Therrien v . Sullivan CV-04-031-SM 03/14/05 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Robert Therrien, Plaintiff
v. Civil N o . 04-31-SM Opinion N o . 2005 DNH 040 Mark F. Sullivan, Defendant
O R D E R
In 1996, plaintiff, Robert Therrien, was charged with one
count of aggravated felonious sexual assault, for having
allegedly forced his first-grade daughter to perform fellatio on
him. Therrien retained the defendant, Mark Sullivan, Esq., to
represent him in defending against that charge. Following a jury
trial, Therrien was convicted and sentenced to seven and one-half
to fifteen years in state prison. That conviction was affirmed
on appeal.
Subsequently, however, Therrien moved for, and was granted,
a new trial on grounds that Sullivan provided constitutionally
deficient representation. In granting Therrien’s requested
relief, the state court concluded that Sullivan failed to file appropriate pretrial motions in limine seeking to prevent the
State from introducing evidence of Therrien’s prior bad acts, and
failed to properly object to the introduction of that prejudicial
evidence at trial.
Therrien then filed this civil suit against Sullivan,
invoking this court’s diversity jurisdiction. In the sole count
of his complaint, Therrien asserts claims for “legal malpractice,
negligence, breach of contract, fraud and other [unspecified]
causes of action arising out of [Sullivan’s] deficient
representation of Plaintiff.” Amended complaint at para. 1 .
Sullivan moves to dismiss Therrien’s claims, saying his complaint
fails to state a claim upon which relief may be granted and that
those claims are barred by the pertinent statute of limitations.
In the alternative, Sullivan moves this court to certify the
potentially dispositive statute of limitations question to the
New Hampshire Supreme Court. Therrien objects.
Standard of Review
When ruling on a motion to dismiss under Fed. R. Civ. P.
12(b)(6), the court must “accept as true the well-pleaded factual
2 allegations of the complaint, draw all reasonable inferences
therefrom in the plaintiff’s favor and determine whether the
complaint, so read, sets forth facts sufficient to justify
recovery on any cognizable theory.” Martin v . Applied Cellular
Tech., 284 F.3d 1 , 6 (1st Cir. 2002). Dismissal is appropriate
only if “it clearly appears, according to the facts alleged, that
the plaintiff cannot recover on any viable theory.” Langadinos
v . American Airlines, Inc., 199 F.3d 6 8 , 69 (1st Cir. 2000).
Notwithstanding this deferential standard of review,
however, the court need not accept as true a plaintiff’s “bald
assertions” or conclusions of law. See Resolution Trust Corp. v .
Driscoll, 985 F.2d 4 4 , 48 (1st Cir. 1993) (“Factual allegations
in a complaint are assumed to be true when a court is passing
upon a motion to dismiss, but this tolerance does not extend to
legal conclusions or to ‘bald assertions.’”) (citations omitted).
See also Chongris v . Board of Appeals, 811 F.2d 3 6 , 37 (1st Cir.
1987).
3 Factual Background
The relevant factual background is described in detail in
the New Hampshire Supreme Court’s opinion affirming Therrien’s
criminal conviction. State v . Therrien, 144 N.H. 433 (1999)
(“Therrien I ” ) . Only an abbreviated recitation of the pertinent
facts is necessary here.
While living in Portsmouth, New Hampshire, Therrien
allegedly forced his first-grade daughter to perform fellatio on
him. Soon thereafter, the family moved to Maine. In 1995, the
victim informed her mother about the assault that had allegedly
occurred earlier in Portsmouth. Therrien was charged with that
assault, but before he was brought to trial in New Hampshire, he
was tried for other alleged sexual assaults against his daughter
in Maine. Therrien was acquitted of those charges.
At his subsequent trial on the Portsmouth charge, the jury
was allowed to hear evidence of Therrien’s alleged sexual
assaults against his daughter in Maine. Defense counsel was not,
however, permitted to introduce evidence that Therrien had been
acquitted of those charges. Additionally, over defense counsel’s
4 objection, the jury was allowed to hear testimony from the
victim’s social worker, who testified that Therrien had abused
the victim until she was thirteen years old. In March of 1997,
Therrien was convicted of aggravated felonious sexual assault.
On April 2 5 , 1997, he was sentenced to serve seven and one-half
to fifteen years in prison.
On direct appeal to the New Hampshire Supreme Court,
Therrien, represented by different counsel, asserted that the
trial court erred in admitting evidence of other bad acts (i.e.,
the alleged sexual assaults that occurred in Maine), without
permitting him to introduce evidence that he had been acquitted
of those charges. He also challenged the trial court’s decision
to allow the victim’s therapist to testify about multiple
incidents of abuse. The state supreme court affirmed Therrien’s
conviction, concluding that the victim’s testimony about sexual
assaults that allegedly took place in Maine amounted to harmless
error. It also concluded that Therrien failed to preserve for
appellate review his objections t o : (1) the court’s ruling
precluding introduction of evidence of his acquittal of the Maine
5 charges; and (2) introduction of the social worker’s testimony.
See Therrien I .
Therrien then sought collateral relief in the state trial
court, moving for a new trial. He asserted that he had been
denied effective assistance of counsel at his trial. The
superior court denied that motion, concluding that counsel
provided constitutionally adequate representation. The state
supreme court vacated that holding, reasoning that the trial
court should have conducted an evidentiary hearing on the matter
prior to ruling. The case was transferred to a new judge, an
evidentiary hearing was held, and the court determined that
Sullivan did, in fact, provide constitutionally deficient
representation:
The court finds that Sullivan’s representation of defendant at trial was deficient, as he failed to properly prepare for, attempt to exclude, try to mitigate, or even preserve for appeal the issue of defendant’s inherently prejudicial prior bad acts.
State v . Therrien, N o . 96-S-541 (N.H. Super. C t . May 7 , 2002)
(“Therrien I I ” ) . Accordingly, the court vacated Therrien’s
conviction and granted his motion for a new trial. The State,
6 however, declined to re-prosecute Therrien, perhaps because he
had already served approximately five years in prison.
On January 2 8 , 2004, Therrien filed this diversity action
against Sullivan, asserting that he is actually innocent of the
charges brought against him and saying that Sullivan’s deficient
representation proximately caused his allegedly wrongful
conviction and incarceration.1 As noted above, Sullivan moves to
dismiss Therrien’s one-count complaint on grounds that it is
barred by the applicable limitations period.
Discussion
I. Essential Elements of a Viable Claim.
Under New Hampshire law, a plaintiff in a traditional civil
legal malpractice case must prove:
(1) that an attorney-client relationship existed, which placed a duty upon the attorney to exercise reasonable professional care, skill and knowledge in providing legal services to that client; (2) a breach of that
1 It is appropriate, in this context, to note that no court has determined that Therrien was actually innocent of the criminal charge against him; his conviction was set aside on other grounds, and the charges were then dropped as a matter of prosecutorial discretion.
7 duty; and (3) resultant harm legally caused by that breach.
Furbush v . McKittrick, 149 N.H. 426, 432 (2003). In a criminal
legal malpractice action - one in which the plaintiff asserts
that counsel provided deficient representation in a criminal
proceeding - the plaintiff must also demonstrate that he or she
was “actually innocent” of the conduct giving rise to the
criminal charges.
While [a criminal malpractice claim] requires all the proof essential to a civil malpractice claim, a criminal malpractice action will fail if the claimant does not allege and prove, by a preponderance of the evidence, actual innocence. It is not sufficient for a claimant to allege and prove that if counsel had acted differently, legal guilt would not have been established. As a matter of law, the gateway to damages will remain closed unless a claimant can establish that he or she i s , in fact, innocent of the conduct underlying the criminal charge.
Mahoney v . Shaheen, Cappiello, Stein & Gordon, P.A., 143 N.H.
491, 496 (1999) (emphasis in original).
Here, Therrien’s complaint plainly sets forth each of the
essential elements of a viable claim for criminal legal
malpractice. Whether he can actually prove each of those
8 elements, and whether he can demonstrate a causative link between
Sullivan’s conduct and Therrien’s criminal conviction, see, e.g.,
Carbone v . Tierney, __ N.H. __, 864 A.2d 308 (2004), are not
issues that are appropriate for resolution on a motion to
dismiss. See, e.g., Gorski v . N.H. Dep’t of Corr., 290 F.3d 466,
472 (1st Cir. 2002) (“The issue presently before u s , however, is
not what the plaintiff is required ultimately to prove in order
to prevail on her claim, but rather what she is required to plead
in order to be permitted to develop her case for eventual
adjudication on the merits.”) (emphasis in original).
II. Statute of Limitations and Tolling.
Malpractice actions are governed by N.H. Rev. Stat. Ann.
(“RSA”) 508:4, which establishes a three-year limitations period
for all personal injury actions. See Furbush, 149 N.H. at 430.
“A cause of action arises once all the necessary elements are
present.” Shaheen, Cappiello, Stein & Gordon, P.A. v . Home Ins.
Co., 143 N.H. 3 5 , 40 (1998) (citation and internal punctuation
omitted). Accordingly, a cause of action for legal malpractice
accrues when “an attorney breaches a professional duty and
damages occur as a result,” Id. (emphasis in original). S o , an
9 action to recover for alleged criminal legal malpractice must be
brought within three years of that coincidence.
In this case, Sullivan’s breach of professional duty
consisted of his failure to adequately prepare for, and address
at trial, the prior bad acts evidence offered against Therrien.
See Complaint at para. 7 . See also Therrien I I . That alleged
malpractice first caused harm to Therrien when he was convicted
(wrongly, according to Therrien) of aggravated felonious sexual
assault. The harm associated with Sullivan’s alleged malpractice
was, therefore, manifest by December 1 3 , 1999, when the New
Hampshire Supreme Court affirmed Therrien’s conviction.
Therrien was certainly aware of his potential malpractice
claim against Sullivan, at the very latest, when Therrien filed
his motion for a new trial, on March 2 , 2000. In that motion,
Therrien alleged, among other things, that “The prejudice from
trial counsel’s deficient performance is palpable. . . . If
proper arguments had been made by [Attorney Sullivan], there is a
reasonable probability that either the verdict would have been
different, or that M r . Therrien’s conviction would have been
10 reversed on appeal.” Exhibit A to defendant’s memorandum,
Therrien’s motion for new trial at 1 9 . Plainly, by that time,
Therrien knew or believed that: (1) he was actually innocent of
the charge against him; (2) he was, nevertheless, convicted of
that charge; and (3) Attorney Sullivan had not properly objected
to (or preserved issues for appeal related to) the admission of
prejudicial bad acts evidence, preclusion of evidence of the
Maine acquittals, and admission of the social worker’s testimony.
Thus, he was aware of both Sullivan’s alleged malpractice and the
causal link between that alleged malpractice and his wrongful
conviction.
In short, once his conviction was affirmed on appeal (and
certainly by March 2 , 2000, when he filed his motion for a new
trial), Therrien knew his attorney had allegedly “breach[ed] a
professional duty and damages occur[red] as a result.” Home Ins.
Co., 143 N.H. at 40 (emphasis supplied). It would seem apparent,
then, that Therrien’s criminal malpractice suit, which was filed
on January 2 8 , 2004, is untimely under New Hampshire’s three-year
limitations period.
11 But Therrien asserts that the limitations period did not
begin to run (or should have been tolled) until May 7 , 2002, when
the state trial court determined that Sullivan’s representation
had been constitutionally deficient and granted his motion for a
new trial. Only then, says Therrien, was he legally capable of
establishing an essential element of his criminal malpractice
claim against Sullivan: his actual innocence of the crime of
aggravated felonious sexual assault. Before his conviction was
set aside, he says, principles of collateral estoppel would have
precluded him from denying that he was guilty of the criminal
charge. That is to say, until his conviction was set aside, he
was legally prevented from proving an essential element of his
criminal malpractice claim: that he was actually innocent of the
charges against him.
Accordingly, says Therrien, only after his conviction was
vacated and his motion for new trial granted, were all of the
legal bars to his malpractice claim against Sullivan removed. It
naturally follows, then, that he claims it was at that point that
his malpractice cause of action actually “accrued,” and the time
in which to file began to run. Alternatively, he says the
12 applicable limitations period should be tolled until the
collateral estoppel bar to his proving actual innocence was
lifted (when his motion for new trial was granted, on May 7 ,
2002).
Although the New Hampshire Supreme Court has yet to address
the legal question presented by this case, numerous other state
courts have wrestled with the issue. Among those courts, there
is a decided lack of agreement regarding when a criminal
defendant’s legal malpractice claim actually accrues. Some
courts have adopted what has become known as the “one track
approach,” holding that a criminal malpractice action does not
accrue until the defendant has obtained collateral relief from
his or her conviction. The Supreme Court of Minnesota has, for
example, observed that until appellate (or collateral) relief is
obtained with regard to the underlying conviction, a claim for
criminal malpractice cannot survive a motion to dismiss.
Principles of collateral estoppel would preclude a criminal
defendant from establishing his or her innocence of the
underlying crime - an essential element of the malpractice claim.
13 Our holding today is a recognition that as long as a valid criminal conviction is in place a legal malpractice cause of action based on a defense counsel’s ineffective assistance cannot withstand a Rule 12.02(e) motion to dismiss.
Additionally, by precluding claims from proceeding in which a plaintiff’s criminal conviction has not been overturned and will likely never be overturned, our decision comports with another fundamental policy of the statute of limitations, which is to permit the judicial system to husband its limited resources. Therefore, in this case, the policy against allowing a defendant to collaterally attack a valid criminal conviction in a subsequent civil proceeding outweighs the policy of preventing stale claims.
Noske v . Friedberg, 670 N.W.2d 7 4 0 , 745-46 (Minn. 2003) (citation
and internal punctuation omitted). See also Canaan v . Bartee, 72
P.3d 9 1 1 , 921 (Kan.) (“We hold that before [a criminal defendant]
may sue his attorneys for legal malpractice he must obtain
postconviction relief”), cert. denied, 540 U.S. 1090 (2003);
Adkins v . Dixon, 482 S.E.2d 7 9 7 , 801 (Va. 1997) (“Since
successful termination of [post-conviction collateral challenges
to the conviction] is a part of [plaintiff’s] cause of action, he
has no right of action until that time and, thus, the statute of
limitations does not begin to run until termination of the post-
conviction proceeding.”); Stevens v . Bispham, 851 P.2d 556, 566
14 (Or. 1993) (“We hold that, in order for one convicted of a
criminal offense to bring an action for professional negligence
against that person’s criminal defense counsel, the person must,
in addition to alleging a duty, its breach, and causation, allege
‘harm’ in that the person has been exonerated of the criminal
offense through reversal on direct appeal, through post-
conviction relief proceedings, or otherwise.”).
Other courts, however, have adopted a “two track approach,”
concluding that a malpractice cause of action accrues as soon as
the criminal defendant becomes aware of his or her attorney’s
negligence and the resulting injury (typically, not later than
the date on which the criminal defendant filed his or her
petition seeking collateral relief from the conviction). S o , for
example, the Colorado Supreme Court has held:
[A]n underlying criminal appeal or motion for postconviction relief does not affect the accrual for related legal malpractice claims. Similarly, such criminal matters do not require tolling of the statute of limitations of related malpractice claims. Criminal defendants must file their malpractice actions within two years of discovering the attorney’s negligence and the resulting injury. In the event that a particular criminal defendant must obtain appellate relief to avoid dismissal of a pending malpractice action, or if proceeding with a malpractice action would jeopardize
15 the criminal defendant’s rights, the trial court may stay the malpractice action pending resolution of the criminal case.
Morrison v . Goff, 91 P.3d 1050, 1058 (Colo. 2004). See also
Ereth v . Cascade County, 81 P.3d 463, 469 (Mont. 2003) (“[W]e
hold that a criminal defendant must file a malpractice complaint
within three years of discovering the act, error or omission. . .
[W]ith the claim preserved, the defendant can seek a stay in the
civil suit until the criminal case is resolved.”); Gebhardt v .
O’Rourke, 510 N.W.2d 9 0 0 , 904 (Mich. 1994)(“[Plaintiff] knew that
she had a possible claim against [her criminal defense counsel]
when she moved for a new trial. At this time, she was able to
allege the elements of a malpractice claim.”).
To be sure, a cause of action “accrues” when all elements of
that claim are present. Whether a plaintiff can actually prove
each of those essential elements i s , typically, not relevant for
purposes of determining when the pertinent limitations period has
begun to run. Consequently, the New Hampshire Supreme Court
might well adopt the “two track approach,” concluding that the
running of the limitations period is not affected by the fact
that a defendant in a criminal malpractice action can assert, by
16 way of affirmative defense, that the plaintiff is collaterally
estopped from proving one or more essential elements of his or
her malpractice claim.
On the other hand, there might well be sound policy reasons
that counsel in favor of recognizing that a criminal defendant’s
malpractice cause of action does not accrue (or that the
limitations period is tolled) until the criminal defendant
obtains collateral relief from his or her conviction. Concluding
otherwise might effectively encourage every defendant convicted
of a crime to immediately file a malpractice action against his
or her attorney (and then seek a stay of that proceeding), to
protect against losing the cause of action before he or she
obtains collateral relief from the underlying conviction. That,
in turn, would likely have an adverse impact on the number of
attorneys willing to represent criminal defendants. It would
also put substantial pressure on the State’s limited judicial
resources.
Resolving such fundamental questions of state law is a role
best left to the state courts. When a federal court is called
17 upon to apply state law, it must “take state law as it finds i t :
‘not as it might conceivably b e , some day; nor even as it should
be.’” Kassel v . Gannett Co., 875 F.2d 935, 950 (1st Cir. 1989)
(quoting Plummer v . Abbott Laboratories, 568 F. Supp. 9 2 0 , 927
(D.R.I. 1983)). When state law has been authoritatively
interpreted by the state’s highest court, this court’s role is
straightforward: it must apply that law according to its tenor.
See Kassel, 875 F.2d at 950. When the signposts are somewhat
blurred, the federal court may assume that the state court would
adopt an interpretation of state law that is consistent with
logic and supported by reasoned authority. See Moores v .
Greenberg, 834 F.2d 1105, 1107 n.3 (1st Cir. 1987). However,
this court should b e , and i s , hesitant to blaze new, previously
uncharted state-law trails. Accordingly, when a dispositive
legal question is novel and the state’s law in the area is
unsettled, certification is often appropriate. See Lehman Bros.
v . Schein, 416 U.S. 386, 391 (1974); Arizonans for Official
English v . Arizona, 520 U.S. 4 3 , 76 (1997). See also Acadia Ins.
C o . v . McNeil, 116 F.3d 599, 605 (1st Cir. 1997).
18 An expansive reading of New Hampshire’s statutory
limitations period or the State’s controlling principles of
equitable tolling, particularly when resolution of a novel
question of New Hampshire law implicates substantial public
policy concerns, is a realm best occupied by the New Hampshire
Supreme Court. Because that court has yet to address the
discrete issue presented in this case, and because it is unclear
how it would likely resolve that issue in the context of the
facts as pled, the fairest and most prudent course of action at
this stage is to certify the question. Otherwise, the case would
be dismissed (perhaps wrongly) and the Court of Appeals would
likely have to revisit the question of certification.
Alternatively, if the case were not dismissed, extended and
expensive litigation would proceed, perhaps unnecessarily, on a
claim of questionable viability. Neither situation represents an
efficient use of judicial, or the litigants’, resources.
19 Conclusion
Defendant’s motions to dismiss (documents n o . 3 and 7 ) are
denied. His motion to reconsider denial of motion to dismiss or
in the alternative for certification to the New Hampshire Supreme
Court (document n o . 11) is granted in part and denied in part.2
To the extent it seeks certification to the New Hampshire Supreme
Court of the controlling legal issues presented in this case, the
motion is granted. In all other respects, it is denied.
The court proposes to certify the following questions of law
to the New Hampshire Supreme Court:
1. In the context of a civil action for criminal legal malpractice, see, e.g., Mahoney v . Shaheen, Cappiello, Stein & Gordon, P.A., 143 N.H. 491 (1999), when does a criminal defendant’s cause of action against his or her defense counsel accrue?
2. If the cause of action for criminal legal malpractice accrues upon the criminal defendant’s discovery of the attorney’s alleged negligence and the resulting harm, is the pertinent state limitations period tolled until the criminal defendant obtains collateral relief from
2 For procedural reasons, the court’s original ruling on defendant’s motion to dismiss (document n o . 7 ) , issued by the Magistrate Judge, was vacated after defendant filed his motion to reconsider o r , in the alternative, to certify. Accordingly, both the motion to dismiss and the motion to reconsider are, technically, ripe for review.
20 his or her underlying criminal conviction (thereby avoiding estoppel bars to proving actual innocence)?
See generally N.H. Supr. C t . R. 3 4 . If either party objects to
the form of the questions the court proposes to certify, a
written objection, along with suggested alternatives, shall be
filed on or before April 8, 2005. The court proposes to submit
to the Supreme Court, as its statement of facts, the facts as
presented in this order. If either party objects or wishes the
court to supplement that statement of facts, that party shall
submit an objection and/or proposed statement of supplemental
facts by April 8, 2005. The parties should, of course, bear in
mind that because defendant’s pending motion is one to dismiss,
the court must assume that all properly alleged facts in
plaintiff’s amended complaint (document n o . 6 ) are true.
SO ORDERED.
Steven J. McAuliffe Chief Judge
March 1 4 , 2005
cc: Richard Bell, Esq. Sven D. Wiberg, Esq.