W.C. JONES, Appellant, v. Brent WADSWORTH, Appellee.
No. S-2769
Supreme Court of Alaska.
May 11, 1990.
791 P.2d 1013
Because a union is the agent of its members who collectively direct it, I would hold that a union does not employ its members qua members for purposes of the Alaska Workers’ Compensation Act (“AWCA“).1 This court recently held that an implied contract of employment under AWCA requires “the manifestation of consent by one party to another that the other shall act on his behalf and subject to his control, and consent by the other so to act.” Childs v. Kalgin Island Lodge, 779 P.2d 310, 314 (Alaska 1989). In this case it is the workers who have the legal right to control the union. If anyone is an employer, it is the members, not the union.2
This legal relationship between a union and its members does not depend on whether payment of strike benefits is conditioned on participation in a union demonstration. The worker pays dues to the union for its services. One of these services is to provide benefits in case of a strike. Strike benefits are not wages paid to a worker for participating in a union demonstration, but part of the benefit package purchased with union dues.3 Even if payment of strike benefits is conditioned on participation in a union demonstration, the strike benefit is still a benefit, albeit a conditional one, not a wage.
Under the court‘s analysis, the question whether a union employs its members must be decided in an ad hoc manner on the basis of the existence of an implied contract of employment. Because I believe that the legal relationship between a union and its members qua members precludes the possibility of such a contract, I would hold that a union does not employ its members qua members for purposes of AWCA. Employers should not be able to shift to their employees’ agent their duty under AWCA to pay for their employees’ injuries.
Byron D. Walther, Wadsworth & Associates, Anchorage, for appellee.
Before MATTHEWS, C.J., and RABINOWITZ, BURKE, COMPTON and MOORE, JJ.
OPINION
MATTHEWS, Chief Justice.
This appeal involves a legal malpractice claim filed more than two years but less than six years after the cause of action accrued. The critical question is whether the claim is governed by the two-year statute of limitations applicable to tort actions, or the six-year statute of limitations applicable to contract actions.
FACTS AND PROCEEDINGS
W.C. Jones approached Brent Wadsworth in 1974 or ‘75 to obtain his services in connection with two lawsuits Jones was pursuing. Jones claims that he was interested in hiring an attorney who would “move the case along in a prompt manner and who would keep [him] informed of all the developments.” Jones apparently had three prior attorneys who failed to do these things for him. He claims that Wadsworth specifically promised to “move the case through the court system to trial expeditiously” and to “keep [Jones] informed and up to date on all the happenings in court.” Wadsworth claims not to have promised to “provide any unique services” or to “guarantee any specific results.”
The first case settled before trial. The second case, a federal case, proved more difficult. Wadsworth thought that problems of proof would limit the value of the suit, so he advised Jones to drop it. Jones wanted to pursue it, so Wadsworth told him to get another attorney. Jones hired Henry Taylor in February, 1979. Taylor asked Wadsworth to stay on in order to assist at trial, and Wadsworth agreed.
Jones went to work in Brazil in June, 1979. He left Wadsworth a phone number at which he could be reached, and requested Wadsworth to contact him with news of any developments.
While Jones was in Brazil, the federal district court issued an order dismissing Jones’ case for lack of prosecution, but subject to reinstatement if Jones, within 30 days, posted a bond as security for costs and got an attorney who would promise to prosecute the case to final conclusion. Wadsworth admits negligently miscalendaring this order as requiring these things to be done within 90 days. Wadsworth did not inform Jones or Taylor of the order at the time. Wadsworth discovered his error after 60 days, at which point Taylor was notified, and Jones’ wife was told to have Jones contact Wadsworth upon returning from Brazil.
The conditions of the federal court‘s order were complied with before 90 days passed, but the case was dismissed with prejudice. The case was appealed but the Ninth Circuit denied relief.
Jones sued Wadsworth and Taylor for malpractice on September 21, 1984, some five years after the expiration of the 30-day period following the issuance of the conditional order of dismissal. Jones claimed “neglect, ... willful neglect and deception” and sought restitution of attorney‘s fees, lost wages, damages, and punitive damages. Taylor‘s and Wadsworth‘s answers raised the statute of limitations as an affirmative defense. Jones amended his complaint to more specifically allege breach of contract. He claimed that “[d]ue to
On December 10, 1984, the trial court issued an order dismissing Jones’ claims as time barred. Jones moved for reconsideration. On January 8, 1985, the court vacated its December 10, 1984 order to allow Jones to “maintain an action for breach of contract and ... pray for damages which are contractual in nature.” Jones’ second amended complaint stressed the contract, but continued to seek punitive damages and compensatory damages for “emotional disturbance,” in addition to rescission, restitution and general damages.
Taylor was dismissed from the case by stipulation on July 24, 1987. Jones moved for summary judgment on liability and Wadsworth moved to dismiss. On March 30, 1988, the trial court issued an order dismissing Jones’ claims as time barred. The court concluded that Jones’ causes of action “sound[ed] in tort” because the “duty that Wadsworth breached was a duty of reasonable care imposed by law.” Jones appeals.
DISCUSSION
This being a review of a summary judgment adverse to Jones, the nonmoving party, we must draw all reasonable inferences in his favor in determining whether there are any genuine issues of material fact, and whether Wadsworth was entitled to judgment as a matter of law. See Drake v. Hosley, 713 P.2d 1203, 1205 (Alaska 1986). Therefore, for purposes of this appeal, we assume as true Jones’ allegation that Wadsworth expressly promised to “move the case through the court system to trial expeditiously” and to “keep [Jones] informed and up to date on all the happenings in court.” Thus, the question presented is whether Jones’ claim for breach of these promises is an “action upon a contract” governed by the six-year statute of limitations of
The trial court dismissed Jones’ claim finding
Our position is supported by the decisions of many courts which have held that a contract statute of limitations applies to legal malpractice claims based on the breach of an express agreement. These cases often involve circumstances where the breach might also have been regarded as a tort. For example, in Towns v. Frey, 149 Ariz. 599, 721 P.2d 147 (Ariz.App.1986), the defendant attorney orally agreed to “file a lawsuit, if necessary, and to achieve satisfactory results,” but failed to file the lawsuit. Id. at 149. The court noted that “[i]f one is going to assert a breach of
Similarly, in Pittman v. McDowell, Rice & Smith, 12 Kan. App. 2d 603, 752 P.2d 711 (1988), the defendant attorney expressly agreed to file a journal entry with the court to secure child support payments, but failed to do so. Id., 752 P.2d at 713. The court stated that the attorney “failed to perform a duty arising under or imposed by agreement, which is in contract” and that the attorney “breached a duty arising from an express agreement of the parties.” Id., 752 P.2d at 718. It then held that the contract statute of limitations applied. Id. See also Sherman Indus., Inc. v. Goldhammer, 683 F.Supp. 502, 507 (E.D.Pa. 1988) (construing Pennsylvania law) (to sustain a claim under a breach of contract theory, plaintiff must show that there was a contract and that defendant breached a specific provision of the contract); Whitehouse v. Quinn, 443 N.E.2d 332, 337 (Ind. App.1982) (claim predicated upon the nonperformance of an express promise contained in a written attorney-client contract is governed by the statute of limitation applicable to written contracts); Newsom v. Boothe, 524 So.2d 923, 927 (La.App. 2 Cir. 1988) (contract statute of limitations applies when an attorney warrants a specific result and fails to obtain it, or agrees to do certain work and does nothing whatsoever); Juhnke v. Hess, 211 Kan. 438, 506 P.2d 1142 (1973) (attorney‘s failure to file timely appeal, as promised, was breach of a specific contract for purposes of a contract statute of limitations).
Wadsworth argues that our decision in Van Horn Lodge, Inc. v. White, 627 P.2d 641 (Alaska 1982) requires application of the tort limitations period. We disagree. In Van Horn, the plaintiff claimed that the defendants breached an implied term of their attorney-client agreement whereby the defendants allegedly promised to render competent and diligent legal services. We decided that the contract limitations period was inapplicable, stating:
[Plaintiff‘s] complaint sounded in tort, rather than contract. The duty that [defendants] allegedly breached was a duty of reasonable care imposed by law. The contract only gave rise to the duty; the claim that [defendants] breached an implied term of their contract of employment, to render competent and diligent legal services, is only a claim that they failed to exercise due care. There is no evidence of an agreement to obtain a particular result or to do a particular thing. Thus, we believe the essence of [plaintiff‘s] complaint was negligence, and the gravamen thereof lies in tort. Accordingly, the period of limitation found in
AS 09.10.070 , rather thanAS 09.10.050 , applies.
Id. at 643 (emphasis added) (citations omitted).
Unlike Van Horn, the present case involves an express agreement “to do a particular thing.” Jones claims that Wadsworth expressly promised to move the case to trial expeditiously and to keep Jones informed. The essence of such a claim is in contract, and thus the contract limitations period should apply. As we stated in Austin v. Fulton Ins. Co., 444 P.2d 536, 539 (Alaska 1968):
[W]hen one warrants that a certain thing is so or will be done, he is giving assurance or making a promise to that effect, and thus in essence is contracting for a certain performance. If this is so, then the six-year statute of limitation respecting contracts would appear to be applicable. (Footnote omitted)3
Furthermore, the prospect of “every” attorney malpractice case being governed by the contract statute of limitations is not necessarily undesirable. Under our current approach, the court must determine whether such an action is based on the breach of an express contractual duty or merely an implied one. As an original proposition this would seem to be a needless exercise since the six-year statute applies to all contract liabilities, express or implied.
As the Supreme Court of Hawaii has explained:
In the absence of a legal malpractice statute, most jurisdictions permit a plaintiff the choice between the contract or tort limitations periods depending on how the complaint is framed. See Note, Attorney Malpractice, 63 Colum.L.Rev. 1292, 1309 (1963). These jurisdictions seem to recognize that in most cases the difference between a contractual breach of the oral agreement between an attorney and his client, in which the attorney expressly or impliedly promises to exercise his best efforts on the client‘s behalf, and a tortious breach by an attorney of his duty of due care in handling a client‘s affairs turn on the phraseology employed in the complaint.
This court should avoid applications of the law which lead to different substantive results based upon distinctions having their source solely in the niceties of pleading and not in the underlying realities. We agree with the reasoning of Justice Tobriner, writing for a unanimous California Supreme Court in Neel v. Magana, Olney, Levy, Cathcart & Gelfand, [6 Cal.3d 176, 98 Cal.Rptr. 837, 840, 491 P.2d 421, 424 (1971)], that regardless of the nomenclature used by the plaintiff in a legal malpractice suit, all such actions should be governed by the same statute of limitations. This follows from the proposition that, in reality, a claim of injury resulting from the professional incompetence of an attorney is actionable under theories which are an amalgam of both tort and contract. See generally Prosser, The Borderland of Tort and Contract, in Selected Topics on the Law of Torts 380, 423 (1954).
Higa v. Mirikitani, 55 Haw. 167, 517 P.2d 1, 4-5 (1973) (emphasis added). In accordance with the cited California case, the Higa court then held that all legal malpractice claims “which have as their gravamen injury to intangible property interests” come within the statute of limitations for contract actions. Id.
Although we think there is considerable merit to the Higa court‘s approach to the limitations question, the present case does not require reconsideration of the approach we took in Van Horn. This action was commenced within six years of Wadsworth‘s alleged breach of an express promise to do a particular thing. Therefore, the trial court erred in dismissing and its judgment is reversed. The action is remanded for further proceedings, consistent with this opinion.
REVERSED AND REMANDED.
The court concludes that since Jones’ cause of action is on an express rather than an implied contract, the action is governed by the six year statute of limitations,
Because contract law has its historical origins in tort law as the writ of assumpsit and because people often have contractual relations with those to whom they owe a duty of care, it is sometimes difficult to distinguish an action sounding in contract from one sounding in tort. However, this court consistently has applied the two year statute of limitations when the gravamen of the dispute is in tort and the six year statute of limitations when the gravamen of the dispute is in contract.1
The court‘s decision to apply the six year statute of limitations is based upon Jones’ allegation of an express contract. The court distinguishes our decision in Van Horn Lodge, Inc. v. White, 627 P.2d 641 (Alaska 1981) on the ground that Van Horn involved an implied contract while Jones alleges an express contract. This distinction is plainly at odds with
Reliance upon the dichotomy between tort and contract for the purpose of determining the appropriate limitations period is well placed. In tort cases, recovery is relatively easy. However, because duties arise by operation of law and the outcome is likely to depend upon disputed facts, the statute of limitations grants potential defendants repose and extinguishes stale claims after only two years. Contract law imposes greater obstacles to recovery than tort law.3 The longer limitations period is
appropriate because contract duties are assumed voluntarily and contract cases in general are less likely to depend upon testimonial evidence that quickly grows stale.
The gravamen of Jones’ suit is in tort, not contract. Jones’ claim is that Wadsworth is responsible for his case being dismissed because Wadsworth negligently missed a court-imposed deadline. Jones maintains that this claim sounds in contract because Wadsworth specifically agreed to “move the case through the court system to trial expeditiously” and to keep Jones “informed and up to date on all the happenings in court.” In legal malpractice cases, we have held that the six year statute of limitations applies only when there was “an agreement to obtain a particular result or do a particular thing.” Van Horn, 627 P.2d at 643. This must be an agreement to do more than is required by law. See id. As a lawyer, Wadsworth was already bound to proceed expeditiously with Jones’ case and to keep Jones informed.4 Nothing in the record suggests that Wadsworth undertook any greater duties than he otherwise had. Like Van Horn, this case involves an agreement to provide legal services of the same quality that all lawyers have a duty to provide. As indicated above, the court‘s effort to distinguish Van Horn on the ground that it involved an implied contract is not principled. This case is essentially a tort action for legal malpractice. Therefore, the action should be barred by the two year statute of limitations applicable to legal malpractice cases.
The court‘s decision will have several harmful consequences. Perhaps most important, by ruling that Wadsworth‘s representations of his professional obligations constituted an express promise actionable under the six year statute of limitations, the court creates an undesirable incentive for lawyers to avoid discussing their professional responsibilities with their clients. Lawyers will be reluctant to discuss their professional obligations knowing that a unilateral representation may extend what otherwise would be a two year limitations period for malpractice actions to six years.
In addition, the court‘s opinion inevitably will lead to the development of two separate lines of malpractice cases, one in tort and one in contract. The results of malpractice cases should not turn on the choice between these analytic frameworks. Finally, the court forces the superior court to engage in the highly speculative enterprise of determining whether a contract between Jones and Wadsworth was formed,5 what its terms were, whether it was breached, and what the correct measure of damages is.
ROBERT J. MOORE
JUSTICE
Robert J. KEPLEY, Appellant, v. STATE of Alaska, Appellee.
No. A-2919
Court of Appeals of Alaska.
May 4, 1990.
Blair McCune, Asst. Public Defender, and John B. Salemi, Public Defender, Anchorage, for appellant.
David Mannheimer, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Douglas B. Baily, Atty. Gen., Juneau, for appellee.