Fante v. Stepek

R. D. Gotham, J.

This case involves the interplay between several sections of our statutes regarding limitation of actions in the context of a legal malpractice claim filed against defense counsel in a criminal case. Plaintiff appeals as of right from an order of the *321circuit court granting summary disposition to defendant. We affirm.

I

In early 1977, plaintiff was charged with armed robbery, breaking and entering, and two counts of first-degree criminal sexual conduct. Defendant was appointed to represent him. Before trial, the prosecutor offered a plea agreement to plaintiff. Under the agreement, the trial court would impose a maximum sentence not to exceed ten years in exchange for plaintiffs guilty plea with regard to one of the life offenses. Defendant advised plaintiff that if he did not accept the plea, the prosecutor would seek imposition of a life term in prison. Plaintiff rejected the plea offer and was convicted as charged at trial. On October 7, 1977, plaintiff was sentenced to life in prison. The sentencing hearing was defendant’s last day of service to plaintiff.

This suit is based upon plaintiff’s allegation that during the discussion of whether plaintiff should accept the plea bargain, defendant stated that regardless of whether he was sentenced to life, plaintiff would be eligible for parole in seven years and, at worst, he would serve no more than ten to twelve years. On July 17, 1984, plaintiff appeared before the parole board and learned, according to his claim, that parole was unlikely.

On March 28, 1994, plaintiff filed this lawsuit, approximately I6V2 years after defendant’s last service to him, and nearly ten years after he allegedly learned defendant’s advice was faulty.

In reviewing a motion for summary disposition under MCR 2.116(C)(7), this Court accepts plaintiff’s *322well-pleaded allegations as true and construes them in plaintiffs favor. Huron Tool & Engineering Co v Precision Consulting Services, Inc, 209 Mich App 365, 376-377; 532 NW2d 541 (1995).

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The general period of limitation for a legal malpractice cause of action is two years from the date the claim accrues. MCL 600.5805(4); MSA 27A.5805(4). However, another statute, MCL 600.5838(2); MSA 27A. 5838(2), provides that an action may be commenced within six months after the plaintiff discovers or should have discovered the existence of the claim if such discovery occurs after the two-year limitation period.

A legal malpractice claim accrues on the last day of the attorney’s service to the client, which in this case was the date of sentencing, October 7, 1977. MCL 600.5838(1); MSA 27A.5838(1). Gebhardt v O’Rourke, 444 Mich 535, 539; 510 NW2d 900 (1994).

Obviously, in this case plaintiff did not file suit within two years of his 1977 sentencing, nor within six months of his 1984 parole board hearing. Still, he claims that he was under a legal disability that tolled the running of the period of limitation.

Regarding plaintiff’s claim of disability from the date his malpractice claim accrued, the last day of his attorney’s representation in 1977, the matter is conclusively decided by a panel of this Court in Mino v McCarthy, 209 Mich App 302; 530 NW2d 779 (1995). Like the criminal defendant in the Mino case, plaintiff here was not incarcerated in prison, but was in a county jail at the time of sentencing. The Mino case *323held that the disability of imprisonment formerly1 provided by MCL 600.5851; MSA 27A.5851 was applicable only if the claimant was actually incarcerated in a state prison, not a county jail, at the time the claim accrued. Therefore, in this regard, the trial court did not err in granting summary disposition to defendant.

It may be argued that defendant’s status of being in prison when the claim was discovered should constitute a disability that would prevent the running of the six-month period following discovery of the claim in which to file suit. We believe, however, that such an argument ignores the explicit language of the statutes.

Subsection 3 of the former § 5851 stated in pertinent part:

To be deemed a disability . . . imprisonment must exist at the time the claim accrues. If the disability comes into existence after the claim has accrued, the disability shall not be recognized under this section for the purpose of modifying the period of limitations. [MCL 600.5851(3); MSA 27A.5851(3).[

The Legislature apparently found it appropriate to reinforce in the second sentence the point made in the first sentence of subsection 3: imprisonment shall not be deemed, considered, or recognized as a disability if the imprisonment comes into existence after the time the claim accrues. Accrual of the claim therefore has great legal significance.

The Legislature was equally definitive in establishing the time of accrual of a malpractice claim, and distinguishing it from the time of discovery of such a *324claim, in § 5838. Our Supreme Court has acknowledged this specific intent of the legislation in Gebhardt, supra at 543:

Clearly, the Legislature voiced its intent when it amended § 5838 in 1975, adding the words “regardless of the time the plaintiff discovers or otherwise has knowledge of the claim” v to the end of the first part of the section. The Legislature intended that the last day of service be the sole basis for determination of accrual. [Emphasis supplied.]

The Legislature has clearly set forth the time of accrual of a claim and has explicitly stated that imprisonment occurring thereafter shall not be deemed a disability. We must give effect to the plain meaning of the statutory language “regardless of the time the plaintiff discovers or otherwise has knowledge of the claim.” This is in accord not only with time-honored policies of statutory interpretation, but also with policies underlying the statute of limitations. See id. at 546.

Because the period of limitation has long ago run its course in this case, the trial court properly granted defendant’s motion for summary disposition.

Affirmed.

Sawyer, P.J., concurred.

The Legislature, in 1993 PA 283, eliminated imprisonment as a disability altogether, but the former language of § 5851 is applicable to this case.