Gebhardt v. O'Rourke, Docket No. 94731

• Court: Supreme Court of Michigan
• Writing for the Court: MALLETT; Elliott; With his claim preserved, he can and should seek a stay in the civil suit until the criminal case is resolved. The trial court handling the civil suit would have discretion regarding whether the stay would continue until judgment in
• Citation: 510 N.W.2d 900,444 Mich. 535
• Parties: Barbara Kunkle GEBHARDT, Plaintiff-Appellee, v. Jerome O'ROURKE and O'Rourke, Goldstein, Joseph and Kelly, P.C., jointly and severally, Defendants-Appellants. Calendar
• Docket Number: Docket No. 94731,No. 8
• Decision Date: 25 January 1994

Page 900

510 N.W.2d 900 444 Mich. 535 Barbara Kunkle GEBHARDT, Plaintiff-Appellee,
v.
Jerome O'ROURKE and O'Rourke, Goldstein, Joseph and Kelly,
P.C., jointly and severally, Defendants-Appellants. Docket No. 94731.
Calendar No. 8. Supreme Court of Michigan. Argued Oct. 6, 1993.
Decided Jan. 25, 1994.

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[444 Mich. 537] Pitt, Dowty & McGehee, P.C., Michael L. Pitt, Peggy Goldberg Pitt, Royal Oak, for plaintiff-appellee.

Smith & Brooker, P.C., Thomas A. Connolly, Flint, for defendants-appellants.

OPINION

MALLETT, Justice.

In this interlocutory appeal, we consider whether plaintiff Barbara Gebhardt's attorney malpractice suit is barred by the statute of limitations. The trial judge granted defendant attorney Jerome O'Rourke's motion for summary disposition on the ground that the plaintiff had not filed her malpractice complaint within two years of the attorney's last day of professional service or within six months after discovering the existence of her claim. The Court of Appeals reversed, holding that the complaint was timely filed because the cause of action did not accrue until the judgment of acquittal in the underlying criminal case was upheld on appeal. We reverse.

I

In 1986, the plaintiff was charged with aiding and abetting her then-fiance, Gary Gebhardt, in the alleged rape of his ten-year-old daughter. The plaintiff retained defendant Jerome O'Rourke and his law firm to defend her.

Genesee Circuit Court Judge Philip C. Elliott presided at the Gebhardts' trial. The jury trial concluded on January 8, 1987, resulting in convictions of both Barbara and Gary Gebhardt. The [444 Mich. 538] plaintiff was sentenced to serve a prison term of thirteen months to five years. ¹

After her conviction, Ms. Gebhardt dismissed Mr. O'Rourke and hired attorney Kenneth M. Mogill to represent her in postconviction proceedings. On January 27, 1987, Mr. Mogill filed an appearance. Both attorneys were present at the February 3, 1987, sentencing hearing. This was Mr. O'Rourke's last appearance on behalf of the plaintiff. On March 27, 1987, Mr. Mogill filed a motion for new trial. The motion alleged that attorney O'Rourke failed to move for psychiatric examination of the complainant, failed to offer expert testimony on the subject of children's claims of sexual abuse, and failed generally to provide a substantial defense.

Judge Elliott issued a written opinion on the motion for new trial in which he set aside the jury's conviction of Ms. Gebhardt, stating that there was insufficient evidence that she was an aider or abetter of the crime, even assuming the child's testimony to be true. On July 11, 1988, he entered a judgment of acquittal. ²

Following the entry of Judge Elliott's opinion, the prosecutor filed a complaint for superintending

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control in the Court of Appeals. After that request was denied, the prosecutor filed an application for leave to appeal to the Michigan Supreme Court. That application was denied on April 19, 1989, thus making the order of acquittal final as of that date.

On November 3, 1989, the plaintiff initiated this malpractice suit against attorney O'Rourke and his law firm.

[444 Mich. 539] Mr. O'Rourke and his firm moved for summary disposition, claiming that plaintiff's action was barred by the applicable statute of limitations, M.C.L. § 600.5805; M.S.A. § 27A.5805 and M.C.L. § 600.5838; M.S.A. § 27A.5838. The statute requires a plaintiff in a legal malpractice action to file suit within two years of the attorney's last day of service, or within six months of when the plaintiff discovered, or should have discovered the claim.

The motion for summary disposition was granted. The trial court reasoned that at the time the plaintiff was convicted and sentenced, she already had fired her attorney, knew he had made errors, and had notice sufficient to start the running of either the two-year statute of limitations or the six-month discovery provision.

The Court of Appeals reversed, holding that the plaintiff's cause of action did not accrue until April 19, 1989, when the judgment of acquittal became final. 195 Mich.App. 506, 508, 491 N.W.2d 249 (1992). When the Court of Appeals opinion was prepared for publication, the reporter of decisions issued an erroneous summary of the facts in the syllabus. The syllabus stated that the plaintiff "successfully moved for a new trial on the basis of, among other things, ineffective assistance of counsel, and was acquitted following retrial." Id. at 506, 491 N.W.2d 249. Actually a judgment of acquittal was entered by the trial judge without retrial. ³ Rather than [444 Mich. 540] basing the acquittal on ineffective assistance of counsel, the judge specifically stated that his judgment was on the basis of insufficiency of evidence.

Defendant O'Rourke and his firm appeal in this Court, seeking reinstatement of the trial court's dismissal of the action and correction of the erroneously prepared syllabus of the Court of Appeals opinion.

II

The applicable statute of limitations is M.C.L. §§ 600.5805(4), 600.5838; M.S.A. §§ 27A.5805(4), 27A.5838. ⁴ [444 Mich. 541] Section 5805

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is the general limitation provision, delineating periods for different types of actions. It states that a plaintiff must bring a malpractice action within two years of when the claim first accrues, or it will be time-barred. Section 5838 is specific to malpractice actions. The first subsection provides that accrual occurs on the last day of professional service, regardless of when the plaintiff discovers or otherwise has knowledge of the claim. The second subsection allows additional time to file by providing that a plaintiff can file within six months of when he discovered, or should have discovered his claim.

The defendants argue that the straightforward language of §§ 5805 and 5838 precisely defines accrual, and the time limitations for filing a malpractice claim. The claim accrued when Mr. O'Rourke last provided professional service for Ms. Gebhardt in the underlying criminal matter. This occurred, at the latest, at the February 3, 1987, sentencing hearing, when the defendant appeared on her behalf. ⁵ The November 3, 1989, filing of this malpractice suit occurred well beyond the two-year limitation period. Further, Ms. Gebhardt should have discovered her malpractice claim no later than March 27, 1987, when her new attorney moved for retrial. Therefore, defendants claim that the plaintiff's action is barred under both the two-year accrual and the six-month discovery provisions. We agree.

The statute is unambiguous. This Court has stated that where the language used is clear, then the Legislature must have intended the meaning it [444 Mich. 542] has plainly expressed, and the statute must be enforced as written. Hiltz v. Phil's Quality Market, 417 Mich. 335, 337 N.W.2d 237 (1983). Unfortunately, courts have been inconsistent in applying the plain language of the statute.

Previous case law has confused the application of the statute by inserting traditional tort concepts of "accrual" into the clear statutory scheme. ⁶ The normal rule in tort law is that a cause of action does not accrue until all elements of the tort exist. Section 5838 expressly rejects this rule by providing that accrual occurs without regard to whether the client's malpractice claim is ripe.

Cases that have analyzed accrual in terms of whether all the elements of a plaintiff's cause of action exist do not explain why a different definition of accrual is being applied than that set forth in § 5838. Perhaps the confusion arises because § 5805 speaks of accrual without limiting its ordinary meaning, whereas § 5838 defines accrual as occurring on the last day of professional service without regard to when the plaintiff discovers the claim. Thus, cases that analyze accrual pursuant to tort law definitions may assume that an ambiguity exists regarding the meaning of "accrual" under the two sections.

Even assuming such ambiguity exists, rules of statutory construction require that separate provisions of a statute, where possible, should be read as being a consistent whole, with effect given to each provision. Malonny v. Mahar, 1 Mich. 26 (1847); R & T Sheet Metal, Inc. v. Hospitality Motor Inns, Inc., 139 Mich.App. 249, 361 N.W.2d 785 (1984). Also, where a statute contains a general provision and a specific provision, the specific provision controls. [444 Mich. 543] In re Landaal, 273 Mich. 248, 262 N.W. 897 (1935); Wayne Co. Prosecutor v. Wayne Circuit Judge, 154 Mich.App. 216, 397 N.W.2d 274 (1986). Here, § 5805 speaks of accrual in general terms, while § 5838 defines accrual in specific terms. Therefore, following rules of construction, the specific definition of accrual as set forth in § 5838 is interpreted to be consistent with § 5805 and is controlling. Accrual of a malpractice action, for purposes of the two-year limitation period, occurs on the last day of professional service.

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Interpretations of the statute that suggest that a plaintiff has two years to file suit after discovering the claim render the six-month discovery provision of § 5838 superfluous. ⁷ The section clearly provides that a client has only six months from the date a claim is discovered in which to sue. The two-year interpretation of accrual is counter to rules of construction requiring effect to be given to each provision.

Furthermore, when ambiguity exists, courts are to give effect to the intent of the Legislature. Ford Motor Co. v. Village of Wayne, 358 Mich. 653, 101 N.W.2d 320 (1960); Kubick v. Child & Family Services of Michigan, 171 Mich.App. 304, 429 N.W.2d 881 (1988). Clearly, the Legislature voiced its intent when it amended § 5838 in 1975, adding the words "regardless of the time the plaintiff discovers or otherwise has knowledge of the claim" to the end of the first part of the section. The Legislature intended that the last day of service be the sole basis for determination of accrual....