Acharya v. Carroll, 88-0981

• Decision Date: 21 September 1989
• Docket Number: No. 88-0981,88-0981
• Citation: 152 Wis.2d 330,448 N.W.2d 275
• Parties: , 60 Fair Empl.Prac.Cas. (BNA) 1515 P.V.N. ACHARYA, Plaintiff-Appellant-Cross Respondent, d v. Donald E. CARROLL and Northwestern National Insurance Company, Defendants-Respondents-Cross Appellants.
• Court: Wisconsin Court of Appeals

Page 275

448 N.W.2d 275

152 Wis.2d 330, 60 Fair Empl.Prac.Cas. (BNA) 1515

P.V.N. ACHARYA, Plaintiff-Appellant-Cross Respondent,^d v. Donald E. CARROLL and Northwestern National Insurance Company, Defendants-Respondents-Cross Appellants.

No. 88-0981.

Court of Appeals of Wisconsin.

Submitted on Briefs May 8, 1989.

Opinion Released Sept. 21, 1989.

Opinion Filed Sept. 21, 1989.

A. Steven Porter, Madison, on the briefs, for plaintiff-appellant-cross respondent.

Bell Metzner, Gierhart & Moore, S.C. by Virginia L. Newcomb, Madison, on the briefs, for defendants-respondents-cross appellants.

Before EICH, C.J., GARTZKE, P.J., and SUNDBY, J.

GARTZKE, Presiding Judge.

P.V.N. Acharya appeals from a summary judgment dismissing his legal malpractice action against attorney Donald Carroll and Carroll's liability insurer, Northwestern National Insurance Company. The trial court dismissed the action on grounds that the three-year statute of limitations in sec. 893.54, Stats., had run. We conclude that the six-year statute of limitations in sec. 893.53 applies. We therefore reverse the judgment dismissing Acharya's action. Carroll and Northwestern cross-appeal from an earlier order denying their motion for summary judgment predicated on Acharya's claimed inability to prevail in the case "within" the case. ¹ We affirm that order and remand for trial.

1. STATUTE OF LIMITATIONS

On December 30, 1986 Acharya filed his malpractice complaint against Carroll and Northwestern in circuit court. He alleges that he retained Carroll as his attorney in October 1978 to handle his civil rights case against the University of Wisconsin before the Wisconsin personnel commission, the federal equal employment opportunity commission, and the federal district court for the western district of Wisconsin. He alleges that, due to Carroll's negligence, he was unsuccessful in each proceeding. He alleges that on June 25, 1982, when the federal district court dismissed all but one of his claims, he first discovered Carroll's negligence. ²

An action against an attorney for malpractice may sound in tort or in contract. Boehm v. Wheeler, 65 Wis.2d 668, 676, 223 N.W.2d 536, 540 (1974). Acharya alleges negligence. His case sounds in tort.

The trial court concluded that the issue is whether Acharya's case falls within sec. 893.52, Stats., or sec. 893.54. The court held that the three-year limitation in sec. 893.54 applies. It did not discuss sec. 893.53. Acharya had brought sec. 893.53 to the trial court's attention. ³

The facts are uncontested, insofar as they pertain to the statute of limitations issue. Which statute applies to the facts is a question of law which we decide independently of the trial court's analysis. Kempfer v. Evers, 133 Wis.2d 415, 417, 395 N.W.2d 812, 813 (Ct.App.1986).

We begin our analysis by noting that "the nature of a legal malpractice action is not determined by the nature of the underlying action or transaction in which the attorney erred." 2 R. Mallen & J. Smith, Legal Malpractice sec. 18.2 at 68 (3d ed. 1989). Thus, the limitations period applicable to Acharya's civil rights action against the university does not determine the statute of limitations applicable to his tort claim against his attorney for malpractice.

Section 893.52, Stats., establishes a six-year limitation on actions to recover for an injury to "personal property." When construing Wisconsin laws, the courts must follow the rules stated in sec. 990.01, Stats., unless construction in accordance with a rule would produce a result inconsistent with the manifest intent of the legislature. Section 990.01(27) provides that "personal property" includes "things in action." According to Gibson v. Gibson, 43 Wis. 23, 32, 35 (1877) (Ryan, C.J., on rehearing), a right of action in tort is not within the meaning of then sec. 1(14), ch. 5, Revised Stats. 1871, now sec. 990.01(27), which defines "personal property" for purposes of construing Wisconsin laws. The Gibson court reached that conclusion even though the statutory definition of personal property in 1877, as now, included "things in action."

Gibson has never been overruled. ⁴ The statutory definition of personal property has never been amended since Gibson, except to add "energy" to the definition. See sec. 6, ch. 261, Laws of 1951. The Gibson construction of the statutory definition must be deemed to be part of the statute which is now sec. 990.01(27), Stats. See Bruner v. Department of Revenue, 57 Wis.2d 70, 75-76, 203 N.W.2d 663, 665-66 (1973) (prior case law construing statute not overruled when statute later amended with no change to phrase construed).

Because the statutory definition of "personal property" does not include rights of action, the six-year limitation in sec. 893.52, Stats., does not apply to a tort action for legal malpractice for injury to a prior right of action. This is not to say that a right of action is not property for purposes outside Wisconsin's statutory definition of "personal property." State civil rights claims, for instance, are property within the meaning of the due process clause of the fourteenth amendment to the United States Constitution. Logan v. Zimmerman Brush Co., 455 U.S. 422, 428-29, 102 S.Ct. 1148, 1153-54, 71 L.Ed.2d 265 (1982). A Wisconsin tort claim held by a debtor in bankruptcy is "property of the estate," within the meaning of 11 U.S.C. sec. 541(a)(1), although the debtor may exempt the claim from the estate under 11 U.S.C. sec. 522(b)(2)(A). Matter of Brandstaetter, 36 B.R. 369 (Bankr.E.D.Wis.1984), aff'd on other grounds, 767 F.2d 324 (7th Cir.1985).

Nor does sec. 893.54(1), Stats., the three-year limitation on actions to recover damages for "injuries to the person," cover a tort action for legal malpractice. The term "injuries to the person" connotes bodily injuries, whether physical or emotional. Subsection (2) of the statute, which makes the three-year statute applicable to a wrongful-death action, reinforces our construction.

Our holding that "injuries to the person," as used in sec. 893.54(1), Stats., does not include a legal malpractice tort claim is consistent with the conclusions of most other jurisdictions. "With few exceptions, ... the courts have concluded that legal malpractice does not cause personal injuries and, therefore, is not governed by a personal injury tort statute of limitations." 2 R. Mallen & J. Smith, supra, sec. 18.6 at 75-76.

Because no other statute of limitations covers a tort action for legal malpractice, the six-year limitation in sec. 893.53, Stats., applies. That statute applies to an action to recover damages for an injury to the "rights of another, not arising on contract, ... except where a different period is expressly prescribed." Id. Section 893.53 is a blanket limitation on tort actions when no other period of limitation is expressly prescribed. See Woodman v. Goodrich, 234 Wis. 565, 566-67, 291 N.W. 768, 769 (1940) (because no other period of limitation on commencement of tort action for criminal conversation was expressly prescribed in statutes, six-year limitation in what is now sec. 893.53 applies). ⁵

Because Acharya commenced this action within six years after he discovered the alleged negligence, he timely commenced this action. We reverse the order of the trial court dismissing his action on the basis of a three-year statute of limitations.

2. PRIMA FACIE RETALIATION CASE

Section 802.08, Stats., governs summary judgment. The methodology for summary judgment has been discussed in many cases, such as Grams v. Boss, 97 Wis.2d 332, 338, 294 N.W.2d 473, 476-77 (1980). We do not repeat it. Our review is de novo and independent of the trial court's decision. Id.

The complaint alleges that Carroll negligently handled Acharya's claims against the university by naming the wrong parties in a Title VII action, 42 U.S.C. secs. 2000e to 2000e-17, failing to properly pursue that claim, and failing to include claims based upon 42 U.S.C. secs. 1981, 1983, and 1985(3), and upon the Wisconsin law of defamation and interference with contract.

A complaint pleading legal malpractice must allege (1) the existence of the relationship of attorney and client, (2) the acts or omissions constituting the alleged negligence, (3) cause, and (4) injury. Lewandowski v. Continental Casualty Co., 88 Wis.2d 271, 277, 276 N.W.2d 284, 287 (1979). The establishment of causation and injury may, as here, involve allegations that the attorney's negligence deprived the plaintiff-client of a successful prosecution or defense of a prior claim. Glamann v. St. Paul Fire & Marine Ins., 144 Wis.2d 865, 870, 424 N.W.2d 924, 926 (1988). Thus, a legal malpractice action often involves litigation of a case "within" the malpractice case. ⁶

Acharya's complaint alleges each element of a malpractice action. It therefore states a claim. The answers of Carroll and Northwestern deny that the attorney-client relation existed, deny negligence, and deny that Acharya suffered an injury. The pleadings establish disputed issues of material fact as to each element of the legal malpractice claim.

Carroll and Northwestern moved for summary judgment on grounds that Acharya could not have proved one of his "cases within the case," a prima facie retaliatory discrimination case against the university. For that reason, Carroll and Northwestern contend that Acharya could not have won his Title VII action in federal court. Because that earlier action was filed in the federal district court for the western district of Wisconsin, we follow the decisions of the United States court of appeals for the seventh circuit with respect to the case within the case. See, Goolsby v. Gagnon, 322 F.Supp. 460, 465 (E.D.Wis.1971) (Wisconsin district court bound by seventh circuit decisions on federal law).

To establish a prima facie case of retaliation in violation of 42 U.S.C. sec. 2000e-3, a plaintiff must show that (1) plaintiff engaged in statutorily protected expression;...