Richardson v. Denend

Decision Date27 August 1990
Docket NumberNo. 12694-0-II,12694-0-II
Citation795 P.2d 1192,59 Wn.App. 92
PartiesGary RICHARDSON, Appellant, v. William DENEND and Jane Doe Denend, Respondents.
CourtWashington Court of Appeals

Ronald J. Meltzer, Sinsheimer and Meltzer, Seattle, for appellant.

M. Colleen Barrett, George W. McLean, Jr., Julin Fosso Sage McBridge & Mason, Seattle, for respondents.

ALEXANDER, Chief Judge.

Gary Richardson appeals an order of the Kitsap County Superior Court dismissing his malpractice action against attorney William Denend on the basis that his claim against Denend was barred by the applicable statute of limitations. We affirm.

Richardson's complaint against Denend arose out of Denend's representation of Richardson in a criminal case. The criminal matter concluded at the trial level on February 17, 1978, when Richardson was convicted of second degree assault. On May 4, 1981, Richardson, acting pro se, filed a damage action against Denend in Kitsap County Superior Court. The complaint and summons were not served upon Denend until February 17, 1982.

In his complaint, Richardson alleged that Denend was guilty of malpractice in connection with the representation he provided Richardson at the criminal trial. Specifically, Richardson averred that Denend failed to elicit certain testimony from a defense witness at the criminal trial due to a conflict of interest arising from Denend's representation of that witness in another matter. In addition, he claimed that Denend did not develop a consistent defense theory of the case, object to certain testimony presented at trial, or argue the burden of proof on the issue of self-defense in closing argument. 1

Denend moved to dismiss Richardson's claim, alleging that the action was barred by the three-year statute of limitations applicable to actions upon contract. Richardson opposed the motion, asserting that the statute of limitations did not begin to run until such time as he discovered that Denend's conduct at the criminal trial may have constituted malpractice. 2

In ruling on the motion, the trial court concluded that Richardson's filing of the action was not perfected until February 1982, due to his failure to serve Denend within 90 days of the filing of the complaint. 3 The trial court further concluded that Richardson's cause of action for malpractice accrued on February 17, 1978, the date judgment was entered in the criminal trial; or, in the alternative, no later than the date of his sentencing on March 30, 1978. Based on the above conclusions, the trial court ruled that Richardson's action was barred by the statute of limitations.

There is only one issue presented: Did the trial court err in concluding that the action was barred by the statute of limitations? Although Denend's motion was entitled a motion to dismiss, it is apparent that the trial court considered numerous declarations, excerpts from depositions and attachments in ruling on the motion. Accordingly, we view the trial court's ruling as one granting summary judgment. See CR 12(c); Moses Lake v. Grant County, 39 Wash.App. 256, 258, 693 P.2d 140 (1984).

A motion for summary judgment should not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." CR 56(c); Hontz v. State, 105 Wash.2d 302, 311, 714 P.2d 1176 (1986).

Pursuant to RCW 4.16.080(3), an action for attorney malpractice must be commenced within three years. See also Crouch v. Friedman, 51 Wash.App. 731, 734, 754 P.2d 1299 (1988). The court in Peters v. Simmons, 87 Wash.2d 400, 552 P.2d 1053 (1976), however, extended the so called "discovery rule" to legal malpractice actions, holding:

... the statute of limitations for legal malpractice should not start to run until the client discovers, or in the exercise of reasonable diligence should have discovered the facts which give rise to his or her cause of action.

Peters, 87 Wash.2d at 406, 552 P.2d 1053.

Richardson contends that summary judgment was inappropriate because a genuine issue of material fact exists as to when he knew, or in the exercise of reasonable care should have known, that Denend's representation of him at the criminal trial may have constituted malpractice. In this regard, he asserts that he did not learn that Denend's conduct may have constituted malpractice until he conducted independent legal research after he was incarcerated for the assault in February 1980, following an unsuccessful appeal of his conviction on issues unrelated to those which are the subject of the present action. 4

We recognize that application of the discovery rule generally presents questions of fact. See Ohler v. Tacoma General Hospital, 92 Wash.2d 507, 510, 598 P.2d 1358 (1979). In the context of actions for attorney malpractice premised upon errors or omissions allegedly occurring during the course of litigation, however, we find that the application of the discovery rule presents a question of law because the pertinent facts are susceptible of but one conclusion. See Hartley v. State, 103 Wash.2d 768, 775, 698 P.2d 77 (1985).

The discovery rule merely tolls the running of the statute of limitations until the plaintiff has knowledge of the "facts" which give rise to the cause of action; it does not require knowledge of the existence of a legal cause of action itself. See Sahlie v. Johns-Manville Corp., 99 Wash.2d 550, 554, 663 P.2d 473 (1983); Reichelt v. Johns-Manville Corp., 107 Wash.2d 761, 769, 733 P.2d 530 (1987); Gevaart v. Metco Constr., Inc., 111 Wash.2d 499, 502, 760 P.2d 348 (1988). In professional malpractice cases, the pivotal factor which tolls the running of the statute of limitations is the absence of knowledge of injury. See Peters, 87 Wash.2d at 404, 552 P.2d 1053; Gevaart, 111 Wash.2d at 501, 760 P.2d 348.

Consequently, the discovery rule has consistently been applied by our courts in such actions to toll the statute of limitations until the plaintiff discovers, or should have discovered, his or her damage or injury resulting from the professional malpractice. See Peters v. Simmons, supra; Gevaart v. Metco Constr., Inc., supra. 5 Unlike the situation with the provision of other professional services, however, the damages, if any, resulting from the errors or omissions of an attorney allegedly occurring during the course of litigation are embodied in the judgment of a court. The parties to such an action, in turn, are formally advised of the judgment of the court and, hence, receive notification of any damage which results from their attorney's representation. We conclude, therefore, that upon entry of the judgment, a client, as a matter of law, possesses knowledge of all the facts which may give rise to his or her cause of action for negligent representation. 6

Our conclusion is in accord with the majority of jurisdictions which have applied the discovery rule to attorney malpractice actions stemming from errors occurring at trial. See 32 A.L.R.4th 260, Legal Malpractice--Statute of Limitations, § 7-8; 7 Am.Jur.2d, Attorneys at Law, § 221; Watson v. Dorsey, 265 Md. 509, 290 A.2d 530 (1972); Farner v. Fireman's Fund Insurance Co., 748 F.2d 551, 555 (10th Cir.1984); Hunt v. Bittman, 482 F.Supp. 1017, 1022 (D.C.Cir.1980), aff'd, 652 F.2d 196 (D.C.Cir.), cert. denied, 454 U.S. 860, 102 S.Ct. 315, 70 L.Ed.2d 158 (1981); Bell v. Hummel and Pappas, 136 Cal.App.3d 1009, 1017, 186 Cal.Rptr. 688 (1982); Don Reid Ford, Inc. v. Feldman, 421 So.2d 184, 185 (Fla.Dist.Ct.App.1982). 7

The holding in Watson is representative of the reasoning of these courts. In Watson, plaintiffs brought an action for attorney malpractice premised upon the failure of trial counsel in a prior civil action to call certain witnesses. Watson, 290 A.2d at 532. The action was brought more than three years after the entry of judgment in the prior action. Watson, 290 A.2d at 532. The court dismissed Watson's cause of action, concluding that clients are charged with knowledge that they may have been wronged as soon as the case is decided against them and, consequently, the statute of limitations begins to run upon entry of judgment. Watson, 290 A.2d at 533.

We adopt the reasoning of the above courts and hold, as a matter of law, that upon entry of an adverse judgment at trial a client is charged with knowledge, or at least is put on notice, that his or her attorney may have committed malpractice in connection with the representation. See 32 A.L.R.4th, § 7 and 8. Were we to conclude otherwise and adopt the position urged by Richardson, we would be ruling that the statute of limitations is tolled until such time as a dissatisfied client obtains other legal counsel or engages in independent legal research to determine the propriety of the actions of his or her former counsel. This, as noted by the court in Gevaart, is not the law of...

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