Moss v. Mamalis, No. 94,379.

Decision Date14 July 2006
Docket NumberNo. 94,379.
Citation138 P.3d 380
PartiesJoseph K. MOSS, Appellant, v. James T. MAMALIS, et al., Appellees.
CourtKansas Court of Appeals

Christopher M. McHugh and Bach T. Hang, of Joseph & Hollander, P.A., of Wichita, for appellant.

Melissa E. Kasprzyk, Thomas E. Wright, and Allison M. Kenkel, of Wright, Henson, Clark, Hutton, Murdrick & Gragson, LLP, of Topeka, for appellee James T. Mamalis.

Julie St. Peter, of Kansas Department of Corrections, for appellees Tiffany Jones and State of Kansas.

Before RULON, C.J., ELLIOTT, J., and KNUDSON, S.J.

RULON, C.J.

Plaintiff Joseph K. Moss appeals the district court's awards of summary judgment in favor of defendants James T. Mamalis, Tiffany Jones, and the State of Kansas. Plaintiff argues the district court erroneously found the statute of limitations barred plaintiff's legal malpractice claim against Mamalis and erroneously found tort liability did not extend to Tiffany Jones and the State of Kansas on the negligence and civil rights claims presented. We affirm in part, reverse in part, and remand for further proceedings.

On January 17, 2001, the district court revoked the plaintiff's probation in two separate cases for a violation which did not involve the commission of a new offense. The journal entry for each revocation imposed a postrelease supervision term of 24 months. However, after receipt of a letter by the Department of Corrections (DOC) indicating the imposition of a postrelease supervision term was error, the district court entered nunc pro tunc orders for both journal entries, amending them to read: "No post-release supervision period to be served per K.S.A. 22-3716(e)." Neither the plaintiff nor the DOC received notice of these nunc pro tunc orders.

Consequently, upon plaintiff's release from prison, he was required to serve nearly all of a 24-month postrelease supervision term. On September 16, 2003, the plaintiff sued defendant Mamalis for legal malpractice and for violations of his civil liberties and sued defendants Jones and the DOC for negligence and for violations of his civil liberties. The State of Kansas was eventually substituted for the DOC as a party in the suit.

Ultimately, the district court granted defendant Mamalis' motion for summary judgment, finding the statute of limitations barred plaintiff's claim for malpractice. The district court further found Mamalis was not a state actor subject to suit under 42 U.S.C. § 1983 (2000). The district court eventually granted the summary judgment motion filed by defendants Jones and the State of Kansas. The district court further found the plaintiff had abandoned any claim against the State of Kansas, except under a theory of respondeat superior. The court found Jones owed no duty to the plaintiff which would form the basis for a negligence suit and further held defendants Jones and the State of Kansas were protected by the discretionary function exception of the Kansas Tort Claims Act (KTCA), K.S.A. 75-6104(e).

Statute of Limitations

As noted above, the district court granted summary judgment to Mamalis on both the malpractice claim and the claim brought pursuant to 42 U.S.C. § 1983. On appeal, the plaintiff does not challenge the district court's judgment disposing of the Section 1983 claim against Mamalis. Consequently, such claim is deemed abandoned. See Roy v. Young, 278 Kan. 244, 248, 93 P.3d 712 (2004). The plaintiff does, however, contend the district court erred in granting summary judgment to Mamalis on the legal malpractice claim.

Ordinarily, summary judgment is only proper when the available pleadings, depositions, answers to interrogatories, admissions, and affidavits demonstrate the absence of a genuine issue of material fact, so that the moving party is entitled to judgment as a matter of law. Appellate review is identical to the district court's review of such a motion to the extent that all facts and reasonable inferences must be interpreted in favor of the party against whom summary judgment is sought. See State ex rel. Stovall v. Reliance Ins. Co., 278 Kan. 777, 788, 107 P.3d 1219 (2005). However, when the parties do not dispute the pertinent facts upon which the summary judgment ruling was based, appellate review is unlimited. See Roy, 278 Kan. at 247, 93 P.3d 712.

The district court found the plaintiff's malpractice claim against Mamalis was barred by the 2-year statute of limitations in K.S.A. 60-513(a)(4) because the plaintiff's cause of action for malpractice accrued on January 17, 2001, when the probation revocation journal entries were filed. The court reasoned the injury suffered by the plaintiff was the improper imposition of postrelease supervision at the time probation was revoked and the plaintiff knew or should have known of the injury at the time the court's decision was rendered.

Although legal malpractice may arise in tort or in contract law, there is no specific or implied provision of contract which the plaintiff contends was violated in this case. Rather, the plaintiff has claimed his attorney breached a duty of reasonable diligence or competence in legal representation, a duty imposed by law. Consequently, the district court properly found the plaintiff's action against Mamalis sounded in tort, which is governed by the 2-year limitations period of K.S.A. 60-513(a)(4). See KPERS v. Reimer & Koger Assocs., Inc., 262 Kan. 110, 114-15, 936 P.2d 714 (1997) (holding that a legal malpractice action was properly characterized as tort where attorney's duty was inherent in the attorney/client relationship rather than specifically imposed within the contract provisions).

Nevertheless, the determination of the accrual date for a cause of action in tort is governed by K.S.A. 60-513.

"(b) Except as provided in subsection (c) and (d), the cause of action listed in subsection (a) shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall an action be commenced more than 10 years beyond the time of the act giving rise to the cause of action." K.S.A. 60-513(b).

The term "substantial injury" means an injury for which a legal action lies. See Roof-Techs Int'l, Inc. v. State, 30 Kan. App.2d 1184, 1193, 57 P.3d 538 (2002), rev. denied 275 Kan. 965 (2003) (citing Roe v. Diefendorf, 236 Kan. 218, 222-23, 689 P.2d 855 [1984]). It is knowledge of the fact of an actionable injury, not the extent, which triggers the statute of limitations. See Roof-Techs Int'l, 30 Kan.App.2d at 1194, 57 P.3d 538 (citing Bryson v. Wichita State University, 19 Kan.App.2d 1104, 1108, 880 P.2d 800, rev. denied 256 Kan. 994 [1994]).

Depending upon the facts and circumstances of each case, one of four legal theories may apply to a determination of the accrual date for a legal malpractice action: (1) the occurrence rule; (2) the damage rule; (3) the discovery rule; and (4) the continuous representation rule. See Pancake House, Inc. v. Redmond, 239 Kan. 83, 87, 716 P.2d 575 (1986).

Under the occurrence theory, the statute of limitations begins to run from the date the negligent act was committed. Pancake House, 239 Kan. at 87, 716 P.2d 575. We understand the district court adopted this theory in finding that the statute of limitations for the malpractice action began to run on January 17, 2001, the date of the probation revocation. We disagree.

The plaintiff challenges the application of the occurrence rule in this case, citing Dearborn Animal Clinic, P.A. v. Wilson, 248 Kan. 257, 806 P.2d 997 (1991). In Dearborn Animal Clinic, an attorney drafted an asset purchase agreement, which was to provide a requirement the purchaser buy stock in a third party. The purchase agreement actually provided only an option to purchase the stock, in opposition to the intent of the sellers, and the sellers ultimately sued their attorney for malpractice. The attorney raised the statute of limitations as a defense. Even though our Supreme Court noted the negligent act occurred when the purchase agreement was improperly drafted, the court concluded the statute of limitations did not bar the seller's suit against their attorney because the cause of action did not accrue until the client had suffered injury and had reasonable knowledge of the injury. 248 Kan. at 265, 806 P.2d 997.

Based on Dearborn Animal Clinic, the plaintiff contends his malpractice action against defendant Mamalis did not accrue until September 21, 2001, when plaintiff was released from prison and began serving the illegal postrelease supervision period because, until that time, Mamalis' negligence had not caused plaintiff actionable injury. We agree. Before a cause of action in tort may accrue, the plaintiff must have suffered a legally cognizable deprivation proximately caused by the breach of a duty by another. See Holt v. Wesley Med. Center, 277 Kan. 536, 541, 86 P.3d 1012 (2004).

Defendant Mamalis attempts to distinguish the negligent legal representation in a civil matter characterized by Dearborn Animal Clinic from the negligent legal representation in a criminal matter as in the present case. This argument is less than compelling. Although Mamalis correctly asserts the imposition of a postrelease supervision term violated K.S.A.2005 Supp. 22-3716(e) at its inception, this fact is indistinguishable from the negligent drafting of the purchase agreement in Dearborn Animal Clinic, which also erroneously imposed a legal obligation upon the client from its inception.

Under the damage theory, a cause of action does not accrue until the negligent representation has caused a legally cognizable injury to the client. Pancake House, 239 Kan. at 87, 716 P.2d 575. Here, the...

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