Fitzgerald v. Congleton

• Decision Date: 19 October 1990
• Docket Number: No. 86-558,86-558
• Citation: 155 Vt. 283,583 A.2d 595
• Court: Vermont Supreme Court
• Parties: Judy W. FITZGERALD v. William G. CONGLETON.

Page 595

583 A.2d 595

155 Vt. 283

Judy W. FITZGERALD v. William G. CONGLETON.

No. 86-558.

Supreme Court of Vermont.

Oct. 19, 1990.

Jane Watson, Burlington, for plaintiff-appellant.

Paradis, Coombs & Fitzpatrick, Essex Junction, for defendant-appellee.

Before ALLEN, C.J., PECK, GIBSON and DOOLEY, JJ., and BARNEY, C.J. (Ret.), Specially Assigned.

GIBSON, Justice.

Plaintiff, Judy W. Fitzgerald, appeals from a decision of the trial court that her claim for legal malpractice was barred by 12 V.S.A. § 512(4). We hold that plaintiff's claim is not barred in its entirety, and, accordingly, reverse.

I.

On September 28, 1981, attorney William G. Congleton, defendant, was paid a retainer to represent plaintiff and her husband in a juvenile proceeding in which the State alleged that their son was a child in need of care and supervision. The proceeding was held that same date, and on behalf of his clients, defendant admitted certain allegations of the petition at the hearing. Plaintiff asserts that those admissions resulted in the loss of custody of her son. On October 1, 1981, plaintiff and her husband discharged defendant as their attorney. They retained new counsel, who succeeded in having the juvenile proceeding dismissed in March of 1982.

In January of 1984, plaintiff and her husband retained yet another attorney to represent them in various claims arising from the juvenile proceeding. This attorney corresponded with defendant regarding a potential legal malpractice claim against defendant. On September 20, 1984, defendant agreed to toll the statute of limitations for sixty days in order to attempt a resolution of the dispute prior to the filing of a formal complaint. The waiver, however, only addressed claims by plaintiff's husband against defendant; it did not include a waiver of the statute of limitations regarding any claim by plaintiff. ¹ On November 18, 1984, plaintiff and her husband initiated a lawsuit against defendant, alleging legal malpractice. The complaint claimed a "breach of contract, negligence and violation of the Code of Professional Responsibility." Plaintiff and her husband sought damages for "emotional distress, ... personal humiliation and lost custody of their son." They also set out a claim for punitive damages.

Defendant moved to dismiss on the basis that the cause of action was barred by the three-year statute of limitations, 12 V.S.A. § 512(4). ² Plaintiff and her husband argued that the statute had been tolled by defendant's agreement to extend the limitations period by sixty days, and that, in any event, the applicable statute of limitations was not 12 V.S.A. § 512(4), but rather, the six-year statute of limitations, 12 V.S.A. § 511. ³ The trial court initially denied defendant's motion to dismiss on the basis that the statute of limitations had been waived, and declined to decide which statute applied to the facts of the instant case.

Defendant filed a motion for reconsideration, asserting that the waiver of the statute applied only to plaintiff's husband and not to plaintiff. The court granted defendant's motion for reconsideration, elected to treat the motion to dismiss as one for summary judgment, and entered summary judgment against plaintiff, finding that her claim was barred by § 512(4). ⁴ Plaintiff, however, had been given no notice of the motion for reconsideration. Upon being informed of the entry of summary judgment against her, plaintiff immediately objected, and the trial court allowed her additional time in which to respond to defendant's motion. After plaintiff's response, which included her affidavit, several other documents and a brief on the issue, the court reaffirmed its decision to grant summary judgment to defendant, and severed plaintiff's claim from her husband's claim so that an appeal of the order could be taken to this Court.

Plaintiff raises four issues on appeal: (1) the trial court erred when it failed to apply the six-year statute of limitations, § 511; (2) the court erred in granting summary judgment without notice or hearing on the question; (3) there exist genuine issues of material fact which make the grant of summary judgment improper; and (4) the application of § 512(4) to her case violates plaintiff's rights to an open court and a remedy at law as guaranteed by the Vermont Constitution. We hold that the trial court erred in failing to apply the six-year statute of limitations to those claims that were for other than personal injuries.

II.

While this Court has not previously considered which statute of limitations should apply to attorney malpractice claims, it is not the first time the Court has grappled with the differences between § 512(4) and the more general provisions of § 511. Section 512 enumerates five types of actions covered by the three-year statute--assault and battery, false imprisonment, slander and libel, injury to the person and damage to personal property--whereas § 511 is a catchall statute that applies to civil actions generally, "except as otherwise provided." Because § 511 applies to both tort and contract causes of action, it is not possible to decide which limitations period to apply to a malpractice action solely on the basis of whether the action sounds in tort or contract. See, e.g., Union School Dist. No. 20 v. Lench, 134 Vt. 424, 425, 365 A.2d 508, 509 (1976) (in action against architect for negligent design of roof, Court agreed with parties that "whether the action sounds in tort or contract," the applicable statute of limitations was 12 V.S.A. § 511, the general statute).

Other jurisdictions have taken a variety of approaches to this issue. See generally Koffler, Legal Malpractice Statutes of Limitations: A Critical Analysis of a Burgeoning Crisis, 20 Akron L.Rev. 209, 229-36 (1986) (analyzing various states' approaches to determining the applicable statutes of limitations in attorney malpractice actions). Some states have adopted a statute of limitations specifically limited to actions for attorney malpractice, see, e.g., Cal.Civ.Proc.Code § 340.6 (West 1982), while other states have adopted broad professional malpractice statutes of limitations that includes attorney malpractice actions. See, e.g., Fla.Stat.Ann. § 95.11(4)(a) (West 1982).

In states having no statute governing malpractice actions, as such, the jurisdictions are split as to whether their tort, contract or general statute of limitations should apply. Compare, e.g., Long v. Buckley, 129 Ariz. 141, 143, 629 P.2d 557, 559 (Ct.App.1981) (attorney malpractice actions are governed by tort, not contract, statute of limitations), and Hillhouse v. McDowell, 219 Tenn. 362, 371-72, 410 S.W.2d 162, 166 (1966) (client's action against attorney for failure to prosecute personal injury suit within statute of limitations was not governed by one-year, personal-injury statute of limitations, but rather by six-year statute relating to contracts), with, e.g., Dolce v. Gamberdino, 60 Ill.App.3d 124, 126, 17 Ill.Dec. 274, 276, 376 N.E.2d 273, 275 (1978) (attorney malpractice actions come under the general statute of limitations). In such jurisdictions, most courts permit a plaintiff to elect between the contract and tort limitations periods depending on how the complaint is framed. See Note, Attorney Malpractice, 63 Colum.L.Rev. 1292, 1308-09 (1963). We find these categorizations are not helpful, given our precedent of looking to the nature of the harm suffered rather than the theory alleged by complainant and the fact that our general statute of limitations applies to both tort and contract causes of action.

This Court recently reiterated the principle, long followed in this jurisdiction, that the "nature of the harm done is the determining factor in construing the two limitations provisions [§§ 511 and 512], rather than the [party's] characterization of the action." ⁵ Stevers v. E.T. & H.K. Ide Co., 148 Vt. 12, 13, 527 A.2d 658, 659 (1987). Stevers, an action for damages to personal property (livestock) under § 512(5), relied on Kinney v. Goodyear Tire & Rubber Co., 134 Vt. 571, 367 A.2d 677 (1976), which discussed the concept in more detail and observed that "since at least 1915, the applicability of [12 V.S.A. § 512] has been predicated upon the nature of the harm for which recovery is sought and not upon the nature of the action brought." Id. at 575, 367 A.2d at 680. In Kinney, the plaintiff had received personal injuries caused by the bursting of a new tire that he was mounting, and the issue was whether § 512(4) applied to a products liability action for personal injury damages even though the complaint labeled the action as one for breach of warranty. The Court held that the determination of which limitation period applied did not depend upon whether the action sounded in contract or tort since the nature of the harm--there, injury to the person--was the same under either theory. Id.

The "nature of the harm" was not difficult to determine in Kinney, where the plaintiff had suffered bodily injuries, and the decision clearly showed the governing principle behind the Court's holding: the three-year statute of limitations would apply "[w]here the injury is personal." Id. at 576, 367 A.2d at 680. The term is more difficult to apply to a case like the one now before the Court, where the complaint contains a mixture of allegations that do not fit neatly into one pigeonhole.

III.

In the instant case, plaintiff alleges that, as a result of defendant's "breach of contract, negligence, and a violation of the Code of Professional Responsibility," she suffered emotional distress, personal humiliation, and the loss of custody of her son for a period in excess of five months. She seeks both compensatory and punitive damages. She contends that she "did not get what she bargained/contracted for, that is, effective legal representation." She further maintains that her interests "are largely intangible, not physical or bodily injury and not injury to...