford alleges that the district court abused its discretion by failing to recognize
that federal law tolled the statue of limitation and that the continuing tort doctrine applied to his
case. He also claims that the district court should have taken into account his limited education
and legal skills and erred in awarding attorney fees against him.
Idaho Code Section 5-219 states:
Actions against officers, for penalties, on bonds, and for professional malpractice
or for personal injuries
Within two (2) years:
4. An action to recover damages for professional
malpractice . . . the cause of action shall be deemed to have
accrued as of the time of the occurrence, act or omission
complained of, and the limitation period shall not be extended by
reason of any continuing consequences or damages resulting
therefrom. . . . The term “professional malpractice” as used herein
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refers to wrongful acts or omissions in the performance of
professional services by any person . . . licensed to perform such
services under the law of the state of Idaho.
In his case, Ford does not argue that he was unaware of the dismissal of his appeal due to
Kehne’s failure to file a brief in 2004. In his complaint Ford alleges:
5. The Defendant caused the plaintiff injury and grievous loss when the
defendant failed in his professional duty to timely file the Plaintiff’s Brief on
Appeal, which resulted in the dismissal of Plaintiff’s Appeal and created a
procedural bar to any further review, by the higher court, of Plaintiff’s civil
action.
Ford goes on to acknowledge that he filed a bar complaint against Kehne for his professional
malpractice in September 2006. It is clear from Ford’s own representation of the facts that the
“occurrence, act or omission complained of” happened in 2004 and that Ford was well aware of
Kehne’s malpractice within two years thereafter.
Ford attempts to claim that he did not know he was damaged until the bar proceedings
were completed and he only received a portion of his $10,000 retainer back. However, he
requests $500,000 in damages for Kehne’s failure to file his appellate brief. Therefore, it is clear
from the record that in 2004 Ford was also aware that Kehne’s omission had caused Ford some
actual damage. See City of McCall v. Buxton, 146 Idaho 656, 201 P.3d 629 (2009); Chicoine v.
Bignall, 122 Idaho 482, 835 P.2d 1293 (1992). The date of the Supreme Court’s dismissal of
Ford’s appeal in 2004 established objectively ascertainable damages for purposes of
commencing the two-year statute of limitation within which to bring this action.
As to Ford’s remaining arguments, we find them to be without merit. Ford has not shown
that any federal rule or legal theory such as the continuing tort doctrine apply to his case. He has
also failed to show that any other statute of limitation is controlling in his case. Finally, although
he requests that his limited education and legal skills be taken into account, it is well established
that pro se litigants are held to the same standards as an attorney. Golay v. Loomis, 118 Idaho
387, 392, 797 P.2d 95, 100 (1990). Therefore, we conclude Ford has failed to show error in the
district court’s dismissal of his malpractice claim against Kehne.
Ford also lists as an issue on appeal a challenge to the district court’s award of $500 in
sanctions against him for his pursuit of a motion to reconsider. Ford fails to provide any
argument or authority in support of this issue in his brief. This Court will not address an issue
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where there has been no argument or authority in support thereof. State v. Zichko, 129 Idaho
259, 263, 923 P.2d 966, 970 (1996).
Finally, Kehne requests an award of attorney fees on appeal. An award of attorney fees
on appeal is proper when the appeal has been brought or pursued frivolously, unreasonably and
with foundation. Rendon v. Paskett, 126 Idaho 944, 945, 894 P.2d 775, 776 (Ct. App. 1995).
We decline to award attorney fees to respondent Kehne.
The order of the district court granting Kehne’s motion to dismiss is affirmed. Costs but
not attorney fees are awarded to respondent.
Chief Judge GRATTON and Judge MELANSON CONCUR.
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