Riemers v. Omdahl

• Decision Date: 12 October 2004
• Docket Number: No. 20040099.,20040099.
• Citation: 687 N.W.2d 445,2004 ND 188
• Parties: Roland C. RIEMERS, Plaintiff and Appellant v. Thomas OMDAHL and Steve Simonson, Defendants and Appellees.
• Court: North Dakota Supreme Court

687 N.W.2d 445

2004 ND 188

Roland C. RIEMERS, Plaintiff and Appellant v. Thomas OMDAHL and Steve Simonson, Defendants and Appellees.

No. 20040099.

Supreme Court of North Dakota.

October 12, 2004.

Roland C. Riemers (pro se), Grand Forks, plaintiff and appellant, submitted on brief.

Patrick J. Maddock and Gerad C. Paul, Camrud, Maddock, Olson & Larson, Ltd., Grand Forks, for defendants and appellees, submitted on brief.

MARING, Justice.

[¶ 1] Roland C. Riemers appealed from a summary judgment dismissing his legal malpractice action against Steve Simonson and Thomas Omdahl. We hold Riemers' malpractice claims are barred by the statute of limitations, and we affirm.

I

[¶ 2] Simonson worked as a lawyer at Omdahl's law firm until October 2000. In March 1999, Simonson helped prepare a premarital agreement for Riemers and Jenese Peters-Riemers. In March 2000, Riemers retained Simonson to defend him against an aggravated assault charge stemming from Riemers' altercation with Peters-Riemers. Riemers subsequently pled guilty to simple assault in October 2000. In May 2001, in Peters-Riemers' divorce action against Riemers, a district court judge declared the premarital agreement invalid and, based in part on Riemers' guilty plea to simple assault, concluded Riemers had a pattern of inflicting domestic violence upon Peters-Riemers. A judgment was entered in the divorce action in June 2001, and we affirmed the judgment in Peters-Riemers v. Riemers, 2002 ND 72, ¶¶ 1, 31, 644 N.W.2d 197, cert. denied 537 U.S. 1195, 123 S.Ct. 1252, 154 L.Ed.2d 1031 (2003).

[¶ 3] By a complaint dated February 12, 2003, Riemers attempted to sue Simonson and his employer, Omdahl, for legal malpractice. The district court dismissed that action without prejudice, concluding Riemers had failed to properly serve process on Simonson and Omdahl. On October 31, 2003, Riemers commenced this legal malpractice action against Simonson and Omdahl, alleging they were negligent in advising him about the premarital agreement and in advising and defending him on the assault charge. Simonson and Omdahl moved for summary judgment, asserting Riemers' action was barred by the statute of limitations. The district court concluded Riemers' claims were barred by the applicable statute of limitations and granted summary judgment dismissing Riemers' action.

II

[¶ 4] Riemers argues the district court erred in granting Simonson and Omdahl summary judgment. In Zuger v. State, 2004 ND 16, ¶¶ 7-8, 673 N.W.2d 615 (citations omitted), we outlined our standard of review for summary judgment:

Summary judgment is a procedural device for promptly disposing of a lawsuit without a trial if there are no genuine issues of material fact or inferences which can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. "Whether summary judgment was properly granted is `a question of law which we review de novo on the entire record.'" On appeal, this Court decides if the information available to the trial court precluded the existence of a genuine issue of material fact and entitled the moving party to summary judgment as a matter of law. Summary judgment is appropriate against parties who fail to establish the existence of a factual dispute on an essential element of a claim on which they will bear the burden of proof at trial.

A party resisting a motion for summary judgment may not simply rely upon the pleadings or upon unsupported, conclusory allegations. "Factual assertions in a brief do not raise an issue of material fact satisfying Rule 56(e)." "Nor may a party merely reassert the allegations in his pleadings in order to defeat a summary judgment motion."

The resisting party must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact and must, if appropriate, draw the court's attention to relevant evidence in the record by setting out the page and line in depositions or other comparable documents containing testimony or evidence raising an issue of material fact.

In summary judgment proceedings, neither the trial court nor the appellate court has any obligation, duty, or responsibility to search the record for evidence opposing the motion for summary judgment. The opposing party must also explain the connection between the factual assertions and the legal theories in the case, and cannot leave to the court the chore of divining what facts are relevant or why facts are relevant, let alone material, to the claim for relief.

Mere speculation is not enough to defeat a motion for summary judgment, and a scintilla of evidence is not sufficient to support a claim. If no pertinent evidence on an essential element is presented to the trial court in resistance to a motion for summary judgment, it is presumed that no such evidence exists.

III

[¶ 5] Riemers argues a plaintiff's knowledge of the accrual of a cause of action is a question of fact, which is not appropriate for summary judgment. He claims a reasonable person would assume that when an injustice was done him in the lower court in his divorce action, it would be corrected in a higher court. He claims, as a pro se litigant, he had a "reasonable person understanding that he really suffered no financial loss until" this Court's May 2002, decision in his appeal. He thus claims the commencement of his action in October 2003, was within the two-year statute of limitations for legal malpractice actions.

[¶ 6] Under N.D.C.C. § 28-01-18(3), a legal malpractice action must be commenced within two years after the cause of action accrues. Wall v. Lewis, 393 N.W.2d 758, 761 (N.D.1986); Binstock v. Tschider, 374 N.W.2d 81, 84 (N.D.1985). We have adopted the discovery rule for legal malpractice actions, which contemplates that the statute of limitations begins to run when the plaintiff knows, or with reasonable diligence should know, of the injury, its cause, and the defendant's possible negligence. Wall, at 761. The discovery rule focuses on whether the plaintiff has been apprised of facts which would place a reasonable person on notice that a potential claim exists, and it prevents the injustice of barring a claim before the plaintiff reasonably could be aware of its existence. Id. The discovery rule employs an objective standard of knowledge, and a plaintiff need not be subjectively convinced of the injury and that the injury was caused by the defendant's negligence. Id.

[¶ 7] Under the discovery rule, the statute of limitations does not begin to run until the plaintiff has incurred some injury or damage. Larson v. Norkot Mfg., Inc., 2002 ND 175, ¶ 10, 653 N.W.2d 33 (citing Wall v. Lewis, 366 N.W.2d 471, 473 (N.D.1985)). It is not necessary for the plaintiff to fully appreciate the potential liability, or even be convinced of an injury; the objective standard requires only that the plaintiff be aware of facts that would place a reasonable person on notice that a potential claim exists. Larson v. Norkot Mfg., Inc., 2001 ND 103, ¶ 13, 627 N.W.2d 386. In Wall, 366 N.W.2d at 473 (quoting Budd v. Nixen, 6 Cal.3d 195, 98 Cal.Rptr. 849, 491 P.2d 433, 436-37 (1971)), we explained:

... until the client suffers appreciable harm as a consequence of his attorney's negligence, the client cannot establish a cause of action for malpractice. Prosser states the proposition succinctly, `It follows that the statute of limitations does not begin to run against a negligence action until some damage has occurred.' (Prosser, Law of Torts (4th ed. 1971), § 30 at p. 144.)

The cause of action arises, however, before the client sustains all, or even the greater part, of the damages occasioned by his attorney's negligence.... Any appreciable and actual harm flowing from the attorney's negligent conduct establishes a cause of action upon which the client may sue.

Indeed, once having discovered his attorney's negligence and having suffered some damage, the client must institute his action within the time prescribed in the statute of limitations or he will be barred from thereafter complaining of his attorney's conduct.

See also Larson, 2002 ND 175, ¶ 10,

653 N.W.2d 33.

[¶ 8] Under the discovery rule, a plaintiff's knowledge is ordinarily a question of fact, and summary judgment is rarely appropriate on the issue of when the plaintiff should have discovered there was a potential malpractice claim. Duncklee v. Wills, 542 N.W.2d 739, 742 (N.D.1996). However, issues of fact may become issues of law if reasonable persons could reach only one conclusion from the facts, see Twogood v. Wentz, 2001 ND 167, ¶ 10, 634 N.W.2d 514,

and a plaintiff's knowledge of a potential claim is an issue of law if the evidence is such that reasonable minds could draw but one conclusion from the evidence. Wall, 393 N.W.2d at 761.

[¶ 9] Here, the defendants' alleged negligent acts, the advice on the premarital agreement in March 1999 and the advice and defense in the criminal case in 2000, occurred more than two years before Riemers commenced this action in October 2003. Riemers claims, however, there are disputed factual issues about when he discovered his injury. He claims he had a reasonable expectation this Court would overturn the divorce court's decision, and to the best of his knowledge and belief, he suffered no irreparable harm until this Court's decision in May 2002. His affidavit in opposition to the motion for summary judgment states:

1. That Steve Simonson, and [sic] employee of Thomas Omdahl, was employed by me about March of 1999 to do a premarital agreement, and later to defend me on a domestic assault charge in March 2000.

2. At no time following those dates have either Simonson &/or Omdahl notified me or any court that they have discontinued their representation of me on any of these matters.

3. That following those dates, I had from time to time ongoing contacts with Simonson &/or Omdahl in regards to those matters, or matters directly or indirectly relating

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