S056430, Opinion — Abbott v. DeKalb

306
Submitted on the briefs March 18, petition for review dismissed as
improvidently allowed June 18, 2009
Joel Terence ABBOTT,
Petitioner on Review,
v.
Jacques A. DeKALB
and State of Oregon,
Respondents on Review.
(CC 04CV0283ST; CA Al31204; SC S056430)
211P3d246
En Banc
On review from the Court of Appeals.*
Joel Terence Abbott filed the brief on behalf of himself.
Andrew C. Balyeat filed the brief for respondent on review
Jacques DeKalb.
Erin C. Lagesen, Assistant Attorney General, Salem, filed
the brief for respondent on review State of Oregon.
* Appeal from Deschutes County Circuit Court, Barbara Haslinger, Judge.
221 Or App 839, 190 P3d 413 (2008).

Cite as 346 Or 306 (2009) 	307
Michael A Greene filed a brief for amicus curiae Oregon
Trial Lawyers' Association.
PERCURIAM
The petition for review is dismissed as improvidently
allowed.

Abbott v.
PERCURIAM
We allowed review in this case to decide a question
about the rule set out in Stevens v. Bispham, 316 Or 221, 238,
851 P2d 556 (1993): that a person convicted of a crime cannot
sue his or her defense attorney for legal malpractice--and
thus that the statute oflimitations on such an action does not
begin to run-until "the person has been exonerated of the
criminal offense through reversal on direct appeal, through
post-conviction relief proceedings, or otherwise." We now con-
clude that we should dismiss the petition for review as
improvidently 	allowed, 	and 	we 	write 	to 	explain 	that
disposition.
Plaintiff was charged and convicted of two counts of
first-degree sexual abuse. Defendant DeKalb served as plain-
tiffs appointed counsel at his criminal trial. Although that
prosecution occurred outside the applicable statute oflimita-
tions, DeKalb did not raise the statute oflimitations issue in
the trial court; neither did plaintiffs appellate counsel raise
that issue on appeal. The Court of Appeals affirmed the con-
victions, and this court denied review. State v. Abbott, 136 Or
App 547, 901 P2d 268, rev den, 322 Or 362 (1995), cert den,
517us1214 (1996).
Plaintiff sought, and the trial court granted, post-
conviction 	relief. 	The 	post-conviction 	court 	found 	that
DeKalb had provided ineffective assistance of counsel by fail-
ing to raise the statute oflimitations issue, but that plaintiffs
"many other claims" (which presumably included his claims
concerning appellate counsel) were not well taken. The state
appealed, the Court of Appeals affirmed, and plaintiff peti-
tioned for review in this court. Abbott v. Baldwin, 178 Or App
289, 36 P3d 516 (2001), rev den, 334 Or 75, cert den, 537 US
901 (2002). This court denied review, and the appellate
judgment affirming the post-conviction judgment issued on
May 28, 2002.
The statute of limitations for a legal malpractice
action is two years. See ORS 12.110(1) (setting that limita-
tions period for "injury to the person or rights of another, not
arising on contract, and not especially enumerated in this
chapter"); U.S. Nat'l Bank v. Davies, 274 Or 663, 665-66, 548
P2d 966 (1976) (limitations period of ORS 12.110(1} applies

Cite as 346 Or 306 	309
to legal malpractice actions). On May 21, 2004-just less
than two years after the appellate judgment had issued, but
more than two years after the post-conviction court initially
had granted relief-plaintiff filed the present malpractice
action against DeKalb and the attorneys who had handled
his direct criminal appeal. The state later was substituted as
a defendant in place of appellate counsel, because appellate
counsel had been appointed by the state.1
In the malpractice action, the trial court granted a
motion to dismiss filed by DeKalb and a motion for summary
judgment filed by the state. Relying on Stevens, the trial
court concluded that the malpractice action against both
defendants was barred by the statute of limitations because
plaintiffs exoneration had occurred when the trial court
granted post-conviction relief, not when the appellate judg-
ment later issued. The trial court also agreed with the state
that (1) issue preclusion barred plaintiff from challenging the
effectiveness of appellate counsel because the post-conviction
court had held that appellate counsel had not been ineffec-
tive; and (2) plaintiff could not show that he had been harmed
by appellate counsel's failure to argue the statute of limita-
tions defense because plaintiff himself had presented the
statute of limitations issue to the Court of Appeals in his
pro se brief. Furthermore, the trial court agreed with DeKalb
that the claim for relief against him was barred by the
10-year limitation in ORS 12.115(1).
Plaintiff appealed to the Court of Appeals. In a split,
en bane decision, the Court of Appeals affirmed the trial
court's ruling in favor of DeKalb and the state. Abbott v.
DeKalb, 221 Or App 339, 190 P3d 413 (2008). The majority
rejected the trial court's conclusion that, under Stevens,
plaintiff had been exonerated when the post-conviction court
granted relief. The majority determined that that was not the
appropriate date from which to measure the statute of limi-
tations because the state had appealed the post-conviction
court's judgment to the Court of Appeals. Id. at 343. Instead,
the majority reasoned, exoneration occurred when, after the
Court of Appeals affirmed the post-conviction court's ruling
1 The action against the state also was subject to a two-year statute oflimita-
tions pursuant to a different statute, ORS 30.275(9).

310 	Abbott v. DeKalb
in plaintiffs favor, the state failed to seek review in this
court. At that point, in the majority's view, plaintiffs exon-
eration had become certain; only plaintiffs decision to seek
review from this court prevented the appellate judgment
from issuing. Id. at 343-44. Because plaintiff had not filed his
malpractice action within two years of that date, the majority
concluded that the malpractice action was time-barred.
Id. at 344. Four judges dissented. The dissent contended
that plaintiff had not been exonerated until the appellate
judgment actually had issued. Id. at 346-47 (Edmonds, J.,
dissenting).
We allowed review to consider only the issue dis-
cussed in the Court of Appeals opinion-whether the statute
of limitations for plaintiffs legal malpractice action had
expired under Stevens, 316 Or 221. In allowing review, how-
ever, we did not attach sufficient significance to the sentence
in the 	Court of Appeals' majority opinion stating that,
"[a]lthough plaintiff raises numerous assignments of error,
we reject all but one without discussion." 221 Or App at 342.
The Court of Appeals thus effectively had affirmed the other
holdings of the trial court without opinion.
The issue that divided the Court of Appeals is an
important one. 2 However, the grounds for decision that the
Court of Appeals did not discuss fully support the decision of
the trial court and present independent bases to affirm that
decision, and we do not have the benefit of the Court of
Appeals' analysis of those issues. Given those circumstances,
any opinion in this case on the merits of the statute of limi-
tations question would address an issue that, 	although
significant in the abstract, would not affect the result. We
therefore conclude that our decision to allow review was
improvident.
The petition for review is dismissed as improvi-
dently allowed.
2 The facts of this case particularly reveal the ramifications of the delay neces-
sitated by the rule in Stevens v. Bisham, 316 Or 221, 238, 851P2d556 (1993). The
parties did not ask that we reconsider Stevens in light of those ramifications.