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Duncan v. Campbell2/24/1997
PICKARD, Judge.
{1} This is a legal malpractice, breach of contract, and deceit action brought by a former criminal defendant (Plaintiff or Duncan) against the lawyers who defended him (Defendants). The issues we address concern the commencement of the statute of limitations in such actions. The district court granted Defendants' motion to dismiss because Plaintiff's action was not brought in a timely fashion. Except for a portion of the deceit action, we agree with the district court and hold that the ordinary rules governing the running of the statute of limitations apply to legal malpractice and related actions brought by former criminal defendants. We further hold that, to the extent that any different rules may apply to malpractice actions in the criminal area, those different rules do not necessarily impact the statute of limitations. Accordingly, we affirm the dismissal of the malpractice, breach of contract, and a portion of deceit counts of this case. We also reverse a portion of the deceit claim.
FACTS
{2} Defendants moved to dismiss based on their contention that the defense of statute of limitations was clearly apparent from the face of Plaintiff's complaint. See . Under these circumstances, we accept as true all of the allegations of the complaint, from which we summarize the following recitation of the facts. See ), cert. denied, 119 N.M. 20, 888 P.2d 466 (1994).
{3} Plaintiff was charged with and convicted of multiple counts of criminal sexual penetration and incest. Defendants were retained to represent him. Defendant Miller was the actual trial counsel. Other defendants included Miller's partners and law firm in Texas and local New Mexico counsel with whom he associated. The trial and conviction occurred in December 1985. At that time, Plaintiff knew that Defendants did not represent him to his satisfaction and, in particular, that there were alibi witnesses that were neither investigated nor presented. Plaintiff was sentenced to a prison term of twenty-five years. His conviction was affirmed on appeal in December 1986. In an unpublished opinion, this Court rejected Plaintiff's contention of ineffective assistance of counsel because the record did not contain any indication of whether the alibi defense was investigated or not; the record simply showed that no alibi defense was presented.
{4} Plaintiff filed a habeas corpus proceeding in state district court in February 1989. An evidentiary hearing was held in February 1991. At the evidentiary hearing, Plaintiff first became aware that Defendants did not present the alibi defense because Defendant Miller did not properly give notice of the defense and he concealed that fact from Plaintiff because he wanted to avoid embarrassment to himself. A portion of the deceit count arises out of these facts, and it involves Defendant Miller only.
{5} The district court granted habeas corpus relief in June 1991 based on Plaintiff's allegation of ineffective assistance of counsel. The State appealed the district court's order, and the Supreme Court affirmed in February 1993. See . The order on the mandate granted Plaintiff a new trial in April 1993. For various reasons, the State chose not to retry Plaintiff, and he was released from prison. He filed his malpractice action in February 1994.
Discussion
{6} The issue we address is whether Plaintiff's malpractice, breach of contract, and deceit action accrued at the time Plaintiff knew or should have known of the facts constituting the basis for the claims or whether it did not accrue until Plaintiff was granted relief from his criminal convictions. Before discussing that specific issue, we set out the statute
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