Noske v. Friedberg, C7-02-1073.

• Decision Date: 05 February 2003
• Docket Number: No. C7-02-1073.,C7-02-1073.
• Parties: James L. NOSKE, Appellant, v. Joseph FRIEDBERG, et al., Respondents.
• Court: Minnesota Court of Appeals

656 N.W.2d 409

James L. NOSKE, Appellant, v. Joseph FRIEDBERG, et al., Respondents.

No. C7-02-1073.

Court of Appeals of Minnesota.

February 5, 2003.

Lawrence H. Crosby, Jay D. Olson, Crosby and Associates, St. Paul, MN, for appellant.

William L. Davidson, Paul C. Peterson, Timothy J. O'Connor, Lind, Jensen, Sullivan & Peterson, Minneapolis, MN, for respondents. Considered and decided by PETERSON, Presiding Judge, WILLIS, Judge, and MULALLY, Judge.¹

OPINION

PETERSON, Judge.

In January 1999, a federal district court granted appellant James L. Noske's petition for a writ of habeas corpus and vacated Noske's 1990 assault conviction, based on the court's conclusion that Noske had been denied his Sixth Amendment right to the effective assistance of trial counsel. Noske then brought a legal-malpractice action against respondent Joseph S. Friedberg, who was Noske's defense attorney during the 1990 assault prosecution, and Friedberg's law firm, respondent Joseph S. Friedberg, Chartered. Upon respondents' motion, the district court concluded that Noske's claims were barred by the statute of limitations and dismissed Noske's action. We reverse and remand.

FACTS

In August 1990, Noske was convicted of second-degree assault. He petitioned for postconviction relief, claiming that Friedberg provided ineffective assistance at trial. The district court denied the petition, and Noske appealed from his conviction and from the denial of postconviction relief. This court affirmed the district court in all respects, and the supreme court denied further review. Noske v. State, No. CO-91-2486, 1992 WL 365990 (Minn.App. Dec.15, 1992), review denied (Minn. Jan. 28, 1993).

On May 25, 1993, Noske filed a petition for a writ of habeas corpus in federal district court seeking reversal of his assault conviction and relief from supervised release on the bases that he was denied due process of law by the trial court's failure to instruct the jury as to self-defense and that he was denied effective assistance of counsel. In January 1999, the federal district court found that "contrary to the legal conclusion of the state court, [Noske] was denied his Sixth Amendment right to effective assistance of counsel and was prejudiced thereby." Noske v. Stender, No. 4-93-518, slip op. at 22 (D.Minn. Jan. 8, 1999). Therefore, the federal court concluded, Noske was subject to custody in violation of the United States Constitution and entitled to federal habeas relief. Id. The court granted Noske's petition for a writ of habeas corpus, vacated his 1990 assault conviction, and ordered that Noske may be retried on the assault charge within 90 days. Id. at 23. The state declined to retry Noske and did not appeal the order granting habeas relief.

In September 2001, Noske served respondents with a summons and complaint alleging legal malpractice. Noske claimed that Friedberg's negligent acts caused Noske to be convicted of second-degree assault and incarcerated, prevented him from obtaining a license to practice law in Minnesota, and increased his sentence in a federal tax case. Noske also alleged breach of contract and misrepresentation.

Pursuant to Minn. R. Civ. P. 12.02, respondents moved to dismiss for failure to state a claim upon which relief can be granted, arguing that Noske's claims accrued when Noske was convicted in 1990, and therefore, they were barred by the statute of limitations. The district court granted the motion and dismissed Noske's claims.

ISSUE

Did Noske's legal-malpractice action accrue when he was convicted?

ANALYSIS

The construction and applicability of statutes of limitations are questions of law reviewed de novo. Benigni v. County of St. Louis, 585 N.W.2d 51, 54 (Minn.1998).

"The statute of limitations for a legal malpractice action is six years." Herrmann v. McMenomy & Severson, 590 N.W.2d 641, 643 (Minn.1999) (citing Minn. Stat. § 541.05, subd. 1(5)). A statutory limitation period begins to run when "the cause of action accrues." Minn.Stat. § 541.01 (2002). A cause of action accrues when all of its elements exist to the extent that the claim could withstand a motion to dismiss for failure to state a claim upon which relief can be granted. Bonhiver v. Graff, 311 Minn. 111, 116-17, 248 N.W.2d 291, 296 (1976).

A claim is sufficient against a motion to dismiss * * * if it is possible on any evidence which might be produced, consistent with the pleader's theory, to grant the relief demanded. To state it another way, under this rule a pleading will be dismissed only if it appears to a certainty that no facts, which could be introduced consistent with the pleading, exist which would support granting the relief demanded.

N. States Power Co. v. Franklin, 265 Minn. 391, 395, 122 N.W.2d 26, 29 (1963) (citation omitted). In the context of a legal-malpractice action, the supreme court has also stated, "A cause of action survives a motion to dismiss so long as `some' damage has occurred as a result of the alleged malpractice." Herrmann, 590 N.W.2d at 643 (citations omitted).

The district court determined that because a legal-malpractice action can survive a motion to dismiss when some damage has occurred as a result of the alleged malpractice, and a cause of action accrues when the claim can survive a motion to dismiss, Noske's legal-malpractice action accrued when Noske suffered some damage. Therefore, the district court concluded, because the injuries that Noske alleged he suffered as a result of Friedberg's malpractice began when Noske was convicted in 1990, 11 years before he initiated his lawsuit, Noske's action was barred by the six-year statute of limitations.

Noske argues that although Friedberg's alleged malpractice occurred at his trial in 1990 and the damages that he alleged he suffered as a result of the malpractice included his conviction and incarceration in 1990, his malpractice action could not have survived a motion to dismiss until he obtained habeas corpus relief in 1999. Noske contends that he had no legally cognizable harm or damages before the federal court granted his petition for a writ of habeas corpus and vacated his conviction.

No Minnesota appellate court opinion has addressed whether a person who has been convicted of a crime and incarcerated has suffered legally cognizable harm for purposes of maintaining a legal-malpractice action against the person's criminal-defense attorney. In making its decision, the district court could only rely on opinions in cases that did not involve allegations that a defendant in a criminal proceeding was convicted as a result of defense counsel's legal malpractice. Applying those precedents to the facts of this case leads to the conclusion that the district court reached if, at the moment Noske was convicted, he suffered damage that would sustain a legal-malpractice action. Although we do not disagree with the district court's determination that when Noske was convicted in 1990, he suffered some harm, we conclude that until Noske's conviction was vacated in 1999, it was a legal conviction and, therefore, should not be recognized as damage that would sustain a cause of action for legal malpractice. To prevail in a legal-malpractice action, a plaintiff must prove by a fair preponderance of the evidence (a) the existence of an attorney-client relationship; (b) acts amounting to negligence or breach of contract; (c) that such acts proximately caused the plaintiff's damages; and (d) that but for the attorney's conduct, the plaintiff would have been successful in the underlying action. Blue Water Corp. v. O'Toole, 336 N.W.2d 279, 281 (Minn.1983) (stating legal-malpractice elements); Wick v. Widdell, 276 Minn. 51, 53-54, 149 N.W.2d 20, 22 (1967) (stating burden of proof for civil actions). Failure to prove any one of these elements defeats the plaintiff's case. Blue Water Corp.,336 N.W.2d at 282. This means that to survive a motion to dismiss, it must be possible for Noske to produce evidence that proves each of these elements.

To prove elements (c) and (d) in his malpractice action, Noske must show that Friedberg's negligent acts caused him to be convicted and sent to prison and that but for Friedberg's acts, he would not have been convicted. But from the moment when Noske was convicted until the moment when his conviction was vacated, his conviction was, in the eyes of the law, a legal conviction. Therefore, to prove all of the elements of his legal-malpractice action before his conviction was vacated, Noske would have to show that his legal conviction would not have occurred but for Friedberg's negligent acts. But allowing Noske to prove that although his conviction is legal, it is, nevertheless, wrongful because it was caused by Friedberg's negligence simultaneously treats the conviction as both legal and wrongful.

This inconsistency can be avoided, however, by requiring a convicted defendant to obtain relief from a conviction before bringing a cause of action for legal malpractice that is based on a claim that defense counsel's negligent acts were the proximate cause of the conviction. Unlike an unsuccessful civil litigant, a convicted defendant may seek a new trial on the ground of ineffective assistance of counsel in a direct appeal from the judgment of conviction, in a postconviction proceeding pursuant to Minn.Stat. §§ 590.01-.06 (2002), or in a federal habeas corpus proceeding. To obtain a new trial on the ground of ineffective assistance of counsel in either a postconviction proceeding or in a direct appeal, a

defendant must affirmatively prove that his counsel's representation "fell below an objective standard of reasonableness" and "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome."

Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, ...