Therrien v . Sullivan CV-04-031-JM 07/02/04 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Robert Therrien
v. Civil N o . 04-031-JM Opinion N o . 2004 DNH 101 Mark F. Sullivan, Esquire
O R D E R
Defendant moved to dismiss plaintiff’s complaint. Document
no. 3. By agreement, plaintiff filed an amended complaint
deleting the § 1983 count. Document n o . 6. Defendant renews its
motion to dismiss for failure to state a claim as to the legal
malpractice claim and on the basis of the statute of limitations.
Standard of Review
In considering a motion to dismiss for failure to state a
claim under Fed. R. Civ. P. 12(b)(6), the court takes the facts
alleged in the complaint as true and determines whether “relief
could be granted under any set of facts that could be proved
consistent with the allegations.” Lalonde v . Textron, Inc., 369
F.3d 1 , 6 (1st Cir. 2004) (quoting Swierkiewicz v . Sorema N.A.,
534 U.S. 506, 514 (2002)). Although the standard used is
liberal, the First Circuit has noted that “Rule 12(b)(6) is not
entirely a toothless tiger.” Dartmouth Review v . Dartmouth College, 889 F.2d 1 3 , 16 (1st Cir. 1989). To survive a motion to
dismiss, the complaint must at least “set forth minimal facts as
to who did what to whom, when, where, and why--although why, when
why means the actor’s state of mind, can be averred generally.”
Educadores Puertorriquenos En Accion v . Hernandez, 367 F.3d 6 1 ,
68 (1st Cir. 2004). The court eschews “any reliance on bald
assertions, unsupportable conclusions, and opprobrious epithets.”
Id. (quoting Chongris v . Bd. of Appeals, 811 F.2d 3 6 , 37 (1st
Cir. 1987)).
Background
Plaintiff was charged with one count of aggravated felonious
sexual assault in 1996. Defendant was his defense attorney.
Plaintiff was convicted in March of 1997 and, after serving five
years in jail, was granted a new trial on March 7 , 2002 because
of ineffective assistance of counsel. The state did not
reprosecute the case. Plaintiff brought this lawsuit on January
2 8 , 2004. Plaintiff alleges that defendant represented that he
had the necessary training, ability and competence in the area of
criminal defense to represent plaintiff. Plaintiff further
alleges that defendant:
1. failed to make a complete and sufficient
2 investigation;
2. failed to research and keep informed of applicable
law;
3. failed to make necessary and appropriate
objections at trial;
4. failed to file appropriate evidentiary motions in
limine;
5. failed to preserve issues for appeal;
6. failed to request necessary jury instructions; and
7. otherwise provided constitutionally deficient
representation.
These failures of his duty of care, plaintiff alleges, led to
plaintiff’s conviction (and imprisonment) which was ultimately
set aside. Plaintiff maintains that he is innocent of the crime
charged.
Discussion
1. Failure to State a Claim
The elements of a cause of action for legal malpractice in
New Hampshire in a criminal case are:
. . . (1) an attorney-client relationship, which triggers a duty on the attorney to exercise reasonable care, skill, and knowledge in providing legal services to that
3 client, (2) a breach of that duty, . . . (3) resultant harm legally caused by the breach . . . and (4) . . . , by a preponderance of the evidence, (proof of) actual innocence.
Mahoney v . Shaheen, Cappiello, Stein & Gordon, Pa., 143 N.H. 4 9 1 ,
495-496 (1999).
Plaintiff has clearly and sufficiently set forth that he and
defendant had an attorney-client relationship. Complaint ¶ 5 .
Plaintiff has not only stated that he was innocent (Compl. ¶ 9 )
but has alleged that “the case was resolved in . . . (his)
favor . . .” from which innocence may be inferred. Therefore,
the first and fourth elements are readily shown to be
sufficiently alleged. The third element is even more readily
seen. The harm caused was (a) a wrongful conviction, (b) a
sentence of incarceration, (c) imprisonment, (d) attorney’s fees,
(e) emotional distress, (f) psychological trauma and (g)
unspecified financial losses. Finally, the breach of duty of
care is sufficiently factually alleged in seven respects as set
forth above. While the amended complaint sets forth only minimal
facts as to some elements it is sufficient to state a claim upon
which relief may be granted.1
1 Defendant makes much of plaintiff’s erroneous claim of res judicata. The inclusion of that claim is not a basis for dismissal.
4 2. Statute of Limitations
New Hampshire’s statute of limitations for personal actions
is three years. N.H. RSA 508:4I. This statute applies to legal
malpractice cases. Furbush v . McKittrick, 149 N.H. 426, 430
(2003). An action “must be brought within three years of when it
arose.” Pichowicz v . Watson Ins. Agency, 146 N.H. 166, 167
(2001). It arises when all the elements of the cause of action
are present. Id.
It is clear that the following elements of plaintiff’s
malpractice claim occurred on or about the time of the March 1997
conviction:
1. attorney-client relationship existed;
2. a duty of due care existed;
3. the alleged breaches occurred; and
4. harm had resulted.
Whether the statute of limitations bars this action turns on when
the “actual innocence” element of plaintiff’s malpractice claim
was established.
The New Hampshire Supreme Court has not ruled on the
question of whether an existing conviction precludes a legal
malpractice claim in a criminal case. It is clear that the court
5 did not join the line of cases that require the plaintiff to
demonstrate “exoneration,” but that does not mean that an
existing conviction is not a bar to a legal malpractice claim in
an “actual innocence” jurisdiction. Even in jurisdictions which
do not require exoneration, the doctrine of collateral estoppel
prevents a legal malpractice claim from accruing until the
conviction is at least vacated. The Seventh Circuit, for
example, found that under Illinois law legal malpractice in a
criminal case requires proof of actual innocence. Levine v .
Kling, 123 F.3d 5 8 0 , 582 (7th Cir. 1997); Woidtke v . S t . Clair
County, Illinois, 335 F.3d 5 5 8 , 562 (7th Cir. 2003). As the
court made clear:
It is the existence of an outstanding conviction, not the absence of a subsequent acquittal, that prevented the plaintiff from maintaining that is actually innocent.
Id. Woidtke, 335 F.3d at 565. Therefore, a plaintiff in a
malpractice case arising from a criminal conviction is
collaterally estopped from demonstrating actual innocence because
of the existence of an outstanding conviction.
Collateral estoppel applies under New Hampshire law where
the following elements are established:
the issue subject to estoppel must be
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Therrien v . Sullivan CV-04-031-JM 07/02/04 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Robert Therrien
v. Civil N o . 04-031-JM Opinion N o . 2004 DNH 101 Mark F. Sullivan, Esquire
O R D E R
Defendant moved to dismiss plaintiff’s complaint. Document
no. 3. By agreement, plaintiff filed an amended complaint
deleting the § 1983 count. Document n o . 6. Defendant renews its
motion to dismiss for failure to state a claim as to the legal
malpractice claim and on the basis of the statute of limitations.
Standard of Review
In considering a motion to dismiss for failure to state a
claim under Fed. R. Civ. P. 12(b)(6), the court takes the facts
alleged in the complaint as true and determines whether “relief
could be granted under any set of facts that could be proved
consistent with the allegations.” Lalonde v . Textron, Inc., 369
F.3d 1 , 6 (1st Cir. 2004) (quoting Swierkiewicz v . Sorema N.A.,
534 U.S. 506, 514 (2002)). Although the standard used is
liberal, the First Circuit has noted that “Rule 12(b)(6) is not
entirely a toothless tiger.” Dartmouth Review v . Dartmouth College, 889 F.2d 1 3 , 16 (1st Cir. 1989). To survive a motion to
dismiss, the complaint must at least “set forth minimal facts as
to who did what to whom, when, where, and why--although why, when
why means the actor’s state of mind, can be averred generally.”
Educadores Puertorriquenos En Accion v . Hernandez, 367 F.3d 6 1 ,
68 (1st Cir. 2004). The court eschews “any reliance on bald
assertions, unsupportable conclusions, and opprobrious epithets.”
Id. (quoting Chongris v . Bd. of Appeals, 811 F.2d 3 6 , 37 (1st
Cir. 1987)).
Background
Plaintiff was charged with one count of aggravated felonious
sexual assault in 1996. Defendant was his defense attorney.
Plaintiff was convicted in March of 1997 and, after serving five
years in jail, was granted a new trial on March 7 , 2002 because
of ineffective assistance of counsel. The state did not
reprosecute the case. Plaintiff brought this lawsuit on January
2 8 , 2004. Plaintiff alleges that defendant represented that he
had the necessary training, ability and competence in the area of
criminal defense to represent plaintiff. Plaintiff further
alleges that defendant:
1. failed to make a complete and sufficient
2 investigation;
2. failed to research and keep informed of applicable
law;
3. failed to make necessary and appropriate
objections at trial;
4. failed to file appropriate evidentiary motions in
limine;
5. failed to preserve issues for appeal;
6. failed to request necessary jury instructions; and
7. otherwise provided constitutionally deficient
representation.
These failures of his duty of care, plaintiff alleges, led to
plaintiff’s conviction (and imprisonment) which was ultimately
set aside. Plaintiff maintains that he is innocent of the crime
charged.
Discussion
1. Failure to State a Claim
The elements of a cause of action for legal malpractice in
New Hampshire in a criminal case are:
. . . (1) an attorney-client relationship, which triggers a duty on the attorney to exercise reasonable care, skill, and knowledge in providing legal services to that
3 client, (2) a breach of that duty, . . . (3) resultant harm legally caused by the breach . . . and (4) . . . , by a preponderance of the evidence, (proof of) actual innocence.
Mahoney v . Shaheen, Cappiello, Stein & Gordon, Pa., 143 N.H. 4 9 1 ,
495-496 (1999).
Plaintiff has clearly and sufficiently set forth that he and
defendant had an attorney-client relationship. Complaint ¶ 5 .
Plaintiff has not only stated that he was innocent (Compl. ¶ 9 )
but has alleged that “the case was resolved in . . . (his)
favor . . .” from which innocence may be inferred. Therefore,
the first and fourth elements are readily shown to be
sufficiently alleged. The third element is even more readily
seen. The harm caused was (a) a wrongful conviction, (b) a
sentence of incarceration, (c) imprisonment, (d) attorney’s fees,
(e) emotional distress, (f) psychological trauma and (g)
unspecified financial losses. Finally, the breach of duty of
care is sufficiently factually alleged in seven respects as set
forth above. While the amended complaint sets forth only minimal
facts as to some elements it is sufficient to state a claim upon
which relief may be granted.1
1 Defendant makes much of plaintiff’s erroneous claim of res judicata. The inclusion of that claim is not a basis for dismissal.
4 2. Statute of Limitations
New Hampshire’s statute of limitations for personal actions
is three years. N.H. RSA 508:4I. This statute applies to legal
malpractice cases. Furbush v . McKittrick, 149 N.H. 426, 430
(2003). An action “must be brought within three years of when it
arose.” Pichowicz v . Watson Ins. Agency, 146 N.H. 166, 167
(2001). It arises when all the elements of the cause of action
are present. Id.
It is clear that the following elements of plaintiff’s
malpractice claim occurred on or about the time of the March 1997
conviction:
1. attorney-client relationship existed;
2. a duty of due care existed;
3. the alleged breaches occurred; and
4. harm had resulted.
Whether the statute of limitations bars this action turns on when
the “actual innocence” element of plaintiff’s malpractice claim
was established.
The New Hampshire Supreme Court has not ruled on the
question of whether an existing conviction precludes a legal
malpractice claim in a criminal case. It is clear that the court
5 did not join the line of cases that require the plaintiff to
demonstrate “exoneration,” but that does not mean that an
existing conviction is not a bar to a legal malpractice claim in
an “actual innocence” jurisdiction. Even in jurisdictions which
do not require exoneration, the doctrine of collateral estoppel
prevents a legal malpractice claim from accruing until the
conviction is at least vacated. The Seventh Circuit, for
example, found that under Illinois law legal malpractice in a
criminal case requires proof of actual innocence. Levine v .
Kling, 123 F.3d 5 8 0 , 582 (7th Cir. 1997); Woidtke v . S t . Clair
County, Illinois, 335 F.3d 5 5 8 , 562 (7th Cir. 2003). As the
court made clear:
It is the existence of an outstanding conviction, not the absence of a subsequent acquittal, that prevented the plaintiff from maintaining that is actually innocent.
Id. Woidtke, 335 F.3d at 565. Therefore, a plaintiff in a
malpractice case arising from a criminal conviction is
collaterally estopped from demonstrating actual innocence because
of the existence of an outstanding conviction.
Collateral estoppel applies under New Hampshire law where
the following elements are established:
the issue subject to estoppel must be
6 identical in each action, the first action must have resolved the issue finally on the merits, and the party to be estopped must have appeared in the first action, or have been in privity with someone who did s o .
Simpson v . Calivas, 139 N.H. 1 , 7 (1994). Here, the guilt
(innocence) issue is the same. The plaintiff’s conviction was on
the merits and he appeared in the first action. Under New
Hampshire’s clearly established collateral estoppel doctrine,
plaintiff was barred from maintaining his actual innocence in
this legal malpractice suit until his conviction was set aside by
the grant of a new trial. He has not been exonerated, but the
impediment to this suit was removed and the last of the element
of his malpractice claim, actual innocence, was present. The
statute of limitations did not begin to run until plaintiff was
granted a new trial on March 7 , 2002. Accordingly, this lawsuit,
filed on January 2 8 , 2004, was brought within the three-year
statute of limitations.
The motions to dismiss (document nos. 3 and 7 ) are denied.
SO ORDERED.
James R. Muirhead United States Magistrate Judge Date: July 2 , 2004
7 cc: Richard Bell, Esq. Sven D. Wiberg, Esq.