Glaze v. Larsen

PELANDER, Judge,

specially concurring in the result.

¶ 18 I respectfully concur in the result only because Amfac I and Amfac II, which Larsen fails to squarely address, appear to constrain me to do so. In Amfac I, Division One of this court held that “a cause of action for legal malpractice occurring in the course of litigation accrues when the plaintiff knew or should reasonably have known of the malpractice and when the plaintiffs damages are certain and not contingent upon the outcome of an appeal.” 138 Ariz. at 156, 673 P.2d at 796. The court further concluded that, when “there has been no final adjudication of the client’s case in which the malpractice allegedly occurred, the element of injury or damage remains speculative and remote, thereby making premature the cause of action for professional negligence.” Id. And, as noted in ¶ 6, supra, the court in Amfac I also stated: “Generally, it is only when the litigation is terminated and the client’s rights are ‘fixed’ that it can safely be said that the lawyer’s misdeeds resulted in injury to the client.” 138 Ariz. at 157, 673 P.2d at 797.

¶ 19 In Amfac II, our supreme court expressly “agree[d] with and approve[d] the opinion of the Court of Appeals” in Amfac I. 138 Ariz. at 153, 673 P.2d at 793. Although the court noted that “the plaintiff[] must have sustained some injury or damaging effect from the [attorney] malpractice” in order for the cause of action to accrue for statute of limitations purposes, id. (emphasis added), it then stated that “the injury or damaging effect on the unsuccessful party is not ascertainable until the appellate process is completed or is waived by a failure to appeal.” Id. at 154, 673 P.2d at 794. And the court rejected the notion that “an unsuccessful party’s damages are certain, fixed, or irreversible” absent a “‘final adjudication of the client’s case in which the malpractice allegedly occurred.”’ Id. at 154 n. 2, 673 P.2d at 794 n. 2, quoting Amfac I, 138 Ariz. at 156, 673 P.2d at 796.4

¶ 20 In Amfac I and II, the underlying litigation in which the attorney malpractice allegedly occurred was a civil action, whereas the underlying case here was a criminal proceeding. See Taylor v. State Farm Mut. Auto. Ins. Co., 185 Ariz. 174, 178, 913 P.2d 1092, 1096 (1996) (“In Amfac, we considered the accrual date for a cause of action for legal malpractice that occurred during the course of civil litigation.”) (emphasis added). It is not readily apparent, however, that such a distinction is either dispositive or even relevant to the analysis and resolution of the statute of limitations issue here. Indeed, Larsen does not attempt to distinguish Amfac I and II on that or any other basis. Accordingly, this court, of course, is bound by and must follow Amfac I and II. See McKay v. Industrial Comm’n, 103 Ariz. 191, 438 P.2d 757 (1968); Myers v. Reeb, 190 Ariz. 341, 342, 947 P.2d 915, 916 (App.1997).

¶ 21 The dissent seeks to avoid the effect of Amfac I and II by characterizing an underlying criminal case and a post-conviction *405proceeding pursuant to Rule 32 as “distinct,” implicitly viewing them as entirely different cases. See ¶ 33, infra. But a post-conviction proceeding pursuant to Rule 32 “is part of the original criminal action and not a separate action.” Ariz. R.Crim. P. 32.3, 17 A.R.S.; see also Moreno v. Gonzalez, 192 Ariz. 131, ¶ 16, 962 P.2d 205, ¶ 16 (1998). Moreover, convicted defendants must file any notice of and petition for post-conviction relief “with the court in which the conviction occurred,” and “[t]he notice shall bear the caption of the original criminal action or actions to which it pertains.” Ariz. R.Crim. P. 32.4(a). For that reason, the superior court case number for Glaze’s underlying criminal case and his subsequent Rule 32 proceeding was identical.

¶22 I also note that Rule 32 is the only procedural mechanism available to convicted defendants who have entered into a plea agreement or who wish to present certain claims for relief in the trial court and, if relief is denied, to seek appellate review of such claims. See A.R.S. § 13-4033(B); Ariz. R.Crim. P. 17.1(e), 16A A.R.S.; Montgomery v. Sheldon, 181 Ariz. 256, 258, 889 P.2d 614, 616 (1995). For example, if a defendant seeks relief from a conviction or sentence based on grounds of ineffectiveness of counsel; evidence discovered only after expiration of the time for filing a motion to vacate judgment under Rule 24.2(a), Ariz. R.Crim. P., 17 A.R.S.; or a significant change in the law, he or she must do so through Rule 32 proceedings. See Ariz. R.Crim. P. 32.1(a), (e), (g); see also State v. Spreitz, 202 Ariz. 1, 39 P.3d 525 (2002). Thus, Rule 32 proceedings are not only directly related to, but are also part of, the underlying criminal case and, indeed, are ancillary to direct appellate review.

¶ 23 In civil litigation, a motion for relief from judgment pursuant to Rule 60(c), Ariz. R. Civ. P., 16 A.R.S., Pt. 2, is analogous to a Rule 32 petition for post-conviction relief in a criminal case. Despite the entry of final judgment in a civil case, the case would not be considered to be over or final while a timely filed motion for relief from judgment under Rule 60(c) is still pending. Similarly, in my view, the dissent incorrectly states that “a criminal case terminates at the conclusion of the appeal process,” notwithstanding the pendency of a Rule 32 proceeding. See ¶ 34, infra.

¶24 Although I agree with much of the dissent’s reasoning and actually prefer its approach, the current state of the law apparently precludes it. I write separately only to express my concerns with adopting the “bright-line rule” apparently established in Amfac I and II for legal malpractice that occurs during civil litigation and now embracing it for attorney malpractice actions arising from criminal litigation. See ¶ 12, supra. In my view, such a rule in this context not only deviates from Arizona’s traditional discovery rule jurisprudence, but also undermines two fundamental principles on which the statute of limitations defense is based: timely notice to the defendant and avoidance of stale claims. That is particularly so when the alleged attorney malpractice occurs in criminal proceedings, final resolution of which may take many years. See Coscia v. McKenna & Cuneo, 25 Cal.4th 1194, 108 Cal.Rptr.2d 471, 25 P.3d 670, 680 (2001) (noting as “particular concern” in this context that “years, even decades, may elapse before the wrongfully convicted criminal defendant obtains postconviction relief’); see also Silvers, 682 N.E.2d at 817-18.

¶ 25 As this court recently stated:

The limitations period under § 12-542 “begins to run upon accrual,” Doe v. Roe, 191 Ariz. 313, ¶ 40, 955 P.2d 951, ¶ 40 (1998), which requires not only an alleged “wrong” but also injury. Id. at ¶ 32, 955 P.2d at ¶ 32. See also Myers v. Wood, 174 Ariz. 434, 435, 850 P.2d 672, 673 (App.1992). “In other words, ‘the limitations period does not commence until [an] actionable [wrong] exists, that is, [a tort] that results in appreciable, non-speculative harm to the [plaintiff].’” CDT, [Inc. v. Addison, Roberts & Ludwig, C.P.A., P.C.,] 198 Ariz. 173, ¶ 7, 7 P.3d 979, ¶ 7 [ (App.2000) ], quoting Commercial Union Ins. Co. v. Lewis and Roca, 183 Ariz. 250, 254, 902 P.2d 1354, 1358 (App.1995). In addition, under the common law “discovery rule,” “a cause of action does not accrue until the plaintiff knows or with reasonable diligence should *406know the facts underlying the cause.” Doe, 191 Ariz. 313, ¶ 29, 955 P.2d 951, ¶ 29.

Manterola, 200 Ariz. 572, ¶ 10, 30 P.3d 639, ¶ 10 (first four alterations in original); see also Walk v. Ring, 202 Ariz. 310, ¶¶ 14-26, 44 P.3d 990, ¶¶ 14-26 (2002); Montaño v. Browning, 202 Ariz. 544, ¶ 10, 48 P.3d 494, ¶ 10 (App.2002).

¶ 26 Glaze filed his petition for post-conviction relief in April 1997, alleging that Larsen had been ineffective at trial. Therefore, at that point, Glaze apparently “knew or should have known facts that would have put a reasonable person on notice to investigate whether [any] injury [he had sustained] had been wrongfully inflicted.” Walk, 202 Ariz. 310, ¶ 43, 44 P.3d 990, ¶ 43. In this court’s September 1998 order, we recognized Glaze’s ineffective assistance of counsel claim as col-orable, therefore entitling Glaze to an eviden-tiary hearing. Based on those facts, Glaze properly conceded at oral argument in this court that his filing this action in December 2000 had occurred more than two years after he had actual, not merely constructive, knowledge of Larsen’s alleged wrongdoing, that is, “that a wrong might have occurred.” Id. at ¶ 25, 44 P.3d 990; see also Coscia, 108 Cal.Rptr.2d.471, 25 P.3d at 679 (“The wrongful act or omission giving rise to a criminal malpractice action necessarily occurred during the course of the attorney’s representation of the client — not at some time thereafter, when the client obtained postconviction relief.”). Thus, the determinative issue here should be whether Glaze knew or should have known, more than two years before he filed this action, that he had “sustained some injury or damaging effect from [Larsen’s] malpractice.” Amfac II, 138 Ariz. at 153, 673 P.2d at 793.

¶ 27 Contrary to the apparent implication of Amfac I and II and contrary to the principal decision’s conclusion, resolution of that issue should not necessarily hinge on final disposition of the malpractice plaintiffs underlying criminal ease. After being convicted in November 1995 of sexual abuse, Glaze was placed on probation for one year in February 1996. This court then affirmed the conviction and probationary term in January 1997, apparently with no farther appellate relief having been sought or obtained. In my view, those events clearly establish Glaze’s actual knowledge that he had sustained “ ‘appreciable, non-speculative harm’ ” as a result of Larsen’s alleged malpractice. CDT, 198 Ariz. 173, ¶ 7, 7 P.3d 979, ¶ 7, quoting Commercial Union, 183 Ariz. at 254, 902 P.2d at 1358. As the California Supreme Court recently noted in Coscia:

[W]e decline to adopt the legal fiction that an innocent person convicted of a crime suffered no actual injury until he or she was exonerated through postconviction relief. As the Court of Appeal herein observed, “a criminal conviction — with its attendant financial and social ramifications, incarceration, probation, fines or other damaging consequences — would constitute appreciable harm, or ‘actual injury’ ” within the meaning of [the applicable California statute of limitations].

108 Cal.Rptr.2d 471, 25 P.3d at 680, quoting Coscia v. McKenna & Cuneo, L.L.P., 95 Cal. Rptr.2d 368, 374 (2000).

¶28 After recognizing the different approaches courts have taken in this area, the court in Coscia rejected the “bright-line rule” that would automatically delay accrual of the cause of action in cases such as this until final resolution of the malpractice claimant’s underlying criminal proceedings.5 Rather, the court adopted a “two-track approach,” whereby the attorney malpractice action accrues when the claimant has actual or constructive knowledge of wrongdoing and damage, but the trial court may then “stay the malpractice action during the period in which such a plaintiff timely and diligently pursues postconviction remedies.” Coscia, 108 Cal. Rptr.2d 471, 25 P.3d at 680.6 That approach, *407the California court concluded, “is most consistent with ... the interests of fairness to both plaintiffs and defendants in criminal malpractice actions,” in that “courts can ensure that the plaintiffs claim will not be barred prematurely by the statute of limitations” but “at the same time will protect the interest of defendants in attorney malpractice actions in receiving timely notice and avoiding stale claims.” Id. Were it not for the controlling precedent in Amfac I and II, I would subscribe to that approach.

. Our supreme court has not retreated from, but rather, has embraced, the reasoning and result in Amfac II. See Taylor v. State Farm Mut. Auto. Ins. Co., 185 Ariz. 174, 179, 913 P.2d 1092, 1097 (1996) (holding, pursuant to "final judgment accrual rule,” that “a third-party bad faith refusal to settle claim does not accrue until such time as the underlying judgment against the insured becomes final or non-appealable”).

. I note that the manner in which Glaze’s underlying criminal case was dismissed with prejudice does not equate to his exoneration. In addition, any concern about preserving the attorney-client relationship is not a factor here, see ¶ 13, supra, inasmuch as Glaze had new counsel after seeking post-conviction relief based on Larsen’s alleged ineffectiveness at trial.

. In addition to the Indiana and Michigan cases that the principal decision discusses, see ¶¶ 8-11, supra, several other courts have rejected the "bright-line rule” that would indefinitely delay *407accrual of causes of action such as this until the defendant’s ultimate exoneration or final resolution of his or her criminal proceedings. See, e.g., Berringer v. Steele, 133 Md.App. 442, 758 A.2d 574, 604 (2000); Seevers v. Potter, 248 Neb. 621, 537 N.W.2d 505, 510-11 (1995); Duncan v. Campbell, 123 N.M. 181, 936 P.2d 863, 867-69 (1997); Bailey v. Tucker, 533 Pa. 237, 621 A.2d 108, 115 n. 3 (1993).