Abbott v. DeKalb , 221 Or. App. 339 ( 2008 )

SCHUMAN, J.

Plaintiff brought this legal malpractice action against his trial and appellate counsel after he received post-conviction relief in the criminal case in which they had represented him. He appeals from adverse judgments, both of which were based in part on the trial court’s ruling that his action was time barred because it was filed more than two years after his malpractice claim accrued. We affirm.

In the underlying criminal case, plaintiff was convicted of two counts of sexual abuse in the first degree. He appealed; this court affirmed without opinion. State v. Abbott, 136 Or App 547, 901 P2d 268 (1995). He then petitioned for review in the Oregon Supreme Court, and the petition was denied. State v. Abbott, 322 Or 362 (1995). Finally, he petitioned for certiorari; the United States Supreme Court denied that petition. Abbott v. Oregon, 517 US 1214 (1996).

Plaintiff then filed a petition for post-conviction relief, alleging that his trial counsel had provided constitutionally inadequate representation in failing to assert a statute of limitations defense and that his appellate counsel (the State Office of Public Defense Services) had been constitutionally inadequate for failing to raise that issue on appeal. The post-conviction court agreed that plaintiffs trial counsel had been inadequate and vacated plaintiffs convictions on that basis in a judgment entered on April 12,1999.¹ The state appealed, and plaintiff “cross-appealed,” advancing alternative arguments in support of the post-conviction court’s judgment.² This court, by written opinion, affirmed the post-conviction court’s judgment on December 5, 2001. Abbott v. Baldwin, 178 Or App 289, 36 P3d 516 (2001). The state filed no more petitions; plaintiff, however, petitioned for review in the Oregon Supreme Court — despite the fact that he had prevailed in this court — and, when that petition was denied, Abbott v. Baldwin, 334 Or 75 (2002), he petitioned for certiorari in the United States Supreme Court, which was also denied, Abbott v. Baldwin, 537 US 901 (2002). The appellate judgment issued on May 28, 2002.

Plaintiff subsequently filed this legal malpractice action against his former trial and appellate counsel on May 21, 2004. The trial court granted appellate counsel’s motion for summary judgment and trial counsel’s motion to dismiss, in part on the basis that plaintiffs claim was filed outside the applicable two-year statute of limitations. Although plaintiff raises numerous assignments of error, we reject all but one without discussion. The sole issue on which we write is this: At what point did the statute of limitations for plaintiffs legal malpractice claim against his former criminal defense counsel begin to run?

It is undisputed that a legal malpractice case must be filed within two years of accrual. ORS 12.010; ORS 12.110(1); U.S. Nat’l Bank v. Davies, 274 Or 663, 665-66, 548 P2d 966 (1976). Further, the parties agree that the analysis of legal malpractice claims against criminal defense counsel by their former clients, in particular the question of when such claims accrue, derives from Stevens v. Bispham, 316 Or 221, 227, 851 P2d 556 (1993). In that case, the Supreme Court held:

“With respect to legal malpractice claims, Oregon follows the ‘discovery’ rule for establishing when a claim accrues. * * * The statute of limitations does not begin to run until the client knows or, in the exercise of reasonable care, should know, ‘ “every fact which it would be necessary for the [client] to prove * * * in order to support his right to judgment.” ’ U.S. Nat'l Bank v. Davies, supra, 274 Or at 666-67 (quoting Franks, Limitations of Actions 11 (1959)). Thus, the claim accrues and the statute of limitations begins to run when the client both suffers damage and knows or, in the exercise of reasonable care, should know that ‘ “the substantial damage actually suffered was caused by” ’ the lawyer’s acts or omissions. Id. at 670 (emphasis in original).”

In this case, as in Stevens, there is no question as to the duty defendants owed to plaintiff. The issue is when plaintiff knew or should have known that he was harmed. In legal malpractice cases by former criminal defendants against their criminal defense counsel, harm, again according to Stevens, occurs when the former defendant, now plaintiff, knows or should know that he “has been exonerated of the criminal offense through reversal on direct appeal, through post-conviction relief proceedings, or otherwise.” Id. at 238 (emphasis added). Defendants contend that plaintiff was “exonerated * * * through post-conviction relief,” and harm therefore occurred, when the post-conviction court vacated plaintiffs convictions on April 12, 1999. The statute of limitations, according to defendants, expired on April 12, 2001, and plaintiffs action, filed on May 21, 2004, was not timely. Plaintiff, however, argues that exoneration (and harm) did not occur until the appellate judgment in his post-conviction case issued from the Oregon Supreme Court on May 28, 2002; his action filed on May 21, 2004, he concludes, was therefore timely. The dissent agrees with plaintiff.

We agree that, in almost every case, a person convicted of a crime neither would nor should know of his or her exoneration until a post-conviction court’s judgment issues without appeal or, if the state appeals, until the appellate judgment affirming the post-conviction court’s judgment issues. As long as the state can pursue or is pursuing an appeal of the post-conviction judgment in plaintiffs favor and the possibility of reversal is real, that judgment is merely tentative and no exoneration has occurred. In this odd case, however, the state stopped pursuing its appeal in plaintiffs case after this court affirmed the post-conviction court on December 5, 2001. Thereafter, plaintiff, and not the state, petitioned for Supreme Court review and thereby delayed the issuance of an appellate judgment.

As the court held in Stevens, exoneration can occur not only “through reversal on direct appeal [or] through post-conviction relief proceedings,” but also “otherwise.” Id. at 238. In this case, exoneration occurred “otherwise.” Exoneration occurred, and plaintiffs claim accrued, when the time within which the state could seek further review of the post-conviction court’s judgment elapsed because, at that point, his exoneration became certain. The harm attributable to defendant’s negligence was thus legally cognizable 35 days after this court’s decision affirming the grant of post-conviction relief on December 5, 2001, within which time the state could have filed a petition seeking review in the Supreme Court, but did not do so. See ORAP 9.05(2)(a) (specifying that any party seeking to obtain review of a decision of the Court of Appeals must file a petition for review in the Supreme Court within 35 days from the date of that decision). On that date — January 9, 2002 — the statute of limitations under ORS 12.110(1) began to run. Plaintiffs legal malpractice claim, filed more than two years later on May 21, 2004, was filed too late.

Affirmed.

1 It is not clear from the memorandum opinion of the post-conviction court whether that court found plaintiffs appellate counsel constitutionally inadequate; even if it did, the statute of limitations would bar plaintiffs claim against his appellate counsel for the reasons stated herein.

2 Plaintiffs “cross-appeal” was actually a cross-assignment of error because he did not seek to alter or modify the post-conviction corut’s judgment. Abbott v. Baldwin, 178 Or App 289, 291 n 1, 36 P3d 516 (2001), rev den, 334 Or 75, cert den, 537 US 901 (2002).