Stevens v. Bispham

Citation851 P.2d 556,316 Or. 221
PartiesWilliam A. STEVENS and Janice Stevens, Respondents on Review, v. Joseph D. BISPHAM, Petitioner on Review. CC A8904-02189; CA A64459; SC S38574.
Decision Date13 May 1993
CourtSupreme Court of Oregon

Lisa C. Brown, Portland, argued the cause, for petitioner on review. With her on the petition, was Janice M. Stewart, of McEwen, Gisvold, Rankin & Stewart, Portland.

David Gernant, Portland, argued the cause, for respondents on review. With him on the response brief, was Steven L. Myers, of Myers & Knapp, Portland.

GILLETTE, Justice.

This is a professional negligence action brought by a former criminal defendant against the lawyer who defended him. The issue presented for our decision is this: At what point does the statute of limitations for legal malpractice begin to run with respect to a lawyer's defense of a client who has been convicted in a criminal case? We hold that it does not begin to run until the plaintiff has been exonerated of the criminal offense through reversal on direct appeal, through post-conviction relief proceedings, or otherwise.

Plaintiff, charged with three counts of Robbery I, three counts of Menacing, and one count of Public Indecency, was convicted and sentenced to imprisonment for eight and one-half years. He began serving his sentence. His convictions were vacated after another person confessed to the crimes. Plaintiff then filed this negligence action for legal malpractice against defendant. 1 Defendant moved for summary judgment on the ground that plaintiff had failed to file the action within the two-year statute of limitations. ORS 12.110. 2 The trial court granted defendant's motion, and plaintiff appealed. The Court of Appeals, concluding that there were unresolved questions of material fact, reversed and remanded. Stevens v. Bispham, 108 Or.App. 588, 816 P.2d 700 (1991). We affirm the decision of the Court of Appeals, but on different grounds.

On review of a summary judgment, we determine whether the moving party is entitled to judgment as a matter of law. ORCP 47 C; Seeborg v. General Motors Corp., 284 Or. 695, 699, 588 P.2d 1100 (1978). In reviewing a trial court's ruling on a motion for summary judgment, we view the evidence and all reasonable inferences to be drawn therefrom in the light most favorable to the nonmoving party. Whitaker v. Bank of Newport, 313 Or. 450, 452, 836 P.2d 695 (1992).

On October 23, 1986, three women who had stopped to look at the Sahalie Falls were accosted by a man wearing a dark green ski mask. The man demanded the women's underwear and waved a knife at them while he exposed himself. As he fled, the man removed his mask, revealing his face to one of the victims. The victims observed a "newer" gray Isuzu pickup truck with a gray canopy in the parking lot.

At the time of the incident, plaintiff was on probation for a conviction for misdemeanor indecent exposure. Plaintiff's probation officer questioned him about the incident. Plaintiff denied committing the crime and consented to a polygraph examination. In the interview conducted by the polygraph operator before administering the test, plaintiff acknowledged that, about the time of the crimes, he had driven through the area where the crimes occurred on his way to Paisley to pick up his wife. Plaintiff insisted, however, that he had not gone to Sahalie Falls.

When plaintiff was advised that the polygraph examination indicated that he had been deceptive about his involvement in the incident, plaintiff became agitated and admitted that, while he was on his way to Paisley, he may have seen two or three women getting into a car. Plaintiff pulled out a pocket knife, held it to his throat, and threatened suicide. Police officers subdued him and held him in temporary confinement due to his mental condition.

Later that day, plaintiff's wife consented to a search of their home and their two vehicles, a 1974 red Maverick and 1972 white Chevrolet pickup truck, which had no canopy. The police seized a dark green stocking cap and a large folding knife from plaintiff's residence. Plaintiff's wife told the police that she believed that her husband had been cutting wood on October 23 and that he had not picked her up in Paisley until November 6.

The victim who had seen the assailant's face picked plaintiff's picture out of a photographic display. Several days later, a detective showed the victim two more recent photographs of plaintiff, and the victim said that she believed that plaintiff was the man who had accosted her. 3 The detective contacted plaintiff's employer and confirmed that plaintiff had not worked on October 23, 1986. The victim later positively identified the color, but not the style, of the seized stocking cap. She could not positively identify the knife.

At his arraignment on November 17, 1986, plaintiff pleaded not guilty to all charges. The trial court appointed defendant to represent plaintiff. Defendant met with plaintiff three or four times, generally with plaintiff's wife also present. Because plaintiff could not read, defendant read the police reports to him and discussed the evidence with him. Plaintiff consistently denied committing the crimes. Plaintiff told defendant that, on the day of the crime, he was cutting firewood with his two young children. Plaintiff and his wife gave defendant the names of possible witnesses who might confirm that they had observed plaintiff leaving on October 23 to cut wood and returning home with wood.

Defendant obtained approval from the court to hire an investigator and to have plaintiff examined by a psychiatrist to determine if he was competent to aid and assist in his defense. Thereafter, however, defendant neither hired an investigator nor had a psychiatric evaluation performed. Defendant also made no attempt to interview any of the three victims.

On March 29, 1987, two days before trial, defendant told plaintiff that the state had a strong case and that he thought that plaintiff would be convicted. Defendant also told plaintiff that the polygraph results probably would be admissible at trial and would be very damaging to his case. Defendant did not tell plaintiff that the prosecutor had agreed that plaintiff's misdemeanor conviction for indecent exposure would not be used against him at trial. Defendant advised plaintiff that the judge likely would give him a lighter sentence if he pleaded no contest than if he were to be convicted after a jury trial. Defendant further told plaintiff that he must decide that day whether he wished to change his plea. In his deposition in this action, plaintiff testified that, although he had thought that he wanted a trial on the criminal charges, he decided to take defendant's advice. However, plaintiff never told defendant that he wanted a jury trial.

On March 31, 1986, plaintiff withdrew his plea of not guilty and entered a no-contest plea to the four counts against him. At the plea hearing, the judge asked plaintiff if he was satisfied with the help that his lawyer had given him. Plaintiff responded, "Yes, I am." In his deposition in this action plaintiff testified that, when he entered his no-contest plea, he was not satisfied with defendant's representation, because plaintiff knew that he was going to prison. He thought that defendant should have done something "besides just giving me years." He thought that some investigation would have proven his innocence, but he did not know what kind of investigation. He did not want to plead no contest, but he relied on defendant's advice.

On July 8, 1987, the trial court entered judgment of conviction and sentenced plaintiff to eight and one-half years in prison. Defendant's representation of plaintiff ceased on that day. Plaintiff began serving his sentence immediately. On April 22, 1988, another man confessed to the crimes. On April 27, 1988, the trial court vacated plaintiff's judgment of conviction. On May 21, 1988, plaintiff contacted a lawyer concerning his civil claim against defendant in this case.

On April 24, 1989, plaintiff filed this action against defendant for professional negligence. That date was more than two years after plaintiff had entered his no-contest plea, but within two years of his conviction and incarceration and less than one year after the judgment of conviction was set aside. Plaintiff alleged in his complaint that, if defendant had provided adequate representation, he would have been acquitted or all charges would have been dismissed. Plaintiff further alleged that defendant was negligent in (1) failing to seek suppression of the photographic identification, (2) failing to investigate, (3) failing to request a lineup, (4) failing to keep plaintiff informed, (5) failing to consult with or refer plaintiff to a more experienced lawyer, (6) advising plaintiff to plead no contest, (7) waiving a hearing in mitigation at sentencing, and (8) failing to have plaintiff examined by a psychiatrist. Defendant's answer denied the allegations of negligence and, as an affirmative defense, pleaded that the statute of limitations had run.

Defendant moved for summary judgment on his affirmative defense. The trial court granted defendant's motion. Plaintiff appealed. The Court of Appeals reversed and remanded, holding that there existed a genuine issue of material fact regarding when plaintiff's claim had accrued and, therefore, that summary judgment was not appropriate. Stevens v. Bispham, supra, 108 Or.App. at 594, 816 P.2d 700.

A claim for professional negligence in the form of legal malpractice must be commenced within two years of the date on which the claim accrues. ORS 12.010; ORS 12.110(1); U.S. Nat'l Bank v. Davies, 274 Or. 663, 665-66, 548 P.2d 966 (1976). With respect to legal malpractice claims, Oregon follows the "discovery" rule for establishing when a claim accrues. Id., 274 Or. at 666, 548 P.2d 966; see Stephens v....

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