Tingley v. Harrison

Decision Date06 January 1994
Docket NumberNo. 19964,19964
Citation867 P.2d 960,125 Idaho 86
PartiesJohn O. TINGLEY, Plaintiff-Appellant, and Mary Kamer, Plaintiff, v. Terry E. HARRISON and Jane Doe Harrison, husband and wife, Defendants-Respondents, and Steven L. Herndon and Jane Doe Herndon, husband and wife, Defendants.
CourtIdaho Supreme Court

Molodragovich, Dale & Dye, Missoula, MT, and Danny J. Radakovich, Lewiston, for plaintiff-appellant. John R. Binney, argued.

Quane, Smith, Howard & Hull, Coeur d'Alene, for defendants-respondents. Susan K. Servick, argued.

CHAS F. McDEVITT, Chief Justice.

Appellant, John Tingley ("Tingley") appeals an order of the trial court granting motions by respondents, Terry Harrison ("Harrison") and Steven Herndon ("Herndon"), for summary judgment in a legal malpractice action. The trial court ruled as a matter of law that the statute of limitation barred the malpractice action. Tingley, who declared bankruptcy in April 1986, almost one year before the present action was filed, contends that the statute of limitation does not bar the action. Tingley asserts that the cause of action is part of the bankrupt estate, and thus subject to an alternative limitation period under the bankruptcy code that has not yet run. We affirm.

BACKGROUND

This case arises out of a personal injury suit filed by attorneys Harrison and Herndon on behalf of Tingley and his former wife Mary Kamer ("Kamer"). Tingley was injured while fighting a fire at Cedar Ridge Mill near Athol, Idaho, on July 31, 1979. Tingley and Kamer retained the services of Herndon to represent them in a suit against Cedar Ridge to recover damages for the injuries sustained. Herndon filed a complaint on their behalf on July 31, 1981. During the course of the suit, Harrison became associated as counsel for the Tingleys. On November 16, 1983, the complaint was dismissed based on Rule 41 of the Idaho Rules of Civil Procedure for failure to prosecute. Over two years later, in January or February 1986, Harrison informed Tingley that he thought Herndon had had the case dismissed. When asked during his deposition about the possible dismissal of the underlying action, Tingley replied that he was sure that the case had been dismissed at that time.

Shortly after learning of the dismissal of his personal injury action, Tingley filed a petition pursuant to Chapter 7 of the Bankruptcy Reform Act in the United States Bankruptcy Court for the District of Montana through attorney Jon R. Binney ("Binney"). Tingley listed the instant unresolved claim against Harrison and Herndon on Schedule B-2 as a contingent claim. On March 9, 1987, Tingley and Kamer filed the instant cause of action through their attorney Danny J. Radakovich ("Radakovich") against Harrison and Herndon, alleging that Harrison and Herndon committed professional malpractice and fraudulently concealed their foreknowledge that the underlying personal injury action was going to be dismissed pursuant to the Idaho Rules of Civil Procedure. On March 2, 1988, the district court granted a motion for association of foreign counsel, permitting Binney to serve as associate counsel with Radakovich. On August 15, 1988, the trustee in bankruptcy filed a Ratification Agreement authorizing Tingley to bring the suit in his own name "though the suit is property of the estate and subject to distribution pursuant to 11 U.S.C. § 726."

On November 1, 1988, Judge Magnuson denied respondents' motions for summary judgment filed in May and July of 1988. Judge Kosonen subsequently granted respondents' renewed motions for summary judgment, filed December 11, 1990, based on the running of the statute of limitation. Tingley appeals the trial court's order granting summary judgment to respondents.

ISSUES ON APPEAL

I. Whether the district court erred in ruling that the statute of limitation barred appellant Tingley from pursuing this cause of action.

II. Whether the district court erred in ruling that 11 U.S.C. § 108(a) extends the statute of limitation to a trustee only and in finding that the trustee failed to timely join this cause of action under 11 U.S.C. § 108(a) or to ratify the cause of action under I.R.C.P. 17(a).

STANDARD OF REVIEW

A motion for summary judgment "shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." I.R.C.P. 56(c). Upon a motion for summary judgment, both the district court and the Supreme Court upon review, must liberally construe all disputed facts in favor of the non-moving party. Bonz v. Sudweeks, 119 Idaho 539, 541, 808 P.2d 876, 878 (1991). All reasonable inferences that can be made from the record shall be made in favor of the party opposing the motion. Id. The burden of proving the absence of a material fact rests at all times upon the moving party. G & M Farms v. Funk Irr. Co., 119 Idaho 514, 517, 808 P.2d 851, 854 (1991). However, the opposing party's case must not rest on mere speculation. A mere scintilla of evidence is not enough to create a genuine issue of fact. Id. The opposing party's case must "set forth the facts with particularity; for if general averments were sufficient the summary judgment procedure would lose its utility. The requirement of specificity is underscored in cases where the moving defendant has established, prima facie, a defense grounded on the statute of limitations." Theriault v. A.H. Robins Co., 108 Idaho 303, 306, 698 P.2d 365, 368 (1985) (quoting Johnson v. Gorton, 94 Idaho 595, 598, 495 P.2d 1, 4 (1972)).

ANALYSIS
I. THE TRIAL COURT DID NOT ERR IN GRANTING SUMMARY JUDGMENT BASED ON THE RUNNING OF THE STATUTE OF LIMITATION

Idaho Code § 5-219(4) provides a two-year statute of limitation for professional malpractice causes of action. It also provides that the cause of action accrues at the time of the occurrence, act, or omission complained of. Idaho case law extends the time of accrual to the date when the plaintiff is damaged where the negligence is continuing. Griggs v. Nash, 116 Idaho 228, 232, 775 P.2d 120, 124-25 (1989). Tingley asserts that there is a question of fact concerning the accrual date of the malpractice cause of action that precludes summary judgment in this case. He contends that evidence showing that he did not know that the underlying personal injury action had been dismissed until April of 1986, creates a genuine issue as to the exact date this cause of action accrued. We disagree. The Griggs court acknowledged that this Court has interpreted I.C. § 5-219(4) to require "some damage" before the action accrues and the limitation period begins to run. Id. See also Chicoine v. Bignall, 122 Idaho 482, 483-84, 835 P.2d 1293, 1294-95 (1992); Bonz v. Sudweeks, 119 Idaho 539, 542, 808 P.2d 876, 878 (1991). However, this Court has not interpreted I.C. § 5-219(4) to require that the plaintiff has discovered the damage as Tingley contends. Martin v. Clements, 98 Idaho 906, 575 P.2d 885 (1978). In Martin, plaintiffs brought a cause of action against an attorney, seeking damages resulting from alleged legal malpractice in the probate of their father's estate. In deciding when the cause of action accrued for purposes of applying I.C. § 5-219(4), this Court refused to infuse the I.C. § 5-219(4) limitation period with a "discovery" exception. Martin, 98 Idaho at 910, 575 P.2d at 889. See also Theriault v. A.H. Robins Co., 108 Idaho 303, 308, 698 P.2d 365, 370 (1985).

Where there is no dispute as to any issue of material fact regarding when the cause of action accrues, the question is one of law for determination by the court. Reis v. Cox, 104 Idaho 434, 438, 660 P.2d 46, 50 (1982). In this case, as a matter of law, the latest possible date that Tingley's malpractice cause of action accrued under I.C. § 5-219(4) is November 16, 1983, the date the underlying personal injury action was dismissed. It was only on that date, following either a far removed antecedent negligent act or the continuing negligence of respondents, that Tingley was damaged. See Bonz, 119 Idaho at 543, 808 P.2d at 879 (determination of what constitutes "damage" must be decided on circumstances presented in individual case). The I.C. § 5-219(4) limitation period applicable to this malpractice action expired November 16, 1985, and, consequently, bars Tingley's complaint, which he did not file until March 1987.

Tingley's claim for relief is barred even under the extended grace period allowed under I.C. § 5-219(4) for cases where the defendant has fraudulently and knowingly concealed the fact of damage from the injured party. As noted above, this Court has refused to engraft I.C. § 5-219(4) with a discovery rule. However, the statute itself provides a discovery rule when a plaintiff alleges fraudulent concealment of the malpractice. The statute makes clear that when professional malpractice involves fraudulent or intentional concealment of the wrongdoing, even when the initial wrongdoing is merely negligent, the statute of limitation contained in I.C. § 5-219(4) is tolled until the injured party "knows or in the exercise of reasonable care should have been put on inquiry regarding the ... matter complained of." After that date, the statute of limitation period is one year, after which an action for professional malpractice is barred. McCoy v. Lyons, 120 Idaho 765, 772, 820 P.2d 360, 367 (1991).

Tingley sufficiently alleges fraudulent concealment to warrant the application of this limited discovery exception. See Theriault v. A.H. Robins Co., 108 Idaho 303, 306, 698 P.2d 365, 369 (1985) (party alleging fraud must state circumstances constituting fraud with particularity). See also Johnson v. Gorton, 94 Idaho 595, 598, 495 P.2d 1, 4 (1972). However, it is indisputable, based on Tingley's affidavit and deposition, that Tingley knew or was placed on inquiry of the...

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