Stevens v. Bispham

• Decision Date: 04 September 1991
• Citation: 816 P.2d 700,108 Or.App. 588
• Parties: William A. STEVENS and Janice Stevens, Appellants, v. Joseph D. BISPHAM, Respondent. A8904-02189; CA A64459.
• Court: Oregon Court of Appeals

Page 700

816 P.2d 700

108 Or.App. 588

William A. STEVENS and Janice Stevens, Appellants, v. Joseph D. BISPHAM, Respondent.

A8904-02189; CA A64459.

Court of Appeals of Oregon.

Argued and Submitted April 22, 1991.

Decided Sept. 4, 1991.

David Gernant, Portland, argued the cause for appellants. With him on the briefs were Steven L. Myers and Myers & Knapp, Portland.

Janice M. Stewart, Portland, argued the cause for respondent. With her on the brief were McEwen, Gisvold, Rankin & Stewart, Portland.

Before WARREN, P.J., and RIGGS and EDMONDS, JJ.

WARREN, Presiding Judge.

Plaintiffs William Stevens and Janice Stevens brought this action against William's former criminal defense attorney. William alleged legal malpractice, and Janice, his wife, alleged loss of consortium. William appeals from a summary judgment that was based on his failure to file his complaint within the time required by the Statute of Limitations. ¹ ORS 12.110(1). Defendant purports to cross-assign error to the denial of his motion for summary judgment against Janice. We reverse the summary judgment against William and otherwise affirm.

The court appointed defendant to represent William on November 17, 1986, after he was arrested for robbery, menacing and public indecency. William pleaded no contest to the charges on March 31, 1987. On July 8, 1987, the trial court sentenced him to eight and one-half years in prison. On April 22, 1988, another man confessed to the crimes, and on April 27, 1988, the court vacated William's convictions. On May 21, 1988, he contacted a different attorney and filed this malpractice complaint on April 24, 1989.

After defendant had been appointed in the criminal cases, William and Janice met with him three or four times. ² William told defendant that he was innocent. William does not read well, so defendant read the police reports to him and discussed the evidence with him. According to the reports, on October 23, 1986, three women in a blue Oldsmobile had stopped at the Sahalie Falls viewpoint and had descended some stairs from the parking area when a man wearing blue jeans, a blue plaid shirt and a dark green ski mask came down the steps and demanded their underwear. He pulled out a knife and waved it at them while he masturbated. Before he fled on foot, he removed his mask, revealing his face to one of the victims, Tabet.

William's probation officer questioned him about the case because of an earlier conviction. He denied committing the crime and offered to take a polygraph examination. In the pretest interview, he said that he had possibly driven through the area around the time of the crimes to pick up his wife in Paisley, but he had not turned off on the road to Sahalie Falls. He had been wearing black jeans and a blue plaid shirt, but he denied owning a ski mask. The results of the polygraph examination showed that he had been deceptive. He became agitated when he heard that and admitted that he had seen two or three women around the falls area getting into a blue "Datsun or Toyota type vehicle." The examiner began questioning him more aggressively, and William pulled out a pocket knife and threatened suicide.

Tabet picked defendant's picture out of a photographic display. Several days later, Detective Fredrickson showed Tabet two more recent photographs of William, and she said that she believed that he was the one. Fredrickson checked with William's employer and confirmed that he had not worked on October 23. Janice told Fredrickson that she believed William had been cutting wood on October 23 and that William had not picked her up in Paisley until November 6. She gave Fredrickson William's dark green ski mask and knife. Tabet positively identified the ski mask but could not identify the knife.

William told defendant that, on the day of the crime, he had gone to cut wood with his children and that there were no adults who could confirm his whereabouts. Defendant told him that the state had a strong case. He said that the polygraph results probably would be admissible and would be very damaging. He said that he did not think that he could win an acquittal and that the judge would probably give him a lighter sentence if he pleaded no contest than if he proceeded to trial. On the third day before trial, defendant told William that William needed to decide how he would plead.

A no contest plea was entered. William testified that he had known that it was his decision to make. He had understood from defendant that, if he went to trial and lost, he could be sentenced to 64 years but, if he pleaded no contest, he probably would be sentenced to only 23 years. He had not been sure whether a jury would convict him, because it was the victims' word against his. He testified that, when he entered the plea, he was not satisfied with defendant's representation, because he knew that he was going to go to prison. He thought that defendant should have done some investigation but did not know what kind of investigation was appropriate. He thought that something would have proved his innocence, but he did not know what. He did not want to plead no contest, but he relied on the advice of defendant.

William alleged in his complaint in this case, inter alia, that defendant was negligent in: (1) failing to seek suppression of the photographic identification; (2) failing to investigate; (3) failing to request a line-up; (4) failing to keep plaintiff informed; (5) failing to consult with or refer defendant to a more experienced attorney; (6) advising him to plead no contest; (7) waiving a hearing in mitigation at sentencing; and (8) failing to have him examined by an independent psychiatrist.

Defendant moved for summary judgment on his affirmative defense that both William's and Janice's claims were barred by the Statute of Limitations. The court granted summary judgment against William but, for reasons not apparent on the record, did not decide whether the limitation period had expired for Janice's claim. Defendant states in his brief:

"The parties agreed that defendant would waive the statute of limitations defense on Janice Stevens' claim for loss of consortium pending the result of this appeal on this issue."

Defendant also moved for summary judgment against Janice for failure to state a claim, but the court denied it. However, at her request, it entered a judgment of dismissal without prejudice under ORCP 54 A(2).

We first address William's assignment of error. On review of a summary judgment, we must determine whether a genuine issue of material fact exists and whether defendant was entitled to judgment as a matter of law. ORCP 47 C; Seeborg v. General Motors Corp., 284 Or. 695, 588 P.2d 1100 (1978). The trial court granted summary judgment against William on the basis of ORS 12.110(1), which requires an action to be commenced within two years after the cause of action accrued. A cause of action for legal malpractice accrues when the plaintiff is in fact harmed and knows or should know that the defendant's conduct has caused the harm. U.S. Nat'l Bank v. Davies, 274 Or. 663, 548 P.2d 966 (1976). When a plaintiff should have discovered that a defendant caused his harm is generally a question of fact. See Gannon v. Rogue Valley Medical Center, 92 Or.App. 314, 316, 758 P.2d 873, rev. den. 307 Or. 145, 765 P.2d 813 (1988).

Defendant argues that the limitation period began to run on March 31, 1987, when plaintiff pleaded no contest, which was more than two years before he commenced the action on April 24, 1989. At that time, defendant...