Silvers v. Brodeur

• Decision Date: 11 July 1997
• Docket Number: No. 53A01-9612-CV-414,53A01-9612-CV-414
• Citation: 682 N.E.2d 811
• Parties: Dwayne SILVERS, Appellant-Plaintiff, v. Lawrence J. BRODEUR, Appellee-Defendant.
• Court: Indiana Appellate Court

Page 811

682 N.E.2d 811

Dwayne SILVERS, Appellant-Plaintiff, v. Lawrence J. BRODEUR, Appellee-Defendant.

No. 53A01-9612-CV-414.

Court of Appeals of Indiana.

July 11, 1997.

Transfer Denied Dec. 4, 1997.

Jon R. Pactor, Indianapolis, for Appellant-Plaintiff.

Ben S. Hoff, III, Nashville, for Appellee-Defendant.

OPINION

BAKER, Judge.

Appellant-plaintiff Dwayne Silvers requests this court to consider when the statute of limitations begins to run on a criminal defendant's claim for malpractice against his defense attorney. Specifically, Silvers appeals the trial court's grant of summary judgment in favor of his attorney, appellee-defendant Lawrence J. Brodeur, on the grounds that the statute of limitations had elapsed prior to Silvers' filing of his legal malpractice complaint.

FACTS

The facts most favorable to Silvers, the non-movant, reveal that in June of 1983, Silvers was charged with murder and two counts of attempted murder. Shortly thereafter, his trial date was set for August 17, 1983. On August 8, 1983, Brodeur contacted Silvers and began negotiating to represent him. Silvers agreed, fired his original counsel and contracted with Brodeur. Two days later, Brodeur orally requested a continuance of Silvers' trial date, which was denied. Brodeur then advised Silvers to plead guilty to avoid the possibility of receiving a 120-year sentence if he was convicted on all charges. On August 12, 1983, Silvers pled guilty and was sentenced to thirty-five years imprisonment.

Thereafter, on August 23, 1985, Silvers filed a complaint against Brodeur with the Indiana Supreme Court Disciplinary Commission in which he alleged that Brodeur had negligently represented him. At approximately the same time, Silvers filed a petition for post-conviction relief, arguing that his guilty plea should be set aside because it was not entered knowingly, intelligently and voluntarily due to his counsel's ineffectiveness. The post-conviction court agreed and, on December 20, 1990, set aside Silvers' guilty plea. Silvers was subsequently retried and, in 1991, was convicted of criminal recklessness. However, because Silvers had already served the maximum sentence for a conviction for criminal recklessness, he was released.

On August 17, 1992, Silvers filed a complaint against Brodeur for legal malpractice. In his answer, Brodeur argued that the statute of limitations on Silvers' claim had begun to run on the date Silvers filed his complaint with the Disciplinary Commission. Brodeur then filed a motion for summary judgment on the basis of the statute of limitations which, following a hearing, the trial court granted. Silvers now appeals.

DISCUSSION AND DECISION ¹

Silvers challenges the trial court's entry of summary judgment in favor of Brodeur. In particular, he contends that the trial court erred in determining that the statute of limitations for his legal malpractice claim began to run on the day he discovered the alleged malpractice, which was the day he filed his complaint with the Disciplinary Commission. Instead, Silvers argues that the statute of limitations did not begin to run until, at the earliest, his petition for post-conviction relief was granted.

In reviewing the grant of summary judgment, we apply the same standard as the trial court. Specifically, we must determine whether genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Ind.Trial Rule 56(C). Neither the trial court, nor the reviewing court, may look beyond the evidence specifically designated to the trial court. Seufert v. RWB Medical Income Properties I Ltd. Partnership, 649 N.E.2d 1070, 1072 (Ind.Ct.App.1995).

In Indiana, statutes of limitation are favored because they afford security against stale claims and promote the peace and welfare of society. A.M. v. Roman Catholic Church, 669 N.E.2d 1034, 1037 (Ind.Ct.App.1996), trans. denied. They are enacted upon the presumption that one having a well-founded claim will not delay in enforcing it. Id. The defense of a statute of limitation is peculiarly suitable as a basis for summary judgment. Id.

The statute of limitation for a claim of legal malpractice is two years. IND. CODE § 34-1-2-2; Lambert v. Stark, 484 N.E.2d 630 (Ind.Ct.App.1985), trans. denied. Further, legal malpractice actions are subject to the "discovery rule," which provides that the statute of limitations does not begin to run until such time as the plaintiff knows, or in the exercise of ordinary diligence could have discovered, that he had sustained an injury as the result of the tortious act of another. Madlem v. Arko, 592 N.E.2d 686, 687 (Ind.1992). For a cause of action to accrue, it is not necessary that the full extent of damage be known or even ascertainable, but only that some ascertainable damage has occurred. Doe v. United Methodist Church, 673 N.E.2d 839, 842 (Ind.Ct.App.1996), trans. denied.

Another panel of this court has applied the discovery rule to a criminal defendant's legal malpractice action against his former defense attorney. In Diaz v. Carpenter, 650 N.E.2d 688 (Ind.Ct.App.1995), cert. denied --- U.S. ----, 116 S.Ct. 572, 133 L.Ed.2d 496 (1995), we held that the criminal defendant's malpractice action was barred by the statute of limitations because it was not commenced within two years of his discovery of the alleged malpractice. Specifically, we determined that the criminal defendant, who claimed that his appellate attorney failed to include an issue in his appellate brief, learned of the alleged malpractice at the latest when he read and received the brief. Id. at 691. Because the criminal defendant did not file his malpractice action until almost three years later, we determined that his complaint was barred by the statute of limitations. Id.

In the instant case, the record reveals that Silvers filed his complaint against Brodeur with the Disciplinary Commission in 1985. In pertinent part, the complaint provided as follows:

ITEM 1. In order to convicne [sic] my parents and myself to hire him, He intimated that the Judge was racialy [sic] prejudiced, by stateing [sic] that I should not have a black attorney in that county because [the Judge] would certainly give me the maximum possible sentence if I retained my present black lawyer, a Mr. Alphonso Mann of Bloomington.

ITEM 2. He slandered Mr. Mann, saying that he could do more in one day than Mr. mann [sic] had done in the whole three months he had been retained.

ITEM 3. He committed Fraud, giving us a phony background, saying that his "particular field of expertise" was murder cases, but we discovered that check forgery was the "heaviest" case he had handled to date.

ITEM 4. He assured me that if I accepted, that after five or six years, the Department of Correction would percieve [sic] that I was not a violent person, and considering all the money I was saveing [sic] the county, I would'nt [sic] have to do more than give [sic] (5) to ten (10) years at the most.

ITEM 5. He assured me that I would probably go to a minimum security institution because of my age, nameing [sic] I.Y.C.

ITEM 6. He said that the prosecutors views were that I should not spend my life incarcerated, and believed it to be a freak accident.

ITEM 7. After two hours of high pressure "drilling" in wich [sic] he kept insistantly [sic] repeating his false promises, he told me he had no time to prepare for the trail [sic] saying that the best he could do for me, was the plea bargain, because two days was not enough time, him being new to the case. I told him to file for continuence [sic], but he said he had already done that and been denied. Later, we discovered this was a lie, because no record exsisted [sic] of any motions being filed whatsoever. Not knowing any better, I accepted.

Record at 37-38. In sum, this complaint alleges that Silvers employed Brodeur, that Brodeur acted negligently and that Silvers had suffered an injury as a result of Brodeur's negligence. By filing the complaint, then, it is clear that Silvers was aware that he had a cause of action against Brodeur in 1985. See Hacker v. Holland, 570 N.E.2d 951 (Ind.Ct.App.1991) (to support claim of legal malpractice, plaintiff must show that he employed attorney, attorney failed to exercise ordinary skill and knowledge and failure proximately caused plaintiff damage), trans. denied. Pursuant to the discovery rule, therefore, Silvers' 1992 civil malpractice action is barred by the statute of limitations.

Nevertheless, Silvers contends that his cause of action for legal malpractice did not accrue, and the statute of limitations did not begin to run, until his conviction was set aside by the post-conviction court on December 20, 1990. In particular, Silvers argues that without the nullification of his conviction, he could not prove damages or causation and, therefore, could not establish a claim for legal malpractice. Further, Silvers equates his malpractice claim with that of malicious prosecution, which does not accrue until after the plaintiff successfully defends a claim asserted against him by the defendant. See Butt v. McEvoy, 669 N.E.2d 1015, 1017 (Ind.Ct.App.1996) (claim for malicious prosecution requires proof that defendant instituted proceedings against plaintiff, defendant acted with malice in doing so, prosecution was initiated without probable cause and prosecution terminated in plaintiff's favor). Thus, Silvers requests this court to abandon the rule applied in Diaz, and to adopt an exception to the traditional discovery rule for cases involving a convicted defendant's legal malpractice complaint.

In support of his contention, Silvers cites to the decisions of various jurisdictions, the majority of which hold that a plaintiff's cause of action for legal malpractice against his former criminal defense attorney does not accrue until the plaintiff is exonerated or has otherwise successfully proven his innocence. For example, in Stevens v. Bispham, 316 Or. 221, ...