Seevers v. Potter
| Decision Date | 29 September 1995 |
| Docket Number | No. S-94-077,S-94-077 |
| Parties | David W. SEEVERS, Appellant, v. Paul Stephen POTTER, Appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Demurrer: Pleadings: Appeal and Error. When reviewing an order sustaining a demurrer, an appellate court accepts the truth of the facts which are well pled, together with the proper and reasonable inferences of law and fact which may be drawn therefrom, but does not accept as true the conclusions of the pleader.
2. Judgments: Appeal and Error. As to questions of law, an appellate court has an obligation to reach a conclusion independent from a trial court's conclusion in a judgment under review.
3. Limitations of Actions: Malpractice: Attorneys at Law: Prisoners. The 4. Statutes: Legislature: Intent: Appeal and Error. In settling upon the meaning of a statute, an appellate court must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense, it being the court's duty to discover, if possible, the Legislature's intent from the language of the statute itself.
statute of limitations on pursuing a legal malpractice claim against a criminal defense attorney begins to run upon the occurrence of the professional negligence alleged, see Neb.Rev.Stat. § 25-222 (Reissue 1989), and is not tolled while the petitioner is imprisoned.
5. Statutes: Appeal and Error. In the absence of anything indicating to the contrary, statutory language is to be given its plain and ordinary meaning; an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous.
Joel G. Lonowski, of Morrow, Poppe, Otte, Watermeier & Phillips, P.C., Lincoln, for appellant.
Steven H. Heldt, of Smith, Heldt & McKeone, Lexington, for appellee.
David W. Seevers brought this criminal defense legal malpractice action seeking damages in the amount of $12,362.73 for the alleged professional negligence of the defendant, Paul Stephen Potter, stemming from Potter's representation of Seevers in various criminal matters. Upon a demurrer filed by Potter, the district court dismissed Seevers' amended petition on the ground that it was barred by the statute of limitations, Neb.Rev.Stat. § 25-222 (Reissue 1989). Seevers asks this court to determine that the statute of limitations for pursuing a legal malpractice claim against a criminal defense attorney is tolled until postconviction relief is granted. We affirm because Seevers' imprisonment did not toll the statute of limitations.
Seevers contends that the district court erred in (1) concluding that Seevers' cause of action was barred by the statute of limitations and (2) finding that the statute of limitations was not tolled when Seevers sought postconviction relief.
When reviewing an order sustaining a demurrer, an appellate court accepts the truth of the facts which are well pled, together with the proper and reasonable inferences of law and fact which may be drawn therefrom, but does not accept as true the conclusions of the pleader. S.I. v. Cutler, 246 Neb. 739, 523 N.W.2d 242 (1994). With that in mind, we take as true for the purposes of the demurrer the following facts set forth by Seevers in his amended petition.
In July 1989, Seevers was arrested and charged with possession of controlled substances, distribution of controlled substances, and violation of probation. Thereafter, Seevers retained Potter to represent him with regard to the criminal charges. During the course of Potter's legal representation of Seevers, Potter advised Seevers that he could not sustain a viable defense to the criminal charges and suggested that it would be in Seevers' best interests to negotiate a plea bargain. Pursuant to Potter's advice, Seevers pled no contest to all charges in exchange for the prosecutor's agreement to dismiss other criminal matters which were allegedly pending against Seevers.
According to Seevers, Potter advised that if Seevers accepted the plea agreement, Seevers would be sentenced to an aggregate total of 3 to 6 years' imprisonment in a minimum security facility. In fact, the district court sentenced Seevers to an aggregate term of 7 to 15 years in the Nebraska State Penitentiary. Immediately following sentencing, Seevers requested that Potter take the necessary steps in order to appeal the sentences imposed by the district court. Potter allegedly represented to Seevers that he would perfect such an appeal, but subsequently During his incarceration, Seevers retained different counsel in an attempt to obtain early parole. Seevers' request for early parole was denied. Subsequently, in August 1992, Seevers employed a third attorney and filed a motion in the district court for Lincoln County, requesting the court to vacate and set aside his original sentences on the grounds that Potter's actions violated Seevers' constitutional rights. On September 2, the district court sustained Seevers' motion and vacated his sentences. On September 9, Seevers was resentenced to 2 to 5 years for both controlled substance charges and not less than 1 year for the probation violation.
failed and refused to do so. Seevers began serving his sentences.
Seevers filed the original petition in the instant legal malpractice action on September 8, 1993, contending that Potter was negligent in failing to exercise the ordinary skill and knowledge of an attorney in the State of Nebraska and Lincoln County and that Potter failed and refused to (1) properly advise Seevers of the ramifications of entering into the original plea bargain agreement prior to his sentencing in February 1990 and (2) timely appeal Seevers' February 1990 sentences. Seevers requested $12,362.73 in damages, reflecting the attorney fees and costs he incurred in filing his various appeals and motions.
In response to Seevers' amended petition, Potter filed a demurrer arguing that Seevers' amended petition failed to set forth facts sufficient to state a cause of action. The district court found that Seevers' action was barred by § 25-222 and sustained Potter's demurrer. Seevers elected to stand on his amended petition, and the district court dismissed Seevers' action.
In an appellate court's review of a ruling on a general demurrer, the court is required to accept as true all the facts which are well pled and the proper and reasonable inferences of law and fact which may be drawn therefrom, but not the conclusions of the pleader. Proctor v. Minnesota Mut. Fire & Cas., 248 Neb. 289, 534 N.W.2d 326 (1995); Carlson v. Metz, 248 Neb. 139, 532 N.W.2d 631 (1995); Barks v. Cosgriff Co., 247 Neb. 660, 529 N.W.2d 749 (1995). As to questions of law, an appellate court has an obligation to reach a conclusion independent from a trial court's conclusion in a judgment under review. George Rose & Sons v. Nebraska Dept. of Revenue, 248 Neb. 92, 532 N.W.2d 18 (1995); Unland v. City of Lincoln, 247 Neb. 837, 530 N.W.2d 624 (1995); Winslow v. Hammer, 247 Neb. 418, 527 N.W.2d 631 (1995).
As a preliminary matter, we note that neither the trial court nor this court was asked to address whether Seevers may maintain an action for legal malpractice under the facts set forth in his petition, since he obtained only a reduction in sentence rather than an acquittal. Rather, we are asked to determine only whether Seevers' imprisonment tolled the statute of limitations. An appellate court will not consider on appeal an issue that was not presented to or passed upon by the trial court. Ashland State Bank v. Elkhorn Racquetball, Inc., 246 Neb. 411, 520 N.W.2d 189 (1994). Thus, for the purposes of this opinion, we assume, without deciding, that Seevers has pled a viable cause of action.
Section 25-222 states:
Any action to recover damages based on alleged professional negligence or upon alleged breach of warranty in rendering or failure to render professional services shall be commenced within two years next after the alleged act or omission in rendering or failure to render professional services providing the basis for such action; Provided, if the cause of action is not discovered and could not be reasonably discovered within such two-year period, then the action may be commenced within one year from the date of such discovery or from the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier; and provided further, that in no event may any action be commenced to recover damages for professional negligence or breach of warranty in rendering or failure to render professional services more than ten years after the date of rendering or failure to render such professional service which provides the basis for the cause of action.
Seevers argues that in legal malpractice claims related to criminal defense, the statute of limitations is tolled until the criminal defendant successfully obtains postconviction relief. Though it is not expressed in his brief on appeal, Seevers necessarily couches his argument in the language in § 25-222 which allows a client to bring a claim for legal malpractice within 1 year from the date of discovery when the client did not and could not reasonably have discovered the cause of action within the prescribed 2-year period. Seevers intrinsically argues that in cases involving legal malpractice claims involving criminal defense attorneys, it is not reasonably possible for the client to discover his or her cause of action for professional negligence until the client successfully petitions for postconviction relief.
Potter correctly notes that the language of § 25-222 and this court's previous opinions clearly indicate the statute of limitations on professional negligence claims begins to...
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