Ballinger v. Thompson
| Decision Date | 23 August 2005 |
| Docket Number | No. 04-245.,No. 04-246.,04-245.,04-246. |
| Citation | 2005 WY 101,118 P.3d 429 |
| Parties | Jason Dean BALLINGER, an Individual, Appellant (Plaintiff), v. Marc C. THOMPSON, Esq.; and Webster & Thompson, LLC, Appellees (Defendants). In the Matter of the Estate of Gladys Mildred Ballinger, Deceased: Jason Dean Ballinger, Personal Representative of the Estate of Gladys Mildred Ballinger, Appellant (Plaintiff), v. Marc C. Thompson, Esq.; and Webster & Thompson, LLC, Appellees (Defendants). |
| Court | Wyoming Supreme Court |
Representing Appellant: Eldon E. Silverman of Preeo Silverman Green & Egle, P.C., Denver, Colorado.
Representing Appellee: Marc C. Thompson of Webster & Thompson, LLC, Cody, Wyoming.
Before HILL, C.J., and GOLDEN, KITE, VOIGT, and BURKE, JJ.
[¶ 1] Jason Dean Ballinger appeals the district court's order granting Webster and Thompson, LLC, and Marc C. Thompson's (collectively Thompson) motion to dismiss Ballinger's legal malpractice suit. The district court granted the motion finding Ballinger had failed to comply with the statute of limitations. We affirm.
[¶ 2] Ballinger presents the following issues for review:
1. Was Ballinger under "a legal disability" pursuant to Wyo. Stat. 1-3-107(a)(iii) so that his action was timely brought?
2. Was any statute of limitations defense barred under the theory of equitable estoppel for purposes of overcoming a motion to dismiss?
3. Did the statute of limitations begin to run only after "discovery" of the claim and was that within the two-year period, to overcome a motion to dismiss?
4. Should the continuous representation rule be applied to the unique facts of this case to toll the statute of limitations?
Thompson responds with just one issue, "Was the district court correct in ruling that appellant's claims are barred by the statute of limitations?"
[¶ 3] Ballinger hired Thompson to represent him individually and as the personal representative and sole beneficiary of the estate of Gladys M. Ballinger. Thompson entered his appearance in the probate case on August 7, 1998. Because Ballinger was incarcerated in the Park County Jail during portions of 1998 and 1999, Thompson took on additional responsibilities for the estate. One of these additional responsibilities was a duty to obtain and maintain insurance for a home in Cody owned by the estate in which Ballinger lived. Unfortunately, the insurance was allowed to lapse, and there was a gap in coverage from June 18, 1999, until July 23, 1999. In explaining the lapse, Thompson claimed he never received a renewal notice. However, insurance company records indicated a renewal notice was sent to Thompson's office address.
[¶ 4] On June 24, 1999, a fight started in the driveway of the Cody home. The fight led to the death of seventeen-year-old Scott Tannehill. Ballinger was at the home at the time of the fight and was charged with accessory to second degree murder. Thompson represented Ballinger in the criminal proceeding stemming from this charge. In December 1999, after changing his plea to nolo contendere, Ballinger was sentenced to a term of incarceration of not less than seven years or more than ten years in the Wyoming State Penitentiary. Ballinger remains incarcerated at this time.
[¶ 5] In February of 2000, an attorney representing the estate of Scott Tannehill contacted Thompson indicating his intent to pursue a wrongful death suit. The attorney wrote:
We are aware of [Ballinger's] ownership of the property where the incident took place. As with any property, it is fair for us to assume that there is a property casualty policy applicable to the property. Those policies provide insurance coverage for incidents of this nature. I would ask you, on behalf of the survivors of Scott Tannehill to please cooperate with us and notify the carrier of our intent to proceed with the claim.
When Thompson contacted the insurance company, it was confirmed there was a period of time when there was no coverage on the property and this gap included the day of the Tannehill incident. A series of letters and explanations then followed; the relevant portions can be summarized as follows:
• On February 15, 2000, Thompson sent Ballinger a copy of a letter addressed to the insurance company regarding the insurance lapse.
• On February 25, 2000, Thompson discussed the insurance lapse with Ballinger on the telephone.
• On April 21, 2000, the wrongful death complaint was filed. It asserted one cause of action, negligence.
• On April 21, 2000, Thompson sent Ballinger a copy of letters between Thompson and the insurance company discussing the insurance lapse.
• Between April and September 2000, Thompson continued to tell the attorney for the Tannehill estate that he was investigating the matter.
• On September 8, 2000, Thompson sent Ballinger a copy of a letter addressed to Tannehill's attorney concerning the insurance lapse. In the letter Thompson revealed there was not an insurance policy in effect at the time of the accident and claimed that "[e]ven if there was a policy in effect, it would not have covered the alleged acts under the Complaint." He asserted the policy in effect was only a renter's policy, it had specific exclusions for acts involving assault, and Tannehill had alleged Ballinger committed an intentional act of misconduct. However, the estate of Tannehill had asserted only negligence in its complaint. The Tannehill attorney then subpoenaed the insurance records from the insurance company. After reviewing the documents the attorney was troubled by Thompson's lack of completeness in his initial responses to requests for information concerning insurance on the Cody home. The Tannehill attorney contended that review of the documents established Thompson was well aware of the lapse in coverage that occurred from June 18, 1999, until July 23, 1999, because he was directly involved in procuring the policy and procuring the renewal policy.
• On September 18, 2000, Thompson sent Ballinger proposed discovery responses for the wrongful death action which addressed the insurance issues and included the policy.
• On September 20, 2000, Ballinger signed the discovery responses that indicated there was no insurance at the time of Tannehill's death.
• On December 21, 2000, Thompson discussed the insurance lapse with Ballinger on the telephone. Ballinger stated he did not think it was an issue or conflict. However, Ballinger agreed to consult with another attorney to discuss the insurance lapse.
• In January of 2001, Thompson sent Ballinger a letter from Tannehill's attorney dated December 15, 2000, regarding the insurance lapse issue. That letter contained the following statements:
• On January 29, 2001, Ballinger consulted with an independent attorney regarding the insurance lapse and the wrongful death suit.
[¶ 6] Thompson withdrew as Ballinger's attorney for the wrongful death case on January 5, 2001. Ballinger then hired a different attorney to represent him in the wrongful death suit. Thompson, however, remained the attorney for the estate. Thompson withdrew from that representation for the estate December 12, 2002.
[¶ 7] On March 31, 2003, Ballinger, individually and as personal representative of the estate, filed suit against Thompson. Ballinger claimed that had Thompson not allowed the insurance to lapse, the wrongful death claim would have been paid by insurance, or at least the cost of the defense would have been covered. Thompson filed a motion to dismiss pursuant to W.R.C.P. 12 or in the alternative W.R.C.P. 56 claiming the statute of limitations provided by Wyo. Stat. Ann. § 1-3-107(a) (LexisNexis 2005) had expired. Ballinger responded asserting he was under a "legal disability other than minority," namely, imprisonment, and therefore the statute was extended under § 1-3-107(a)(iii) to one year after the removal of his disability. Ballinger also asserted equitable estoppel applied, the act and damages were not reasonably discoverable until two years prior to filing, and the continuous representation rule should apply to toll the statute.
[¶ 8] The district court granted Thompson's motion to dismiss. The court rejected Ballinger's position that he was under a legal disability because he was incarcerated, "since it would be bad public policy to give protection and grant a benefit to someone convicted of a serious crime." The district court also found equitable estoppel and the continuous representation rule did not extend the statute in these circumstances. Ballinger timely appealed.
[¶ 9] When reviewing W.R.C.P. 12(b)(6) motions to dismiss, we accept the facts stated in the complaint as true and view them in the light most favorable to the plaintiff. Duncan v. Afton, Inc., 991 P.2d 739, 741-42 (Wyo.1999). We will sustain such a dismissal when it is certain from the face of the complaint that the plaintiff cannot assert any fact which would entitle him to relief. Id.; see also Robinson v. Pacificorp, 10 P.3d 1133, 1135-36 (Wyo.2000). However, a Rule 12(b)(6) motion to dismiss is converted to a W.R.C.P. 56 motion for summary judgment if...
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