Finch v. Backes, 910418

• Decision Date: 05 November 1992
• Docket Number: No. 910418,910418
• Citation: 491 N.W.2d 705
• Parties: Frederick E. FINCH, Plaintiff and Appellant, v. Norman J. BACKES, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 705

491 N.W.2d 705

Frederick E. FINCH, Plaintiff and Appellant, v. Norman J. BACKES, Defendant and Appellee.

Civ. No. 910418.

Supreme Court of North Dakota.

Nov. 5, 1992.

Pearson, Christensen, Larivee & Fischer, Grand Forks, for plaintiff and appellant; argued by Jon Jensen.

Haugland, Halbach & Halbach, Devils Lake, for defendant and appellee; argued by Peter K. Halbach.

LEVINE, Justice.

Frederick E. Finch appeals from a district court ¹ summary judgment dismissing his legal malpractice action against Norman J. Backes on the ground that the statute of limitations had run. We reverse and remand.

Finch was injured on December 7, 1971, when his vehicle was involved in a collision with a vehicle owned by Kiefer Chevrolet Company, a Minnesota corporation, and operated by Betty Ann Gillette, a Minnesota resident. In 1973, Finch engaged Backes to bring a damage action for injuries received in the accident. In 1978, Backes informed Finch that the statute of limitations had run, barring the contemplated lawsuit, and suggested that Finch consult another attorney.

Finch sued Backes on September 17, 1980, alleging negligence in permitting the statute of limitations to run, barring Finch's claim against Kiefer Chevrolet Company and Gillette. Finch filed an amended complaint dated July 2, 1981. The amended complaint added a second count for injury due to Backes' delay in bringing suit, alleging in part:

"If the Court finds that the Plaintiff's cause of action in the State of North Dakota has not been barred by the Statute of Limitations, the Plaintiff has still suffered grievous mental harm and anguish as a result of the Defendant's negligence in not promptly and competently carrying forward a legal matter entrusted to him."

Backes moved for summary judgment, asserting that the statute of limitations for suit against Gillette and Kiefer Chevrolet Company had not run and that damages for emotional distress could not be recovered "absent some specific act on the part of the attorney amounting to conduct so outrageous as to be shocking." Finch responded to the motion by requesting the court to "dismiss the [action] without prejudice and to toll the running of any statute of limitation in this action until the original action involving the Plaintiff and tort feasors Betty Ann Gillette and Kiefer Chevrolet can be commenced and fully litigated." On June 9, 1982, the district court ² dismissed Finch's action against Backes without prejudice, ruling that "Plaintiff's action against the Defendant is premature and any action the Plaintiff may have has not yet accrued." ³

Finch sued Gillette and Kiefer Chevrolet in 1982. The district court ⁴ issued its findings of fact, conclusions of law and order for judgment in favor of Finch for $24,653.81 on November 3, 1987. Judgment was entered on December 3, 1987. On appeal, this court summarily affirmed the judgment under Rule 35.1(a)(2), NDRAppP, on July 19, 1988. We issued our mandate on August 12, 1988.

Finch sued Backes again by serving a summons on November 3, 1989. The complaint, dated April 11, 1991, alleged:

"XI.

"The negligence of the Defendant has caused serious psychological and emotional problems for the Plaintiff. Because of the length of time involved and the failure of the Defendant to promptly dispose of the case by trial or some other method of settlement, the Plaintiff became obsessed with the litigation to the extent that it has affected his ability to function in society. The psychological problems became so severe that a current diagnosis indicates that the Plaintiff suffers psychological problems affecting physical illness, and chronic pain syndrome. Further, such psychological problems further complicated the physical injuries that the Plaintiff suffered from the accident.

* * * * * *

"XIV.

"The Defendant has failed to exercise the degree of care commonly possessed and exercised by other reasonable, careful and prudent lawyers in North Dakota. The Defendant has violated the Code of Professional Responsibility by neglecting the Plaintiff's case after accepting it and by not promptly disposing of the case by trial or otherwise. The Defendant has failed to act competently by neglecting a legal matter entrusted to him and has failed to represent a client zealously by not carrying out the contract of employment entered into with a client for professional services.

"XV.

"The severe and outrageous actions of the Defendant are the proximate cause of the Plaintiff's chronic pain syndrome (severe compensation neurosis)."

By motion of May 6, 1991, Backes moved for dismissal pursuant to Rule 12, N.D.R.Civ.P., "on the grounds that plaintiff fails to state a claim upon which relief can be granted." The brief in support of the motion asserted that Finch's claim against Backes was barred by Sec. 28-01-18(3), N.D.C.C., the statute of limitations applicable to actions for legal malpractice. Backes argued that "Plaintiff's present action against defendant was barred after September 1980, through the running of the statute." In his brief in opposition to Backes' motion to dismiss, Finch argued in part:

"It is the position of the Plaintiff that the cause of action against the Defendant did not arise until the judgment Finch v. Gillette and Kiefer Chevrolet was filed on December 3, 1987. Therefore, this action is not barred by the statute of limitations as the Summons was served on November 3, 1989."

On October 22, 1991, the district court issued a memorandum decision granting Backes' motion to dismiss, ruling that the statute of limitations had run:

"[T]he statute was 'tolled' until the ending of the underlying action of Finch v. Betty Ann Gillette and Kiefer Chevrolet. The ending of the underlying action does not start an additional two years for the Statute of Limitations.

"The statute was 'tolled' only until after the suit was completed, in 1987. Finch then had to renew his suit immediately thereafter, or at least within a reasonable time frame."

Because the trial court considered matters outside the pleadings, Backes' motion under Rule 12(b)(v), N.D.R.Civ.P., was treated as a motion for summary judgment under Rule 56, N.D.R.Civ.P. See Rule 12(b), N.D.R.Civ.P. The trial court issued its order for judgment on October 27, 1991, granting Backes' motion for summary judgment of dismissal. A judgment of dismissal was entered on October 31, 1991.

The dispositive issue on appeal ⁵ is whether the trial court erred in granting summary judgment dismissing the action against Backes on the ground that the statute of limitations had expired because it was tolled only until Finch's action against Gillette and Kiefer Chevrolet "was completed, in 1987."

The trial court's decision to grant summary judgment of dismissal was based upon its determination that the statute of limitations was " 'tolled' only until after the suit [against Gillette and Kiefer Chevrolet] was completed, in 1987." We conclude that the trial court erred in determining that Finch's suit against Gillette and Kiefer Chevrolet ended in 1987.

Section 28-05-10, N.D.C.C., provides:

"A civil action in a district court is deemed to be pending from the time of its commencement until its final determination upon appeal or until the time for appeal has passed, unless the judgment is sooner satisfied."

When an appeal is taken, this court "retains ... jurisdiction until the cause is disposed of and the remittitur filed in the court below." State v. Jager, 91 N.W.2d 337, Syllabus p 2 (N.D.1958).

Here, an order for judgment was issued in Finch's suit against Gillette and Kiefer Chevrolet on November 3, 1987, and judgment was entered on December 3, 1987. Those steps did not complete the suit, however. An appeal was taken to this court and we filed our opinion affirming under Rule 35.1(a)(2), NDRAppP, on July 19, 1988. Our mandate was issued on August 12, 1988. Consequently, Finch's suit against Gillette and Kiefer Chevrolet was not finally determined, or completed, until August 12, 1988, and the trial court erred in basing summary judgment of dismissal on the suit's supposed completion in 1987. Under these circumstances...