Beesley v. Van Doren
873 P.2d 1280
Alaska
1994
Check Treatment

*1 calendar, thereby setting the inactive in mo-

tion a different dismissal was reversible

error. Ford,

Consistent we hold that with superior court’s deference to a district explicit with

court that conflicts Further, impermissible.

rule of court is require court’s observe the

district failure to impermissible

ments of that rule is and in

this ease constitutes reversible error. Rome given scheduling

ro was not a trial notice as 16(f), thus,

required by Civil Rule meaningful opportunity

denied a to be heard the merits of

him.

III. CONCLUSION judgment superior ‘deny- court

ing’ Romero’s is REVERSED. The

superior court is directed to enter

vacating court, of the district remanding to the district grant

with instructions to Romero a new trial 16(f). notice in with accordance Rule BEESLEY, Fish, Earle Eulas Elton Davis, Paul L. Law L. Offices of Paul Greene, Hill, New, Robert Robert Ver- Associates, Davis Anchorage, plaintiffs. Phillips, non Arthur Smith and James Smith, Plaintiffs, Chleborad, Mark Rindner and Terisia K. Lane, Powell, Spears, Lubersky, Anchorage, for defendant. DOREN, William O. VAN Defendant.

No. S-5374. C.J., MOORE, RABINOWITZ, Before Supreme COMPTON, Court Alaska. MATTHEWS and JJ. OPINION

May COMPTON, Justice. Appellate

Pursuant to Alaska Rule Pro- cedure the United' States District Court for the District of Alaska certified the follow- ing question to court: In practice action, is the statute of limitations tolled until final resolution claim? *2 against Muk- Beesley was forced to defend PROCEDURAL AND I. FACTUAL summary judgment, or luk’s motion for BACKGROUND the trial by August when the latest (collec- eight plaintiffs April In 1983 against Beesley. States ruled United court truck drivers Beesley) and other tively, Judge H. Russel Holland District Court (Mukluk) Lines, hired Inc. Freight Mukluk concluding v. agreed, that under Wettanen in a represent them Doren to Van William (Alaska 1988),the stat- Cowper, 749 P.2d 362 Beesley checks Mukluk sent wage dispute. began to run ute of limitations sign- indicating that accompanied letters court at the trial initial adverse constitute a cashing “shall the checks however, reconsideration, Judge level. On you now by you of all claims complete release was distin- Holland decided Wettanen allegedly Doren against Mukluk.” Van have Beesley had continued guishable because Beesley the cheeks to endorse advised underlying litiga- pursue merits of the account. Van court-supervised deposit into underly- litigation tion. Simultaneous complaint against Mukluk filed a Doren later case ing case and Crowley Maritime parent company, and its positions. Beesley to take inconsistent forced of the drivers. (Crowley), on behalf Corp. Judge question whether Holland certified re- Doren and dismissed Van The drivers malprac- in a In in December 1983. other counsel tained until tice case is tolled a mo- Crowley Mukluk filed March 1984 malpractice claim has been resolved. ing the summary judgment on the tion for granted This court the certificate. accord and satisfac- defense of affirmative motion in granted The trial tion. II. DISCUSSION appealed to this The case was August. law, to question us The issue before is court, deci- reversed the trial court’s independent judg- apply our which we will Lines, Freight Phillips v. Mukluk sion. law, “duty is to questions of our ment. On 1986). (Alaska held that there P.2d persuasive that most adopt the rule of law is faith Muk- evidence of bad was sufficient reason, policy.” light precedent, to defeat offer luk’s settlement (Alaska Ha, n. 6 Guin v. judgment. Id. at 1146. 1979). years litigated for four more case was held that the statute Wettanen in federal courts. While in state and federal begins to attorney malpractice limitations for court, Crowley filed and Mukluk defendants run when summary judgment based motion for another should the client discovers satisfaction, which was not accord and of all the discovered the existence finally Septem- ease settled granted. The Moreover, his cause of action. elements of ber 1990. attorney’s negli- if the client discovers stat- gence before he suffers present complaint filed the until begin to run limitations will ute of 1991. Bees- in federal court October case damages. client suffers actual sign Doren’s advice to ley alleges that Van gross negligence and amounted to the cheeks (citing P.2d at 364 Greater rights disregard for the of his a reckless Bookman, Area, P.2d 829 & Inc. Beesley asserts that Van clients. (Alaska 1982)); also Thomas see n. 3 (1) expense to the added time and (Alaska 1989) advice Cleary, (2) for far litigation, to settle in- plaintiffs “have (holding that because accord and satis- than if the defense of less [professional damages, no curred no (3) existed, and caused Bees- faction had not occurred.”). tice] has anxiety worry caus- “great ley to suffer court’s decision argues that this Doren Van distress, fear, unhappiness and ing emotional indistinguishable from is in Wettanen depression.” controlling. In and is present case un- settle the stipulated had responds that Doren knowledge derlying without the client’s began in March when to run 749 P.2d at 363. cessful is not or authorization. ascertainable pursuant completed its appellate process The court entered or is waived stipulation March client appeal.” a failure to Distribution Amfac moved to aside Miller, a new who set Corp. hired 138 Ariz. An judgment. The motion was denied. responds Van Doren that an *3 it appeal was because was not then dismissed “overwhelming majority of courts” hold that judgment. final Final was from a to a claim Id. client entered December 1985. The legal malpractice pending is not tolled day. Id. filed a action the same the underlying litigation.1 resolution of two-year Applying of at 364. statute reject appeals” the “exhaustion of we held that the client’s rule. Wettanen holds that a of limi statute of because he “knew his cause of was barred begins running tations when a suffers attorney] [his and suffered regard actual without to whether years damages more than two actual before damages full of extent is known at this case was filed.” Id. at 365. A client the time.2 749 P.2d at 365. damages of need not suffer all attorney’s malpractice her his or before the alternative, Beesley In argues begins of limitations to Id. run. inapplicable Wettanen is because the case did guiding principle is that the statute of “[T]he not address the situation where the limitations commences to run when one ing litigation discovery continued after the of actually alleged damaged as a result of the attorney malpractice. The client in Wetta- malpractice, of and the commencement did appeal judgment. nen not from the final put the statute will not be off until learns one Therefore, this court did not have occasion to damages.” the full extent of his Id. in which consider the situation practice plaintiff might argues that fol- take inconsis- this court should jurisdictions positions adopt separate proceedings. tent low the lead of some and because, appeals” an of rule contends that this “exhaustion situation Court, Supreme compromise the words of the Arizona his chances success both injury damaging “the or effect on unsuc- matters.3 Sims, 349, begins running point 1. See Rhoades v. 286 692 Ark. S.W.2d riod at the earliest there is Blacker, 750, (1985); 606, Bittman, knowledge injury. v. 2 752 Laird Cal.4th v. Hunt 482 550, 555, 691, 1017, Cal.Rptr.2d F.Supp. (D.D.C.1980), 7 828 P.2d 696 cert. 1021-22 n. 22 & denied,-U.S.-,-, (D.C.Cir.), aff'd, 113 S.Ct. 658- 652 196 F.2d 454 59, (1992); 860, Taylor, 315, (1981), 121 L.Ed.2d 584 Jankowski v. S.Ct. U.S. 102 70 L.Ed.2d 158 Lee, 16, 804, Bishop & 246 Ga. 273 S.E.2d 18 cited 749 P.2d at 365. Califor- The Emmerman, (1980); Supreme Ill.App.3d recently Belden v. 203 nia Court has held "the 265, 583, 586, 1180, Ill.Dec. 148 560 N.E.2d statute of limitations for ac- Sullivan, (1990); Basinger entry v. 1183 540 N.E.2d tions commences adverse 91, Laird, (Ind.App.1989); 94 Dearborn Animal Clinic or final order P.2d at dismissal." 828 Wilson, 257, 997, First, P.A. v. 248 Kan. 806 P.2d 1006 the court noted that the client sus- (1991); Co., England injury Brand New v. Ins. 576 tains soon as as he she is forced to 466, Green, (La.1991); Second, Hayden pursuing So.2d appeal. 469-70 v. costs incur 878, (1988); 431 Mich. N.W.2d necessarily 429 604 Sabes & successful "does not exoner- Richman, Muenzer, 916, attorney, 918- extinguish 431 N.W.2d ate the nor it (Minn.App.1988); Shafton, negligence 19 Dixon v. 649 client’s action him for in the 435, Holthaus, (Mo.1983); S.W.2d 438 v. conduct of trial." Id. A recent Alaska Suzuki 72, 126, (1985); supports point. Hughes, 221 Neb. 375 N.W.2d 128 Zim latter In Doe v. Griswold, Gantz, Thorsness, Brundin, Calfee, mie v. Halter & 43 Ohio St.3d Powell & 54, 398, (1989); (Alaska 1992), although 538 N.E.2d 402 Chambers 804 this court noted that Dillow, 896, (Tenn.1986); adoption upheld ap- 713 S.W.2d Rich- the clients' was decree Denend, 92, Wash.App. challenge peal, “costly ardson v. to it a affair." Id. (1990); Hoerl, 1195 n. 7 Hennekens v. Wis.2d 465 N.W.2d Marwick, Peat, Lane, 3.See & Mitchel Co. v. (Fla.1990); possible tolling benefits of a statute of So.2d United States Nat’l Davies, appeals Higgens limitations until the exhaustion do not Bank 274 Or. (1976); justify departure Hughes Mahaney, from the common law rule 821 S.W.2d (Tex.1991). negligence pe cases. adopt prob- here and decline did consider the to Wettanen forcing to assert inconsis- rule.4 lem of client “exhaustion The statute positions tent begins running when a client dis- in this case. We do do so tice cases. We covers or should discovered Beesley’s are action, all the elements cause malpractice cases in- underlying and damages. Proper application suffers actual question whether de- consistent. The provide will ade- of this rule client with existed is fense of accord satisfaction quate opportunity to commence cause of question different from whether action within the statute limitations. possibility actions created Therefore, unnecessary adopt it we find Beesley ultimately Even if such defense. tolls the statute of limitations defense, Beesley has a still overcame the appeals of a all client’s exhausted. *4 Doren, against Van whose cause of action by extending length him the damaged actions III.' CONCLUSION Furthermore, expense litigation. of the hold that the statute limitations We seemingly often with inconsistent courts deal is attorney malpractice in cases not tolled positions. argument An that defense of the pending the final of the resolution exist, not and if it accord and satisfaction did underlying the action. Under did, responsible for its that the was Wettanen, began to creation, legal certainly in are- is tenable the Beesley’s malpractice run claim when na. damages. Beesley actual It is not suffered arguments Beesley’s Both would necessary damages all suffered that us Under the require to overrule Wettanen. begins before the statute to be ascertainable decisis, stare this court will overrule rule of run. precedent only ‘clearly the court is “where originally rule errone convinced that the was J., RABINOWITZ, dissents. changed no longer or is sound because of ous conditions, good harm that more than BURKE, J., participating. prece departure a from would result from Souter, RABINOWITZ, Justice, dissenting. 606 P.2d dent.’” State (Alaska 1980) Moore, (quoting IB J. Moore’s majority’s holding I from the that dissent ¶ (1974)) 0.402 at 164-55 Federal Practice “is the of limitations statute (other omitted), overruled other citations appeals all been tolled until have exhausted.” by Dunlop, grounds 721 P.2d 604 State party majority that “[i]f concedes (Alaska 1986); Dunlop, P.2d see at posi- truly was forced to take inconsistent case, we to disturb 620. this choose not harm result good than would tions and ‘more rule because we the might be in- departure,’ then we [the] from either conditions or that (Alteration to re-examine Wettanen.” parties’ clined balancing the favors interests (citation omitted).1 Here overruling Accordingly, original) we ad- Wettanen. rejected the party truly "exhaustion 4. forced to take inconsistent which If a was 798-99; good Neylan Amfac, than re- and “more harm 673 P.2d at rule. See Souter, (Iowa 1987). departure,” Moser, 606 P.2d at [the] from sult 400 N.W.2d omitted), (citation then be inclined to this difficult situation. to tailor Wettanen Note, precise question certified to this court Likewise, Beesley retained a different because by federal court: judg- before motion which the action in In a filed, we are not asked to ment him attorney’s negligent plaintiff claims adoption repre- consider the of the "continuous prior representation plaintiff in a Under that sentation” rule. of a new defense for resulted the creation repre- long as as the client is limitations is tolled case, prior plain- and that the defendant attorney who same committed the sented could not initiate an tiff opined alleged malpractice. that we We attorney prior to final resolution of might adopt rule. require plaintiff to to do so would case because would resolve the concern Such attorney-client relationship rule directly position would be [sic] raised some courts asset Third, “truly posi- early was forced take inconsistent Van Doren had actual notice on, I tions” and thus am led to the conclusion as did errors and his omissions insurance carrier, particular alleged his circumstances this representing Beesley against was tolled until case the statute Mukluk and Beesley’s Crowley.3 Depositions appeal of the action was taken and were finally opportunity perpetuate Doren had the resolved. tes- timony.

First, position has taken Fourth, although although agree applica- the defense of the statute of limita- that the one, generally legitimate tions is a it ble disfa- statute of limitations commences when a Assocs., vored. Lee Houston & Ltd. v. Ra- discovers or should have cine, (Alaska 1991); discovered his her cause Daniels, (Alaska Jenkins v. suffers actual here 1988). have also that “[w]here observed limitations should be tolled for the reasons two period by Beesley briefing constructions as to the limitations advanced to this possible, prefer particularly compelling courts the one which court. I find Bees- gives longer period prosecute ley’s raised, briefed, argument or ad- —not the action.” Co. majority’s Ins. Am. v. dressed in Wettanen —that Safeco (Alaska 1981). Honeywell, 639 P.2d him would force to assert inconsistent *5 underlying litigation against in the Second, jurisprudence de-empha- our has Crowley Mukluk and and in the policies sup- sized the traditional advanced in against action Doren. Van port namely, of statutes of fair- regard disagree majority’s with the state- (notice), ness to the defendant concern that persuaded ment that are not “[w]e that Bees- time, witness memories will fade over avoid- ley’s positions in and unavailability, ance of witness and the avoid- tice eases are inconsistent.” general. Adoption ance of loss of evidence in discovery of example, action, for litigating under- While of policies mined most these since some disclaimed the existence of an accord injuries claimants do discover Beesley brought their and Had satisfaction. a le many years after applicable period gal against of Van Doren time, limitations.2 during this he would taken the materially plaintiff's against adverse to claims He also admits that in of March 1984 Davis case, prior plain- defendant in the when explanation demanding wrote Van Doren an of right tiff's checks, accrue why he cash advised truckers to purposes commencing applicable your stating "that determination cash the period of limitation? greatly imperiled checks has the drivers [sic] compensation chance to seek the correct Racine, 2. Under and Pedersen v. they owed Mukluk.” In this same com- (Alaska 1993), Flannery, 863 P.2d "notify munication Davis advised Van Doren to years. limitations is six [his] errors and omissions [the] carrier situation Here filed his added). immediately...." (Emphasis year Van Doren within one after the Van Doren concedes that expiration six-year period, as- 8, 1984, [o]n October Davis wrote to Van suming tolling no occurred. attorney, George Hayes, Doren’s that "[i]t is belief, upon our the statements that were 3. Van Doren concedes as He much. acknowl- deposition, edges made Mr. Van Doren in his that in December Van Doren's re- (now Davis, along placement, with those statements made Paul wrote Van Doren the clients, my) engaged following: Mr. Van Doren in an act when he advised the clients and recently I have reviewed the enclosed state checks to be case, Lines, their cashed.” Davis re- Supreme Court Atlas Van Inc. v. quested Buster, al, filing and financial assistance in Op. Jack et No. 276—December bonds, appeal meeting appeal pre- costs and believe and that an accord and satisfac- paring necessary briefs. Davis concluded negotiations tion based of the checks negligence, "But Mr. Doren’s the Sum- combination with the that were letters writ- your, my, may mary Judgment legiti- Motion ten to now raise a have been clients granted, making appeal unnecessary." mate issue accord and satisfaction that we (Citations omitted) (alteration going original). to have to deal with. presentation of the “ex al a clear adversarial position that Van inconsistent doctrine, any adver haustion of gave rise to an accord leged negligence posi inconsistent presentation of the sarial satisfaction. rationale. Justice Souter has remarked tions Fifth, I am subject to precedent that “was not that a holding that overruled to reach must be prior announce argument’ ‘full-dress to its when the limitations is tolled than ... is entitled to less deference ment underlying ac- in the appealing claimant briefing argu on full one addressed tion, required to consequence is and as a Aye, the Lukumi Babalu ment.” Church of positions in the inconsistent advance — Hialeah, U.S.-, City action. in the (1993) 2217, 2247, 124 L.Ed.2d 472 S.Ct. arguments raised in previously the As noted (Souter, J., concurring concurring part not raised Beesley’s instant were recognizes judgment). principle This Further, if even Wet- appeal. the Wettanen decisionmaking judicial re that “[s]ound overruled, govern- under the tanen must be vigorous prosecution and a quires ‘both a decisis, I conclude that ing principles of stare dispute.” vigorous defense’ of the issues to modification of persuasive is no bar there fashioning a purpose Wettanen for tolling exception. State, Sixth, Depart I note that Shaw Administration, ment Public one of our decisions will overrule Defender (Alaska 1991), Agency, 816 P.2d 1358 only when we are “ after undercuts Wet- was decided origi- ‘clearly that the rule was convinced n reliance on Hunt v. Bittman, 482 tanen longer sound be- nally or is no erroneous (D.D.C.1980), aff'd, 652 F.2d F.Supp. 1017 conditions, more and that cause of (D.C.Cir.), 860, 102 454 U.S. depar- from a good than harm would result ” Despite all 70 L.Ed.2d 158 S.Ct. precedent’.... A decision ture from *6 support in the traditional rationales advanced if prove originally erroneous the rule to be limitations, we held Shaw of statutes proves announced to be unworkable malpractice arising out in a that Additionally, practice. decision proceeding statute of limita- of a criminal the “changed be abandoned because must filing legal malpractice claims tions for principles of law conditions” if “related obtains until the criminal defendant be tolled developed far as to have left the have so at 1360. In post-conviction relief. 816 P.2d of aban- old rule no more than a remnant conclusion, doctrine, reaching we noted the facts have so [or] doned proceedings: differently, uniqueness of criminal so as to or come to be seen significant old rule of have robbed the post-conviction that By adopting the date application....” trigger to the as the relief is obtained Sheehan, Canada, bright we establish Whitney statute of Pratt & (Alaska 1993) (citations significantly assist which should line test omitted) (alterations of statute of limita- original). in the resolution courts tions issues. strength command for The of stare decisis’ who, is the upon ... Also concern precedent depending varies respect for a mal- defending against my in the course precedent the involved. action, might produce privileged view, in which type of decision illustrates or her evidence in his compelling. or other particularly command is not defense awith might hurt a criminal the benefit of was decided without defendant malpractice argument making the best majority’s opinion forces an ruling strategic account consider- result in an admission client to take into play viability underlying role under other rules. ations that would no would undermine Suppose that a client sues for impor- underlying suit seems more If the suit. tant, proceeding. Soon suit is while the attorney might decline to make thereafter, malpractice court enters proceed in dif- argument, when the actions even client, ap- judgment against and the client ferent courts. attorney might peals. decide The client's new legitimate post-conviction basis for relief. desirability Finally, we note allow- ing a criminal with a valid defendant pursue post-conviction claim relief remedy without the distraction fil- malpractice claim. added). (emphasis

Id. at 1361 adopt foregoing, on the

Based par- appeals tolling

exhaustion of

ticular circumstances of this case.5 Mosk,

words Justice force plaintiffs

To file their they

actions before know the outcome of claim is their judicial economy. promote

status of the is uncertain case is

resolved, ultimately if it because decided client’s favor suit

may well become moot for lack of dam-

ages. Blacker, 606, Cal.Rptr.2d

Laird Cal.4th J., (Mosk, dissenting), — U.S.-, 658, 121 113 S.Ct.

L.Ed.2d 584 *7 DIAMOND, Appellant,

David WAGSTAFF, Appellee.

Robert

No. S-5492.

Supreme Court of Alaska. 13,

May Flanigan, Flanigan,

Michael W. Walther & Anchorage, appellant. Maassen, Burr, Kurtz,

Peter J. Pease & Anchorage, appellee. See, Moser, 538, e.g., (Iowa 1987); Potthoff, F.Supp. Bonanno v. N.W.2d (N.D.Ill.1981) law); (applying Davies, Illinois United States Nat'l Bank v. Or. Amfac Miller, Distrib. Co. v. Ariz. (1976); Hughes Mahaney (1983); Peat, Marwick, Mitchell & Co. v. (Tex.1991). Higgins, 821 S.W.2d Lane, (Fla. 1990); Neylan 565 So.2d