Gebhardt v. O'Rourke

• Decision Date: 13 August 1992
• Docket Number: Docket No. 126279
• Citation: 195 Mich.App. 506,491 N.W.2d 249
• Parties: Barbara Kunkle GEBHARDT, Plaintiff-Appellant, v. Jerome O'ROURKE and O'Rourke, Goldstein, Joseph & Kelly, P.C., Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 249

491 N.W.2d 249

195 Mich.App. 506

Barbara Kunkle GEBHARDT, Plaintiff-Appellant, v. Jerome O'ROURKE and O'Rourke, Goldstein, Joseph & Kelly P.C., Defendants-Appellees.

Docket No. 126279.

Court of Appeals of Michigan.

Submitted Nov. 12, 1991, at Detroit.

Decided Aug. 13, 1992, at 9:35 a.m.

Released for Publication Nov. 19, 1992.

Kelman, Loria, Downing, Schneider & Simpson by Michael L. Pitt, Detroit, for plaintiff-appellant.

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

Before WEAVER, P.J., and WAHLS and TAYLOR, JJ.

WEAVER, Presiding Judge.

In 1986, plaintiff retained defendants to defend her against charges of criminal sexual conduct in the first degree. Following a jury trial, plaintiff was found guilty, then was sentenced on February 8, 1987. Plaintiff discharged defendants and hired a new firm to represent her. On March 24, 1987, plaintiff's new counsel filed a motion for a new trial. One argument was that a new trial should be granted because of the poor representation given by defendants. On June 13, 1988, the trial court granted plaintiff's motion for a new trial. A judgment of acquittal was entered on July 11, 1988, and became final on April 19, 1989. On May 31, 1989, plaintiff discussed the possibility of suing for legal malpractice.

On November 28, 1989, plaintiff filed a complaint against defendants, alleging legal malpractice, misrepresentation by fraud and deceit, and breach of contract by failing to provide plaintiff with skillful, competent representation. Defendants filed a motion for summary disposition based exclusively on the defense of the statute of limitations. Following a hearing, the court ruled that the suit was time-barred. Plaintiff now appeals. We reverse and remand.

An action for legal malpractice must be brought within two years of the date the attorney discontinued serving the plaintiff or within six months after the plaintiff discovers or should have discovered the existence of the claim, whichever is later. M.C.L. Secs. 600.5805(4), 600.5838; M.S.A. Secs. 27A.5805(4), 27A.5838. Tort actions accrue when all the necessary elements of a cause of action have occurred and can be alleged in a proper complaint. Connelly v. Paul Ruddy's Equipment Repair & Service Co., 388 Mich. 146, 200 N.W.2d 70 (1972).

The question before us, one of first impression in this state, is when a claim for legal malpractice arising out of a criminal conviction accrues. Plaintiff argues that her cause of action did not accrue until April 19, 1989, when the judgment of acquittal became final. We agree.

We follow the Alaska Supreme Court, Shaw v. State Dep't of Admin., PDA, 816 P.2d 1358 (Alas.1991), in holding that a convicted criminal defendant must obtain postconviction relief before pursuing an action for legal malpractice against trial counsel. We limit this holding to situations where the defendant in the underlying criminal action has indeed pursued appellate remedies. See Parisi v. Mich. Twps. Ass'n, 123 Mich.App. 512, 332 N.W.2d 587 (1983).

We adopt in support of this holding many of the reasons set forth in Shaw, supra, p. 1361:

The requirement of post-conviction relief promotes judicial economy because many issues litigated in the quest for post-conviction relief will be duplicated later in the legal malpractice action. This is because dispositive post-conviction relief is relevant to the issue of proximate causation. Claudio v. Heller, 119 Misc2d 432, 463 NYS2d 155 (Sup Ct 1983). As Shaw argues it is also relevant to the issue of damages. See Johnson v. Schmidt, 719 SW2d 825, 826 (Mo App 1986). If the defendant was denied post-conviction relief, the legal principle of collateral estoppel would serve to eliminate any frivolous malpractice claim. See Schlumm v. Terrence J O'Hagan, PC, 173 Mich App 345; 433 NW2d 839, 846-47 (1988) (collateral estoppel barred malpractice claim which rested upon the same issues previously decided in plaintiff's ineffective assistance of counsel case); Weiner v Mitchell, Silberberg & Knupp, 114 Cal App 3d 39, 170 Cal Rptr 533, 538 (1980) (valid federal conviction cannot be relitigated in malpractice action and must be accepted as the proximate cause of plaintiff's conviction); Johnson v Schmidt, 719 SW2d at 826; see 2 R Mallen & J Smith, Legal Malpractice Sec. 21.3, at 289 (3d ed 1989); see also D Potel, Criminal Malpractice; Threshold Barriers to Recovery Against Negligent Criminal Counsel, 1981 Duke ...