*1 presents award. this ease sation Because Court, private
novel issue whether may be allowed in a situation
condemnation benefit, and
involving purely personal brought frivolously, we reverse the trial attorney Costs on
court’s award fees.
appeal appellants. TROUT,
McDEVITT, C.J., J., and
REINHARDT, Tern., J. Pro concur.
BAKES, (Ret.), recused. J. TINGLEY, Plaintiff-Appellant,
John O.
and Plaintiff,
Mary Kamer,
Terry and Doe E. HARRISON Jane
Harrison, wife, husband and
Defendants-Respondents, Doe L. Herndon and
Steven Jane
Herndon, wife, husband and
Defendants.
No. 19964. Idaho,
Supreme d’Alene, 1993 Term.
Coeur October 6, 1994.
Jan. *2 complaint dis-
November on Rule 41 of Idaho Rules missed based prosecute. Procedure failure Civil later, February January or years two Over Tingley that he *3 Harrison informed dis- thought had had the case Herndon during deposition his missed. When asked underly- of the possible about dismissal action, replied ing that he sure was had at that case been dismissed time.
Shortly learning of the dismissal after action, personal injury Tingley filed a his Missoula, MT, Molodragovich, Dye, Dale & pursuant Chapter 7 of the Bank- petition Radakovich, Lewiston, Danny and for J. ruptcy Act in the United States Reform argued. plaintiff-appellant. Binnеy, R. John Bankruptcy for the District of Mon- Smith, Hull, (“Bin- Quane, & d’Al- attorney Howard Coeur through Binney R. tana Jon ene, defendants-respondents. K. ney”). Tingley for Susan instant unresolved listed the Servick, argued. against and Herndon on claim Harrison contingent B-2 as a claim. On
Schedule
9, 1987,
McDEVITT,
Earner
March
and
filed
F.
Chief
CHAS
Justice.
through
attorney
their
cause of action
instant
ap-
Tingley (“Tingley”)
Appеllant, John
(“Radakovich”) against
Danny J. Radakovich
granting
peals
order of the trial court
an
Herndon, alleging that Harri-
Harrison and
by respondents, Terry Harrison
motions
professional
and Herndon committed
son
(“Hern-
(“Harrison”) and
Herndon
Steven
malpractice
fraudulently
their
and
concealed
don”),
summary judgment
legal
in
mal-
for
underlying
foreknowledge
personаl
that the
practice
ruled as a
action. The trial court
pur-
injury
going
to be dismissed
limitation
of law that the statute of
matter
to the Idaho Rules of Civil Procedure.
suant
malpractice
Tingley,
action.
who
barred the
1988,
2,
granted
court
On March
district
April
in
almost
bankruptcy
declared
counsel,
foreign
motion for association of
filed,
year
present
bеfore the
action was
Binney
permitting
to serve as associate coun-
of limitation does
contends that
statute
with Radakovich. On
sel
not bar the action.
asserts
bankruptcy
in
filed Ratification
the trustee
estate,
bankrupt
action is
cause of
authorizing
bring
Agreement
Tingley to
subject
and thus
to an alternative
“though
in
name
suit is
suit
his own
bankruptcy
code that hаs
under
subject
property
the estate and
to distri-
yet
run. We affirm.
pursuant
726.”
bution
U.S.C.
1, 1988, Judge Magnuson
On November
BACKGROUND
summary
for
respondents’
denied
motions
injury
personal
July
arises out of a
judgment
May
This case
of 1988.
filed
granted
Herndon
re-
by attorneys
Judge
subsequently
suit
Harrison and
filed
Eosonen
summary
spondents’
and his former wife
motions
on behalf of
renewed
11, 1990,
(“Earner”).
in-
on
judgment, filed December
bаsed
Mary
Tingley was
Earner
of limitation.
Ridge
running
statute
jured
fighting a fire
while
Cedar
grant-
order
Tingley appeals the trial court’s
Athol, Idaho,
July
1979.
Mill near
respondents.
judgment
ing summary
retained the services
Tingley and Earner
represent
them a suit
Herndon
ON APPEAL
ISSUES
damages for the
Ridge to recover
Cedar
injuries
a com-
rul-
Herndon filed
sustained.
the district court erred
I. Whether
Dur-
July
ing
limitation barred
plaint
their behalf on
1981.
that the statute of
suit,
pursuing
appellant
became
ing
course of the
Harrison
cause of action.
Tingleys.
for the
On
associated as counsel
malpractice
pro-
II. Whether the district court erred in rul-
causes of action.
It also
ing
that 11 U.S.C.
extends the
at the
vides that the cause of action accrues
statute of limitation to a trustee
occurrence, act,
time of the
or omission com-
finding
and in
that the trustee failed to
plained of.
case
extends the time
Idaho
law
join
timely
this cause of action under 11
plaintiff
of accrual to the date when the
ratify
or to
the cause of damaged
negligence
continuing.
where
17(a).
action under I.R.C.P.
Nash,
Griggs v.
Tingley asserts that
124-25
STANDARD OF REVIEW
questiоn
concerning
of fact
there is
A
summary judgment
motion for
“shall be
of ac-
accrual date of the
cause
pleadings, deposi-
rendered forthwith if the
*4
summary judgment
precludes
tion that
tions,
file, together
and admissions on
with
this ease. He contends that evidence show-
affidavits,
any,
if
show that there is no
ing
underlying
that he did not know that the
genuine
any
issue as to
material fact and that
personal injury action had been dismissed
moving party
judgment
is entitled to a
as
1986,
April
genuine
until
of
creates a
issue as
56(c).
a
of
Upon
matter
law.” I.R.C.P.
a
to the exact date this cause of action accrued.
summary
motion
judgment,
both the dis-
disagree.
Griggs
We
The
court acknowl-
trict
Supreme
upon
court and the
re-
edged
interpreted
that
this Court has
I.C.
view,
liberally
disputed
must
construe all
5-219(4)
§
require
damage”
“some
before
non-moving party.
facts
favor of the
Bonz
period
the action accrues and the limitation
Sudweeks,
589, 541,
119 Idaho
808 P.2d
begins to run.
Id.
(1991).
See also Chicoine v.
876, 878
All reasonable inferences
482, 483-84,
Bignall, 122 Idaho
835 P.2d
that can be made from the record shall be
1293,
Sudweeks,
(1992);
made in
party opposing
favor of the
1294-95
Bonz v.
119
(1991).
proving
539, 542,
876,
motion.
Id. The burden of
Idaho
808 P.2d
878
absence of a material fact rests at all times However,
interpreted
this Court has not
I.C.
upon
moving party.
G & M Farms v.
5-219(4)
§
require
plaintiff
that the
has
Co.,
514, 517,
Funk Irr.
119 Idaho
808 P.2d
damage
discovered the
as
contends.
(1991).
851,
However,
854
opposing par-
Clements,
906,
Martin v.
98 Idaho
575 P.2d
ty’s case
speculation.
must not rest on mere
(1978). Martin, plaintiffs brоught
885
a
A mere scintilla of
enough
evidence is not
attorney, seeking
cause of action
an
genuine
create a
issue of fact.
Id. The
damages resulting
alleged legal
from
mal-
opposing party’s case must “set forth the
practice
probate
in the
of their father’s es-
particularity;
facts with
general
for if
aver-
deciding
tate.
when the cаuse of action
ments were sufficient
summary judgment
purposes
applying
§
accrued for
of
I.C.
5-
procedure
utility.
would lose its
The re-
219(4), this Court refused to infuse the I.C.
quirement
specificity
of
is underscored in
5-219(4)
§
with a “discov-
moving
cases where the
defendant has estab-
Martin,
910,
ery” exception.
ANALYSIS of regarding issue material fact when the accrues, of question cause action is one of
I. by law for determination the court. Reis THE TRIAL COURT DID ERR IN Cox, 438, NOT 46, 104 Idaho 50
GRANTING SUMMARY JUDGMENT case, law, In this as a matter of BASED ON THE THE RUNNING OF possible Tingley’s malprac latest date that OF STATUTE LIMITATION § tice cause of action accrued under I.C. 5- 219(4) 5-219(4) November provides
Idaho Code the date the two-year professional statute of limitation for underlying personal injury action was dis- date, then, following particular
missed.
It was
on that
of it
at
time.”
sure
negligent Tingley
deposition
either
far
at
that he
removed antecedent
also stated
continuing
or
negligenсe
respon-
act
of
asked Herndon about
the dismissal after
dents,
Bonz,
damaged.
knowledge
See
Harrison warned him of it. This
(determina-
by
period applicable to this
P.2d at 368. The burden then shifted to
16,1985, and,
expired
consequent- Tingley
sufficient
November
to come forward with
con-
ly,
Tingley’s complaint,
genuine
travening
bars
which he did not
evidence to create
issue
file until March 1987.
fact.
this bur-
Id.
met
year from-January
or
den.
had
Tingley’s claim for relief is barred
bring
February
his cause
action.
grace period
even under
al
the extended
bring
He did not
the cause of action until
5-219(4)
lowed under I.C.
for cases where
beyond
date.
March
the limitation
fraudulently
knowing
the defendant has
Thus,
Tingley’s
the statute of limitation bars
ly
damage
fact
concealed the
*5
Summary judgment
respondents
claim.
injured
above,
party. As noted
this Court
appropriate.
was
5-219(4)
§
engraft
refused
I.C:
with
Howevеr,
discovery
Tingley argues alternatively
rule.
the statute itself
that
discovery
estoppel prevents
provides
plaintiff
equitable
rule
the doctrine of
when
alleges
respondents
asserting
the mal
from
the statute of
fraudulent concealment of
defense,
practice.
relying
The statute makes clear that
limitation as
on this
when
holding
professionаl malpractice
Hosp.
fraudulent
in Twin Falls Clinic &
involves
Court’s
Hamill,
19,
wrongdo Bldg. Corp.
or
concealment of the
v.
103 Idaho
644 P.2d
intentional
(1982).
Hamill,
Court,
ing,
wrongdoing is
in deter
even when the initial
341
this
merely negligent,
mining
the
legislature
the statute of limitation
Idaho
did not
5-219(4)
right
plain
any way
§
is
until
limit in
the
of
contained
tolled
the
intend to
I.C.
equitable
injured
estop
party “knows or
the exercise of
tiffs to invoke the doctrine of
Code,
put
by enacting §
the
pel
care should have been
on
5-219 of
Idaho
reasonable
following
inquiry regarding
complained
the ...
forth the
as the elements of
matter
set
date,
equitable estoppel:
of.” After that
the statute of limitation
year,
period
after which an action for
(1)
is
or
representation
false
concealment
[A]
McCoy v.
professional malpractice is barred.
construc-
of a material fact with actual or
765, 772,
360,
Lyons, 120
820 P.2d
Idaho
367
truth, (2)
knowledge
party
the
the
tive
of
(1991).
asserting estoppel did
or could
not know
truth, (3)
repre-
not discover the
false
Tingley sufficiently alleges fraudulent con-
sentation or concealment was made with
application of
cealment to warrant
this
(4)
upon,
be
the intent that it
relied
discovery exception.
v.
limited
See Theriault
person
representation
to whom the
was
Co.,
303, 306,
AH. Robins
108 Idaho
698
from
facts were con-
made or
whom the
(1985)
365,
(party alleging fraud
P.2d
369
cealed,
represen-
upon the
relied and acted
constituting fraud
must state circumstances
prejudice.
tatiоn or concealment to.his
particularity).
Johnson v.
with
See also
Gor-
(1972). Hamill,
598,
1,
22,
ton,
595,
at 344.
4
91
(9th Cir.1986).
asserting
statutory
dant from
bar when
09
See also Scarlett v.
Barnes,
(Bankr.W.D.Mont.
representations
his
or
121
conduct dissuade a
Bankr. 578
1990)
plaintiff
prosecuting
(legal malpractice
рroperty
from
a cause of action
estate).
108(a)
Theriault,
during
bankrupt
provides
of limitation.
Section
may bring
that a
an action that
(citing
ests held the debtor at the time the action on the that he was not the real 541(a). 11 complaint commenced. The in in interest their answer to the action, 17(a) scope of 541 August includes causes of re filed 1987. Rule a affords gardless of whether the action is transferra “reasonable” amount of time to correct an assignable. ble or Sierra naming party plain Switchboard Co. v. inadvertent error in Westinghouse Corp., Joining party Elec. 789 F.2d tiff. 708- the trustee as a at the 92 summary of re- granted judgment in favor not “reason-
late date of 1988 was running of the stat- spondents based able.” in 11 U.S.C. of limitation harbored ute 17(a) Second, only allows retro Rule 108(a). there was a mistake active ratification where naming original party. in United States respondents. appeal Costs & 890 F.2d Use CM A of Benefit Wulff (9th Cir.1989); 1070, 1074 Sec. Bank v. First SILAK, BISTLINE, and JJ. TROUT 221 Gary, Mont. 718 concur. appellant asked Wulff, JOHNSON, Justice, concurring and legal effect of an the court to consider one-year dissenting. complaint filed after the amended run in a statute of limitation had cause opinion, I concur in I of the Court’s originally brought within the limitation part II. respectfully must from but dissent complaint period. named The amended incorrectly view, applied my the Court has allegedly on Miller Act new claim based affirming trial court’s I.R.C.P. assigned plaintiff. Ninth Circuit to thе The summary judgment. com Court refused to treat amended Tingley’s first that The Court concludes assign- plaint specific by as ratification joining delay year the trustee as of one right the cause or of the to maintain Wulffs’ 17(a), party in interest was not “reasonable.” stating real under of action I.R.C.P. given for the conclusion No rationale purpose prevent of the rule is forfei time. year of the was an unreasonable of an action when determination ture the trial when an I wonder what standard right party to sue is difficult or can made, glean and and of the bar will understandable mistake been courts members opinion that of our assignor reading it was the of this that was clear that Partnership the time the only party Appeals entitled to sue at in Conda (Ct. Co., Wulff, original action. P.2d 920 filed the Wulffs Const. The noted that Appeals “[r]ule F.2d at 1074. court con- App.1989), where the Court salutary princi years is the codification an unreason- that two was not cluded ple forfeited that an action should not be party add real time in which to able *7 mistake; 17(a). it is not a because of an honest In pursuant to Con- interest I.R.C.P. by cir provision parties be distorted to da, to Appeals lack the Court of focused period.” Id. at 1075. cumvent the limitations raising the real prejudice party to the he was mis has failed to show that objection. party in interest Id. trustee, in lieu takenly party a case, named In this makes at 922. Court application of rule invoking or that he is Harrison, prejudice to is reference to nor no 17(a) escape than to any other reason any prejudice. evidence of there 5-219(4) period. I.C. Next, lack of a focuses the Court Third, 17(a) applies Rule when naming original party. in No- mistake complaint time barred. original is not 17(a) in is reference made where I.R.C.P. (11th Eddy, 689 F.2d Cir. Hess applicatiоn prerequisite as to the mistake a 1982). case, is Tingley’s In claim time naming of real back of the of the relation belatedly at barred. he party in interest. I could understand party in join trustee as a tempted to mistake, dealing were with if we reference to bar. This the time order circumvent defen- of a claim the relation back manipulate will not allow in incorrectly identified been dant who had 17(a). purpose of Rule the benevolent 15(c) to mis- complaint. I.R.C.P. refers chang- of an amendment in context take discretion trial did not abuse its The court is 17(a) party against claim assert- ing the whom finding relation back in the Rule view, my application of I.R.C.P. no ed. apply not where there was doctrine did require- 17(a) by the same naming governed mistake in not a factual evidence of Apparently, the Court of mistake. properly ment plaintiff Tingley, and therefore require rewritten I.R.C.P. a mistake naming plaintiff party
in who is the real
in interest before there can be a relation naming party
back of an amendment the real
in interest. premise
The ruling third of the Court’s opinion II of the is that I.R.C.P.
only applies original complaint when the
not time ignores unique barred. This By
circumstances this case. virtue of 11 108(A), the trustee had a viable
claim at the complaint, time filed the
although Tingley Obviously did not. Harri-
son knew the party trustee was the real
interest complaint, when filed the alleged
because Harrison in the answer that party was not the real in interest. unique circumstances,
Under appli- these by
cation of the rule cited the Court is erro-
neous.
Leroy MULCH, Plaintiff-Appellant, R. MULCH,
Karen J. Defendant-
Respondent.
No. 19840.
Supreme Idaho, Court of d’Alene,
Coeur Oct. 1998 Term.
Jan. 1994.