Allen v. Lawrence

• Decision Date: 11 October 1995
• Docket Number: L-6
• Citation: 903 P.2d 919,137 Or.App. 181
• Parties: Hugh L. ALLEN, Appellant, v. Stephen E. LAWRENCE and Allen T. Murphy, Jr., Respondents. 91-1950-; CA A86367.
• Court: Oregon Court of Appeals

Page 919

903 P.2d 919

137 Or.App. 181

Hugh L. ALLEN, Appellant, v. Stephen E. LAWRENCE and Allen T. Murphy, Jr., Respondents.

91-1950-L-6; CA A86367.

Court of Appeals of Oregon.

Argued and Submitted July 6, 1995.

Decided Oct. 11, 1995.

Sandra Sawyer, Medford, argued the cause and filed the briefs for appellant.

James A. Wallan, Salem, argued the cause and filed the brief for respondents.

Before WARREN, P.J., and EDMONDS and ARMSTRONG, JJ.

WARREN, Presiding Judge.

Plaintiff appeals the dismissal of his complaint against defendants, who are the attorneys who represented plaintiff in an earlier action for medical malpractice. We affirm in part and reverse in part.

In 1982, plaintiff obtained medical treatment for a spine condition. After discovering that the medical treatment had been negligently performed, plaintiff, acting pro se, filed separate actions against the doctor and the hospital for medical malpractice. After the claim against the hospital was dismissed for failure to state a claim, plaintiff retained defendants to represent him in both of his medical malpractice cases.

According to plaintiff's complaint, defendants failed to take any action on either medical malpractice claim, including failing to seek to set aside the judgment for the hospital and, in the case against the doctor, failing to respond to defendants' discovery requests, which resulted in an award of sanctions against plaintiff for discovery violations and ultimate dismissal of the complaint. We affirmed plaintiff's appeal from that dismissal without opinion. Allen v. Campagna, 97 Or.App. 587, 778 P.2d 514 (1989).

Plaintiff then filed this action against defendants on April 16, 1991, alleging various claims arising out of defendants' representation of him in the medical malpractice claims. After his pleadings in this case were dismissed four times, plaintiff filed a fourth amended complaint, which set out claims for breach of contract, fraud and deceit, and negligence. The trial court granted defendants' motion to dismiss the complaint, concluding that the contract allegations failed to state a claim, and the other two claims were barred by the statute of limitations. After further repleading, the court also granted defendants' motion for summary judgment on plaintiff's sixth amended complaint, which alleged claims for intentional and negligent misrepresentation, on the grounds that those claims had not been timely commenced. Plaintiff appeals.

Plaintiff first assigns error to the dismissal of his claim for breach of contract. The trial court concluded that the allegations failed to state a contract claim, because the duties that defendants allegedly breached were duties that arose from the general standard of care for professional conduct, not duties that arose from the contract. Accordingly, it concluded that the complaint failed to state a claim. ¹

Plaintiff argues that the trial court erred, because he alleges duties that were specifically undertaken in his contract with defendants, which were duties beyond the general standard of care for legal representation. Defendants respond that the trial court was correct that all of the alleged duties are duties encompassed in the general standard of care.

The issue is whether the claim denominated breach of contract is, in fact, a contract claim or whether it is a negligence claim in disguise. In Securities-Intermountain v. Sunset Fuel, 289 Or. 243, 259, 611 P.2d 1158 (1980), the Supreme Court explained the difference between contract and negligence claims against persons engaged to provide professional services:

"If the alleged contract merely incorporates by reference or by implication a general standard of skill and care to which the defendant would be bound independent of the contract, and the alleged breach would also be a breach of this noncontractual duty, then ORS 12.110 [relating to claims for negligence] applies. Conversely, the parties may have spelled out the performance expected by the plaintiff and promised by the defendant in terms that commit the defendant to this performance without reference to and irrespective of any general standard. Such a defendant would be liable on the contract whether he was negligent or not, and regardless of facts that might excuse him from tort liability." (Citation omitted.)

Accord Georgetown Realty v. The Home Ins. Co., 313 Or. 97, 106, 831 P.2d 7 (1992).

Accordingly, we review all the allegations of plaintiff's complaint to determine whether the agreement that plaintiff alleges he had with defendants required them to perform specific contractual duties irrespective of the general standard of care. Plaintiff's complaint alleges that he retained defendants to represent him in his claims against the doctor and the hospital. As relevant, he then alleges:

"Defendants promised and agreed with plaintiff that they would file a Motion to Set Aside Judgment in Case No. 87-2762-J-3 sufficiently setting forth plaintiff's claims against the [hospital] and would get the case reinstated; that they would file an Amended Complaint in Case No. 87-1427-J-3 succinctly setting forth legally acceptable facts giving rise to plaintiff's claims against the Doctor; that they would take depositions of the defendants in each of said cases; that they would meet all substantive and procedural requirements and inform and explain to plaintiff the progress and requirements of the litigation, providing plaintiff with regular reports on the progress of the litigation and each expenditure made from funds advanced." (Emphasis supplied.)

Plaintiff then alleges that defendants breached those promises and that, had defendants performed according to their promises, plaintiff would have prevailed in the claims against the doctor and the hospital.

We conclude that the claim alleges a breach of contract. An attorney's agreement to obtain a particular result, i.e., to "get the case reinstated," does not implicate any general standard of care. It is an explicit promise to produce a particular result, apart from an agreement to exercise a general standard of care to prosecute a claim. Because the complaint includes an allegation that defendants breached a contractual promise, which could give rise to liability regardless of the level of care exercised in attempting to produce the result, the complaint states a claim for breach of contract, and the trial court erred in dismissing that claim. ²

Plaintiff next assigns error to the court's dismissal of his claim for legal malpractice for failure to file within the two-year statute of limitations. ORCP 21 A(9); ORS 12.110. ³ The statute of limitations begins to run when the cause of action accrues. ORS 12.010. An action for legal malpractice "accrues when the plaintiff is in fact harmed and knows, or should know, that defendant's conduct has caused the harm." Barnard v. Lannan, 112 Or.App. 625, 628, 829 P.2d 723 (1992); U.S. Nat'l Bank v. Davies, 274 Or. 663, 548 P.2d 966 (1976). This action was commenced on April 16, 1991. Accordingly, we consider whether the cause of action arose before April 17, 1989.

We review the court's ruling on the ORCP 21 A(9) motion to determine whether the pleading on its face shows that the action was not timely filed. ORCP 21 A(9); see Eldridge v. Eastmoreland General Hospital, 88 Or.App. 547, 746 P.2d 735 (1987), aff'd 307 Or. 500, 769 P.2d 775 (1989). Although the trial court considered matters outside the pleadings, i.e., the trial court file in the medical malpractice claim against the doctor, we are confined on appeal to what appears on the face of the pleading. See ORCP 21 A (court may consider matters outside the pleadings only on motions pursuant to ORCP 21 A(1) - (7)); Dotson v. Smith, 307 Or. 132, 764 P.2d 540 (1988); Roberts v. Drew, 105 Or.App. 251, 804 P.2d 503 (1991); O'Gara v. Kaufman, 81 Or.App. 499, 726 P.2d 403 (1986). Cf. Thompson v. Telephone & Data Systems, Inc., 130 Or.App. 302, 881 P.2d 819, on recons 132 Or.App. 103, 888 P.2d 16 (1994). Therefore, we consider only the allegations contained in the negligence claim in the fourth amended complaint, and disregard any facts that the trial court and the parties apparently garnered from the trial court file in the medical malpractice claim against the doctor.

The complaint alleges that plaintiff retained defendants in December 1987 to represent him in the case against the doctor. ⁴ According to plaintiff, defendants failed to file an amended complaint in that case, to take depositions, to request documents, or to respond to requests for discovery. The failure to respond to discovery requests resulted in entry of an award of sanctions against plaintiff for $1,000 on August 18, 1988, and entry of a final judgment of dismissal on September 14, 1988, for the continuing discovery violations. ⁵ Defendants failed to keep plaintiff informed of problems arising in the litigation and to advise plaintiff what was necessary to resolve the problems. Plaintiff alleges that an appeal was taken from the case, and that we affirmed the trial court's judgment without opinion on July 19, 1989. According to the complaint, "[o]n that date plaintiff learned that the defendants had been negligent, and that he had been damaged by their negligence."

Plaintiff argues that the trial court erred in dismissing this claim as not timely filed, because the cause of action did not accrue until he was harmed, and he was not harmed by defendants' negligence until the appeal was resolved in July 1989. He cites U.S. Nat'l Bank for the proposition that, in a legal malpractice case, damage does not occur until the underlying case is finally resolved. He claims that, "[h]ad the appellate court reversed [the trial court's] dismissal, plaintiff would have suffered no harm whatsoever."

Defendants respond that plaintiff was harmed not only by the dismissal of the action but also by the order to pay sanctions of $1,000 for defendants' failure to respond to...