Glaze v. Larsen

Decision Date14 January 2004
Docket NumberNo. CV-02-0375-PR.,CV-02-0375-PR.
Citation207 Ariz. 26,83 P.3d 26
PartiesJames R. GLAZE, Jr., a married man, Plaintiff/Appellant, v. Eric A. LARSEN, Defendant/Appellee.
CourtArizona Supreme Court

The Kerley Firm, P.C. by James K. Kerley, Sierra Vista, Attorney for Appellant.

Chandler, Tullar, Udall & Redhair, LLP by Peter Akmajian, Tucson, Attorney for Appellee.

Engelman Berger, P.C. by William H. Anger, Phoenix, Attorney for Amicus Curiae Arizona Association of Defense Counsel.

OPINION

HURWITZ, Justice.

¶ 1 This case requires us to decide when a cause of action accrues for legal malpractice occurring in the course of criminal litigation. We granted review because the issue is one of first impression in Arizona and is of statewide importance. We have jurisdiction pursuant to Article 6, Section 5(3) of the Arizona Constitution, Arizona Rule of Civil Appellate Procedure 23, and Arizona Revised Statutes ("A.R.S.") § 12-120.24 (2003).

I.

¶ 2 James R. Glaze was convicted in superior court of one count of sexual abuse and was sentenced to a one-year term of probation. Eric A. Larsen represented Glaze in the trial proceedings. Larsen also represented Glaze on his direct appeal, in which the court of appeals affirmed the conviction. State v. Glaze, 2 CA-CR 96-0145 (Ariz.App. Jan. 14, 1997) (mem.decision).

¶ 3 Glaze, no longer represented by Larsen, then filed a petition in the superior court under Arizona Rule of Criminal Procedure 32 for post-conviction relief. The Rule 32 petition alleged that Larsen had provided ineffective assistance of counsel by failing to request a jury instruction regarding "lack of sexual motivation." The superior court dismissed the petition. The court of appeals granted Glaze's petition for review, but initially denied relief. State v. Glaze, 2 CA-CR 97-0400-PR (Ariz.App. June 23, 1998) (mem.decision). On September 30, 1998, however, the court of appeals granted a motion for reconsideration and held that Glaze had stated a "colorable claim of ineffective assistance of counsel." The case was remanded to superior court for an evidentiary hearing.

¶ 4 On remand, the superior court found that Larsen had been ineffective in failing to request the jury instruction and granted Glaze a new trial. Glaze then filed a motion to dismiss the charges with prejudice. The superior court granted the motion to dismiss on July 6, 1999.

¶ 5 On December 14, 2000, Glaze filed suit against Larsen, alleging that Larsen's negligence had caused the criminal conviction. The superior court granted Larsen's motion to dismiss, holding that Glaze's claim was barred by the two-year statute of limitations in A.R.S. § 12-542 (2003), which provides that negligence actions "shall be commenced and prosecuted within two years after the cause of action accrues." The trial court found that the cause of action had accrued on September 30, 1998, the date the court of appeals held that Glaze had a colorable claim for ineffective assistance of counsel.

¶ 6 The court of appeals reversed. Glaze v. Larsen, 203 Ariz. 399, 55 P.3d 93 (App.2003) (Florez, J.). The opinion below relied heavily on Amfac Distribution Corp. v. Miller, 138 Ariz. 155, 673 P.2d 795 (App.) ("Amfac I"), approved as supplemented, 138 Ariz. 152, 673 P.2d 792 (1983) ("Amfac II"), which held that a cause of action for legal malpractice in a civil case did not accrue until the underlying civil proceedings, including all appeals, had concluded. The court of appeals determined in this case that Glaze's malpractice claim similarly did not accrue until the criminal proceedings against him were concluded by the order of dismissal entered by the superior court. Because that order was entered on July 6, 1999, the court of appeals held that Glaze's malpractice suit, filed on December 14, 2000, was commenced within two years after the cause of action accrued. Glaze, 203 Ariz. at 404 ¶ 16, 55 P.3d at 98.

¶ 7 Judge Pelander concurred in the result, but only because he felt constrained to do so by Amfac I and Amfac II. Id. at 404 ¶ 18, 55 P.3d at 98 (Pelander, J., concurring). Left to his own devices, Judge Pelander would have adopted the "two-track" approach of Coscia v. McKenna & Cuneo, L.L.P., 25 Cal.4th 1194, 108 Cal.Rptr.2d 471, 25 P.3d 670 (2001). Glaze, 203 Ariz. at 405, 406-07 ¶¶ 24, 27-28, 55 P.3d at 99, 100-01. Coscia held that a cause of action for legal malpractice accrues as soon as the plaintiff has actual or constructive notice of his attorney's wrongful conduct. 108 Cal.Rptr.2d 471, 25 P.3d at 680. If, however, the malpractice plaintiff's criminal proceedings are still ongoing at the time the plaintiff files his malpractice suit, the trial court may stay the malpractice action while the plaintiff pursues his post-conviction remedies. Id.

¶ 8 Judge Brammer dissented, concluding that Glaze's cause of action had accrued no later than April 23, 1997, the date on which he filed his Rule 32 petition alleging ineffective assistance of counsel. Glaze, 203 Ariz. at 408 ¶ 36, 55 P.3d at 102 (Brammer, J., dissenting). Although he assumed that the Amfac rule requiring termination of the underlying proceedings applied in the context of a malpractice action arising out of a criminal prosecution, id. at 407 ¶ 31, 55 P.3d at 101, Judge Brammer believed that Glaze's criminal case had concluded at the termination of his direct appeal, id. at 407-08 ¶¶ 33-34, 55 P.3d at 101-02.

II.

¶ 9 The parties agree that Glaze's suit is governed by the two-year statute of limitations in A.R.S. § 12-542. See Kiley v. Jennings, Strouss & Salmon, 187 Ariz. 136, 139, 927 P.2d 796, 799 (App.1996). Section 12-542 provides that certain actions "shall be commenced and prosecuted within two years after the cause of action accrues." (Emphasis added.) Other Arizona statutes of limitation have identical language. See, e.g., A.R.S. §§ 12-541 to -544, -546, -548 (2003) (requiring that various actions be commenced within a specified time "after the cause of action accrues"). But these statutes of limitation do not purport to define when a cause of action "accrues." Rather, under § 12-542 and the other general limitations statutes, that analysis has been left to judicial decision.

¶ 10 The determination of when a cause of action accrues requires an analysis of the elements of the claim presented. For example, it has long been settled that an essential element of a claim for malicious prosecution is that the prosecution terminate in favor of the plaintiff. See Overson v. Lynch, 83 Ariz. 158, 161, 317 P.2d 948, 949 (1957). Therefore, for purposes of the one-year statute of limitations governing malicious prosecution claims, A.R.S. § 12-541, this cause of action does not accrue until the underlying prosecution has terminated in favor of the plaintiff. See Owen v. Shores, 24 Ariz.App. 250, 251, 537 P.2d 978, 979 (1975).

¶ 11 No Arizona case addresses when a cause of action accrues when the allegation is that a lawyer's malpractice has caused the plaintiff's criminal conviction. Our cases, however, have repeatedly addressed when a cause for legal malpractice in the civil context accrues. We first turn to an analysis of those cases.

A.

¶ 12 As with all negligence claims, a plaintiff asserting legal malpractice must prove the existence of a duty, breach of duty, that the defendant's negligence was the actual and proximate cause of injury, and the "nature and extent" of damages. Phillips v. Clancy, 152 Ariz. 415, 418, 733 P.2d 300, 303 (App.1986). A necessary part of the legal malpractice plaintiff's burden of proof of proximate cause is to establish that "but for the attorney's negligence, he would have been successful in the prosecution or defense of the original suit." Id.

¶ 13 Given these elements of the tort claim, a legal malpractice claim 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." Kiley, 187 Ariz. at 139, 927 P.2d at 799. Because an essential element of the claim is that the plaintiff was injured by the attorney's malpractice, "[n]egligence alone is not actionable; actual injury or damages must be sustained before a cause of action in negligence is generated." Amfac II, 138 Ariz. at 153, 673 P.2d at 793.

¶ 14 The Amfac decisions applied these general principles to a claim that an attorney's negligence in failing to name a proper plaintiff resulted in the dismissal of a lawsuit. See Amfac I, 138 Ariz. at 155, 673 P.2d at 795. The plaintiff filed suit more than two years after discovering the attorney's negligence, but less than two years after the conclusion of the appeal in the underlying civil action. Id. at 156, 673 P.2d at 796. Thus, the issue was "when a cause of action accrues for legal malpractice which occurs during the course of litigation." Amfac II, 138 Ariz. at 153, 673 P.2d at 793. We held that the cause of action did not accrue "until the appellate process is completed or is waived by a failure to appeal." Id. at 154, 673 P.2d at 794.

¶ 15 This holding was directly tied to the basic elements of the legal malpractice tort. The defendant in Amfac asserted that the plaintiff's cause of action had accrued when the plaintiff knew or should have known of the defendant's negligent conduct. Id. That argument, however, ignored "one of the essential elements of a claim for negligence—injury to the plaintiff." Amfac I, 138 Ariz. at 156,673 P.2d at 796. A claim of legal malpractice requires more than negligence by an attorney; in addition, "actual injury or damages must be sustained before a cause of action in negligence is generated." Amfac II, 138 Ariz. at 153, 673 P.2d at 793; id. at 154, 673 P.2d at 794 ("[E]ven where a plaintiff has discovered actual negligence, if he has sustained no damages, he has no cause of action."). While the underlying civil case is still pending on appeal, the possibility always exists that the malpractice plaintiff...

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