Fort Myers Seafood Packers, Inc. v. Steptoe and Johnson

• Decision Date: 21 June 1967
• Docket Number: No. 20304.,20304.
• Parties: FORT MYERS SEAFOOD PACKERS, INC., Appellant, v. STEPTOE AND JOHNSON et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

381 F.2d 261 (1967)

FORT MYERS SEAFOOD PACKERS, INC., Appellant, v. STEPTOE AND JOHNSON et al., Appellees.

No. 20304.

United States Court of Appeals District of Columbia Circuit.

Argued April 5, 1967.

Decided June 21, 1967.

Petition for Rehearing Denied September 22, 1967.

Mr. Glenn A. Mitchell, Washington, D. C., for appellant. Mr. Raymond W. Colton, Washington, D. C., also entered an appearance for appellant.

Mr. Frank F. Roberson, Washington, D. C., with whom Mr. Stephen S. Boynton, Washington, D. C., was on the brief, for appellees. Mr. Carl L. Taylor, Washington, D. C., also entered an appearance for appellees.

Before EDGERTON, Senior Circuit Judge, and TAMM and ROBINSON, Circuit Judges.

Petition for Rehearing En Banc Denied September 22, 1967.

EDGERTON, Senior Circuit Judge:

Appellant Fort Myers Seafood Packers, Inc., sued appellees Steptoe et al. for damage due to "carelessness, negligence and improper legal advice given by said defendants * * * to plaintiff." The District Court entered summary judgment for appellees. The court saw "no factual basis for concluding that the relationship of attorney and client * * existed between these parties." We disagree.

At the request of one Mogdeberg, a client of appellees, appellees drew up and, on May 16, 1962, sent to appellant a proposed contract by which appellant would send its boats to fish in Venezuelan waters and would sell the fish to a Venezuelan processor for resale to Mogdeberg. The contract said "Neither the laws of Venezuela nor the provisions of this Contract requires or contemplates any change in the present American registry of the boat(s)." Appellant executed the contract and sent its boats to Venezuelan waters where, on July 25, 1962, they arrived and were impounded because their entry under American registry was illegal.

Appellee Leavitt admitted that in filing and processing an application to the Maritime Administration for approval of the charters for the boats he had acted as "attorney for the applicants, the boat owners." On August 15, 1962, he wrote to appellant "It is too bad that we did not know the Venezuelan requirements. * * * We could have avoided all of the present difficulty by filing the proper applications with the Maritime Administration. Applications for the sale and transfer of the flags of the vessels would have been approved as quickly as were the ones for the charters." If appellant is not obligated to pay appellees for their services, it does not follow that there was no attorney-and-client relation.

We disagree also with the District Court's ruling that appellant's suit, filed July 22, 1965, was barred by the Statute of Limitations. With exceptions not pertinent here, the District of Columbia statute requires actions to be brought within three years "from the time the right to maintain the action accrues." D. C.CODE (1961 ed., Supp. V 1966) § 12-301, 77 STAT. 510. In ordinary negligence actions, this means the time when the plaintiff suffers injury. Thus we said in Hanna v. Fletcher "The action against Gichner plainly is based on negligence, sounds in tort, and did not accrue until injury resulted from the alleged negligence." 97 U.S.App.D.C. 310, 313, 231 F.2d 469, 472, 58 A.L.R.2d 847, cert. denied, Gichner Iron Works, Inc. v. Hanna, 351 U.S. 989, 76 S.Ct. 1051, 100 L.Ed. 1501 (1956). Several state courts have adopted a special rule that time begins to run against a claim for malpractice when the defendant does the act that afterwards results in injury. Other courts have applied the general...