Wayne L. MARTIN and Floyd W. Martin, Plaintiffs-Appellants, v. Verner R. CLEMENTS, Defendant-Respondent.
No. 12113.
Supreme Court of Idaho.
March 8, 1978.
575 P.2d 885
Daniel W. O‘Connell of Ware, Stellmon & O‘Connell, Lewiston, for defendant-respondent.
McFADDEN, Justice.
Plaintiffs-appellants, Wayne L. Martin and Floyd W. Martin, the sons of Ernest C. Martin, deceased, brought this action against defendant-respondent, Verner R. Clements, an attorney, seeking damages resulting from alleged legal malpractice in the probate of their father‘s estate. This appeal is from an order of dismissal in favor of respondent. The district court dismissed
On May 8, 1938, Nellie B. Martin, the wife of Ernest C. Martin and the natural mother of appellants, died intestate. Respondent, an Idaho attorney, probated her estate including certain community farm property located in Nez Perce County that is involved in this appeal. This farm property was distributed to Ernest C. Martin, appellants’ father, as his separate property. After the father remarried, respondent prepared a will for him which was duly executed and which in part provided:
THIRD: I hereby declare that I am married and that my wife‘s name is Mertice Martin, whom I married June 1, 1939, and that there is no issue of our marriage. I further declare that my wife, Mertice Martin is my second wife; that I was formerly married to Nellie B. Martin, who died May 8, 1938, and that I have as issue of my first marriage, two sons, to-wit:
Floyd Wesley Martin
Wayne LeRoy Martin
FOURTH: A portion of the property that I now own, both real, personal and mixed, is my own separate property, and not the property of the community composed of myself and my wife, Mertice Martin. I mention my wife, Mertice Martin to show that I have not forgotten her, and that I purposely exclude her from any share in my separate property and in my half of our community property which I may dispose of by will as the law permits, inasmuch as the share in our community property which my wife will receive as the law directs, will be adequate for her.
FIFTH: I do hereby give, devise and bequeath all of my estate, either real, personal or mixed, of whatsoever kind or character, and wheresoever situated, either community or separate, of which I may die seized or possessed, or which I may at the time of my death, have power to dispose of by will to my sons, Floyd Wesley Martin and Wayne LeRoy Martin, in equal shares, share and share alike.
Following the death of Ernest C. Martin in 1951, appellants and their stepmother, Mertice C. Martin, retained the respondent to probate Mr. Martin‘s estate. On July 17, 1954, a decree of distribution was entered, treating the farm property as the community property of Ernest C. Martin and Mertice C. Martin. Pursuant to the decree, one-half interest in the property was decreed to the appellants’ stepmother as her community share of the property.
On June 7, 1974, appellants brought this damage action for legal malpractice against the respondent, alleging his negligence in the probate proceeding wherein their father‘s separate property was allegedly treated as community property. Appellants alleged that they did not discover the negligence until June 10, 1972, when advised by another attorney. Respondent‘s amended motion to dismiss was granted on August 25, 1975.1 This appeal is from that order of dismissal.
Considerable argument is devoted by appellants to the question of whether
The central controversy is whether application of amended
The question of when a cause of action accrues for purposes of the statutory limitation period was most recently addressed by this court in Stoner v. Carr, supra. That decision involved a foreign object negligently left in a patient‘s body by a physician. The alleged negligence occurred on March 9, 1971 (15 days prior to the effective date of amendment), was discovered on July 31, 1973, and an action for damages was brought on December 24, 1974. This court stated:
The plaintiffs argue that the application of the 1971 amendment constitutes a retroactive application of the amendment because the wrong (leaving the surgical needle in Mrs. Stoner‘s body) occurred prior to the effective date of the 1971 amendment. However, this court has held otherwise:
“A law is not retroactive merely because part of the factual situation to which it is applied occurred prior to its enactment; rather, a law is retroactive only when it operates upon transactions which have been completed or upon rights which have been acquired or upon obligations which have existed prior to its passage. [Citation omitted.] In cases such as the present, the right to compensation does not accrue and the rights of the parties do not become fixed until the occurrence of the event, in this case appellant‘s disability, which gives rise to a cause of action. [Citations omitted.]” Arnold v. Wooley, 95 Idaho 604, 606, 514 P.2d 599, 601 (1973), quoting Frisbie v. Sunshine Min. Co., 93 Idaho 169, 172, 457 P.2d 408, 411 (1969). Under the circumstances of this case, the plaintiff‘s cause of action did not accrue until discovery; thus, the 1971 amendment was effective two years and four months prior to the accrual of the right of action and application of the 1971
amendment to a cause of action accruing in 1973 does not involve a retroactive application of law.
Stoner v. Carr, 97 Idaho at 643, 550 P.2d at 261. In resolving the issue, the court in Stoner v. Carr was aided by our earlier decision in Billings v. Sisters of Mercy of Idaho, 86 Idaho 485, 389 P.2d 224 (1964), in which this court had stated that a cause of action for negligent failure to remove a foreign object in a medical malpractice case did not accrue until the patient discovered or should have discovered the negligent act. In Stoner v. Carr, 97 Idaho at 643, 550 P.2d at 261, we stated:
Thus, after 1964, when Billings v. Sisters of Mercy of Idaho, supra, was decided, knowledge (actual or constructive) of a foreign object left in the body is required before the cause of action can be deemed to accrue in such cases. The statute of limitation in effect when the right of action is deemed to accrue defines that statutory period unless the legislature provides otherwise. The plaintiffs’ cause of action here is deemed to have accrued July 31, 1973, when the surgical needle was discovered in Mrs. Stoner‘s abdomen. Thus, the statute of limitations began to run at this time.
The “discovery” exception which tolls the accrual date of a cause of action until the act or omission is discovered or reasonably should have been discovered has only been applied by this court in two situations: foreign object, Billings v. Sisters of Mercy of Idaho, supra; and misdiagnosis, Renner v. Edwards, 93 Idaho 836, 475 P.2d 530 (1970). Thus, only in these two cases did a cause of action for malpractice accrue upon discovery of the negligent act, unless a new discovery exception is now enunciated by this court.
The court‘s reasoning in adopting the “discovery” exception was perhaps most clearly stated in Renner v. Edwards, 93 Idaho at 840, 475 P.2d at 534:
Our legislature did not define the time of accrual as being either the time of the performance of the negligent act or the time of the acquisition of knowledge of the negligent act. That was done by this Court. To adopt the “discovery rule” is to imply the existence of knowledge as a requirement for the accrual of an action and thus supply knowledge as a statutory requirement. Conversely, to reject the rule is to imply that the legislature considered the requirement of knowledge as an element of accrual and deliberately excluded such terminology from the statute. Legislative inaction should not be ignored in determining legislative intent, but to imply such an intent in this case as a result of legislative inaction is unreasonable. Berry v. Branner, [245 Ore. 307, 421 P.2d 966 (1966)]. At the moment, our statutes, as most others across this country, are silent as to the interrelationship between “knowledge” and “accrual.” We are required to reach a decision without assistance from our legislative brethren. We select the alternative interpretation of our statute, which we believe accords with our concept of justice and reason.
Since the 1970 decision in Renner v. Edwards, supra, and perhaps partially in response to that decision, our legislature in 1971 amended
Prior to the amendment of
The issue, however, still remains as to whether the cause of action is barred by the applicable statute of limitation. The statute in effect in 1954, the date appellants’ cause of action is deemed to have accrued, is the applicable statute of limitation. Stoner v. Carr, supra. Whether we apply appellants’ suggestion that
Order of dismissal affirmed. Costs to respondent.
DONALDSON, J., and SCOGGIN, D. J. (Ret.), concur.
BAKES, Justice, concurring specially:
Were it not for the fact that it does not have any effect on the outcome of this case, I would dissent from the Court‘s view that a discovery rule should not be applied in legal malpractice similar to the discovery rule which this Court has applied in medical malpractice cases. See Billings v. Sisters of Mercy of Idaho, 86 Idaho 485, 389 P.2d 224 (1964); Renner v. Edwards, 93 Idaho 836, 475 P.2d 530 (1970). However, under the ruling of this Court in Stoner v. Carr, 97 Idaho 641, 550 P.2d 259 (1976), a decision in which I did not concur, if a discovery rule is applied in legal malpractice cases the statute of limitations in this case would still have run.
Stoner v. Carr, supra, which applied a discovery rule, held that the cause of action does not accrue until it is discovered. In the Stoner case the discovery occurred after the amendment of
While I do not agree with the Stoner v. Carr rationale, the effect of that decision on the facts of this case moots the question of whether or not a discovery rule in the case of legal malpractice should be applied. The result would be the same in either event. Therefore, I concur in the dismissal of the plaintiff‘s complaint.
BISTLINE, Justice, dissenting.
In no way do I fault the rationale of the majority opinion, but I see the picture under a different light. The Court‘s opinion has the virtue of judicial integrity, because undoubtedly it will be wrongly interpreted as favoritism on behalf of the legal profession when contrasted with the Court‘s pioneer decisions adopting discovery rules in medical malpractice cases. See, Renner v. Edwards, 93 Idaho 836, 475 P.2d 530 (1970); Billings v. Sisters of Mercy of Idaho, 86 Idaho 485, 389 P.2d 244 (1964).
The choice facing the Court today is either to create a new discovery rule for legal negligence cases postured as is this one, or to defer to the legislative intent found in a statute which all agree does not apply to the present case. I would choose the former as the path which most “accords with our concept of justice and reason.” Renner v. Edwards, 93 Idaho at 840, 475 P.2d at 534. The weight of authority in recent years clearly inclines toward applying a discovery rule to acts of legal negligence which, by their very nature, are rarely discovered until after the applicable statutes have run. See, Neel v. Magana, Olney, Levy, Cathcart & Gelfand, 6 Cal.3d 176, 98 Cal.Rptr. 837, 419 P.2d 421 (1971); Edwards v. Ford, 279 So.2d 851 (Fla.1973); Kohler v. Woollen, Brown & Hawkins, 15 Ill.App.3d 455, 304 N.E.2d 677 (1973); Corley v. Logan, 35 Mich. App. 199, 192 N.W.2d 319 (1971); Hendrickson v. Sears, 365 Mass. 83, 310 N.E.2d 131 (1974).
The majority‘s decision to defer to the legislative intent found in the 1971 amendment to
It should also be noted that in several of the cases cited above, legal malpractice has been analyzed along the lines of a theory of “constructive fraud” because of the fiduciary relationship involved. Such an analysis would bring into play the discovery rule exception created in