Glaze v. Larsen, 2 CA-CV 2001-0196.

• Decision Date: 24 September 2002
• Docket Number: No. 2 CA-CV 2001-0196.,2 CA-CV 2001-0196.
• Citation: 203 Ariz. 399,55 P.3d 93
• Parties: James R. GLAZE, Jr., a married man, Plaintiff/Appellant, v. Eric A. LARSEN, Defendant/Appellee.
• Court: Arizona Court of Appeals

55 P.3d 93

203 Ariz. 399

James R. GLAZE, Jr., a married man, Plaintiff/Appellant, v. Eric A. LARSEN, Defendant/Appellee.

No. -0196.

Court of Appeals of Arizona. Division Two, Department A.

September 24, 2002.

As Corrected October 17, 2002.

The Kerley Firm, By James K. Kerley, Sierra Vista, for Plaintiff/Appellant.

Chandler, Tullar, Udall & Redhair, LLP, By D. Burr Udall and Peter Akmajian, Tucson, for Defendant/Appellee.

OPINION

FLOREZ, J.

¶ 1 Appellant James Glaze challenges the trial court's order granting appellee Eric Larsen's motion to dismiss Glaze's complaint for legal malpractice on the ground that the complaint was barred by the statute of limitations. Larsen had represented Glaze in a criminal matter, both at trial and on appeal. Glaze contends that the statute of limitations on his legal malpractice action did not begin to run until the criminal proceeding was dismissed with prejudice. We agree and reverse.

¶ 2 Because this issue involves a question of law, we review the trial court's ruling de novo. See Manterola v. Farmers Ins. Exch., 200 Ariz. 572, 30 P.3d 639 (App.2001)

. Additionally, we bear in mind that the use of the statute of limitations as a defense is not favored. Id.

¶ 3 The material facts are undisputed. Following a jury trial, Glaze, then a Pima County deputy sheriff, was convicted of sexually abusing another deputy sheriff during an off-duty visit to her home. Judge Donfeld suspended the imposition of sentence and placed Glaze on probation for one year. This court affirmed Glaze's conviction and probationary term on appeal. State v. Glaze, No. 2 CA-CR 96-0145 (memorandum decision filed Jan. 14, 1997). Larsen represented Glaze on appeal. Represented by different counsel, Glaze later filed a petition for post-conviction relief pursuant to Rule 32, Ariz. R.Crim. P., 17 A.R.S., in which he alleged Larsen had been ineffective at trial. Judge Donfeld summarily dismissed the petition, denying relief. Although this court granted Glaze's petition for review, we denied relief. State v. Glaze, No. 2 CA-CR 97-0400-PR (memorandum decision filed June 23, 1998). Three months later, however, we granted Glaze's motion for reconsideration, concluding that Glaze had raised a colorable claim of ineffective assistance of counsel because Larsen had failed to request a jury instruction on lack of sexual motivation. We therefore vacated our memorandum decision and remanded the case to Judge Donfeld for an evidentiary hearing.

¶ 4 After the evidentiary hearing, Judge Donfeld granted Glaze a new trial, finding that Larsen had been ineffective in failing to request a jury instruction on lack of sexual motivation. Specifically, Judge Donfeld found that "the failure to request this jury instruction was an oversight on the part of [Larsen]" and "the failure to request the instruction was prejudicial to [Glaze's] case." Before the retrial was held, however, Glaze filed a motion to dismiss the charges with prejudice. Finding that the county attorney's office "ha[d] no intention to refile this matter" and that "this matter was commenced almost four and one-half years ago and finality is appropriate under the circumstances," Judge Donfeld granted Glaze's motion on July 6, 1999.

¶ 5 Glaze filed this lawsuit against Larsen in December 2000. Arguing that the complaint was barred by the two-year limitations period in A.R.S. § 12-542, Larsen moved to dismiss the complaint pursuant to Rule 12(b)(6), Ariz. R. Civ. P., 16 A.R.S., Pt. 1. The trial court concluded that the statute of limitations period had begun, at the very latest, on September 30, 1998, when this court filed its order finding that Glaze had raised a colorable claim for relief based on ineffective assistance of counsel.¹ Because we had filed our order two years before the date Glaze filed his complaint, the trial court dismissed the complaint. This appeal followed.

¶ 6 Glaze contends that the statute of limitations period on his claim did not begin until Judge Donfeld dismissed the criminal case with prejudice because, until that time, his "injury or damage [was] speculative, remote, or uncertain." The requirement in § 12-542 that a tort action "shall be commenced and prosecuted within two years after the cause of action accrues" applies to legal malpractice actions. Kiley v. Jennings, Strouss & Salmon, 187 Ariz. 136, 927 P.2d 796 (App.1996). "A claim for legal malpractice accrues when: (1) the plaintiff knows or reasonably should know of the attorney's negligent conduct; and (2) the plaintiff's damages are ascertainable, and not speculative or contingent." Id. at 139, 927 P.2d at 799. Put another way, "it is only when the litigation is terminated and the client's rights are `fixed' that it can safely be said that the lawyer's misdeeds resulted in injury to the client." Amfac Distrib. Corp. v. Miller, 138 Ariz. 155, 157, 673 P.2d 795, 797 (App.) (Amfac I), aff'd, 138 Ariz. 152, 673 P.2d 792 (1983) (Amfac II).

¶ 7 As both parties note, the questions of when a plaintiff is deemed to know of his or her attorney's negligence and when the plaintiff's damages are regarded as ascertainable in the context of a criminal proceeding are issues of first impression in Arizona. Thus, both parties rely on case law from other jurisdictions to support their positions.

¶ 8 Citing Silvers v. Brodeur, 682 N.E.2d 811 (Ind.Ct.App.1997), and Gebhardt v. O'Rourke, 444 Mich. 535, 510 N.W.2d 900 (1994), Larsen urges us to follow the approach taken by states that allow a cause of action for legal malpractice to accrue prior to the "final resolution of the underlying criminal case." In Silvers, the plaintiff received a thirty-five-year sentence after his attorney advised him to plead guilty to murder and attempted murder. More than two years later, the plaintiff filed a complaint against his attorney with the State Bar of Indiana, alleging that counsel had negligently represented him. Approximately five years later, the plaintiff successfully petitioned for post-conviction relief based on ineffective assistance of counsel during the plea bargaining process. Following a trial, the plaintiff was convicted of criminal recklessness and released from custody because he had already served the maximum sentence. Approximately one year after his trial, the plaintiff sued his attorney for legal malpractice.

¶ 9 Affirming the trial court's grant of summary judgment in favor of the attorney and recognizing its state public policy favoring the use of the statute of limitations as a defense, the Indiana Court of Appeals held that a criminal defendant must commence a legal malpractice action against his or her attorney within two years of discovering the malpractice, even if the criminal proceeding is ongoing. The court noted that delaying the accrual of the malpractice claim until the criminal proceeding has terminated does not further the state's goals of prompt presentation of claims and notice to defendants.

¶ 10 Similarly, the Michigan Supreme Court in Gebhardt held that the plaintiff's cause of action for legal malpractice had accrued before the termination of the criminal case against her. There, a jury had convicted the plaintiff of abetting a rape. After the plaintiff dismissed her attorney, she moved for a new trial on the ground that her attorney had "failed ... to provide a substantial defense." 510 N.W.2d at 901. Finding there was insufficient evidence that plaintiff had an abettor, the trial court entered a judgment of acquittal. More than two years after she filed her motion for a new trial, the plaintiff sued her attorney for legal malpractice. The trial court dismissed that lawsuit as untimely, reasoning that the plaintiff had known about her attorney's malpractice when she terminated his services.

¶ 11 In affirming the trial court's ruling, the Michigan Supreme Court explained that having a claim accrue prior to the termination of the criminal proceeding "affords the opposing party a fair opportunity to defend, relieves the court system from dealing with `stale' claims, and protects potential defendants from protracted fear of litigation." Id. at 905. And, in rejecting the concern that a plaintiff's damages would be uncertain until the termination of the criminal proceeding, that court stated that "harm is established not by the finality of the damages, but by the occurrence of identifiable and appreciable loss." Id. at 904. The supreme court further noted that its approach was consistent with its statute providing that the limitations period for a legal malpractice action is two years from the last date the attorney represented the plaintiff or six months after the plaintiff discovers or should have discovered the malpractice.

¶ 12 Glaze urges us to reject these authorities and follow the approach of courts in states such as Alaska that hold that a cause of action for legal malpractice in the criminal context does not accrue until the criminal proceedings against the plaintiff are final and the plaintiff has been exonerated.² See Shaw v. State, 816 P.2d 1358 (Alaska 1991)

. Even though the plaintiff in Shaw sued his criminal defense attorney for legal malpractice approximately fifteen years after his conviction, the court held that his lawsuit was timely because he had filed it within two years of his exoneration. The Supreme Court of Alaska explained that tolling the limitations period until the criminal proceeding against the plaintiff has terminated and the plaintiff has been exonerated promotes judicial economy because many of the issues raised in the post-conviction proceeding will be raised in the legal malpractice action as well, and the doctrine of collateral estoppel prevents a plaintiff from relitigating frivolous issues. Additionally, the court noted, this approach provides a bright-line rule, recognizes that the merits of a claim on appeal or for post-conviction relief are uncertain until the claim has been decided, and decreases the likelihood that...