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Ballinger v. Thompson8/23/2005
Before HILL, C.J., and GOLDEN, KITE, VOIGT, and BURKE, JJ.
[ ] Jason Dean Ballinger appeals the district court's order granting Webster and Thompson, LLC, and Marc C. Thompson's (collectively Thompson) motion to dismiss Ballinger's legal malpractice suit. The district court granted the motion finding Ballinger had failed to comply with the statute of limitations. We affirm.
ISSUES
[ ] Ballinger presents the following issues for review:
1. Was Ballinger under "a legal disability" pursuant to Wyo. Stat. 1-3-107(a)(iii) so that his action was timely brought?
2. Was any statute of limitations defense barred under the theory of equitable estoppel for purposes of overcoming a motion to dismiss?
3. Did the statute of limitations begin to run only after "discovery" of the claim and was that within the two-year period, to overcome a motion to dismiss?
4. Should the continuous representation rule be applied to the unique facts of this case to toll the statute of limitations?
Thompson responds with just one issue, "Was the district court correct in ruling that appellant's claims are barred by the statute of limitations?"
FACTS
[ ] Ballinger hired Thompson to represent him individually and as the personal representative and sole beneficiary of the estate of Gladys M. Ballinger. Thompson entered his appearance in the probate case on August 7, 1998. Because Ballinger was incarcerated in the Park County Jail during portions of 1998 and 1999, Thompson took on additional responsibilities for the estate. One of these additional responsibilities was a duty to obtain and maintain insurance for a home in Cody owned by the estate in which Ballinger lived. Unfortunately, the insurance was allowed to lapse, and there was a gap in coverage from June 18, 1999, until July 23, 1999. In explaining the lapse, Thompson claimed he never received a renewal notice. However, insurance company records indicated a renewal notice was sent to Thompson's office address.
[ ] On June 24, 1999, a fight started in the driveway of the Cody home. The fight led to the death of seventeen-year-old Scott Tannehill. Ballinger was at the home at the time of the fight and was charged with accessory to second degree murder. Thompson represented Ballinger in the criminal proceeding stemming from this charge. In December 1999, after changing his plea to nolo contendere, Ballinger was sentenced to a term of incarceration of not less than seven years or more than ten years in the Wyoming State Penitentiary. Ballinger remains incarcerated at this time.
[ ] In February of 2000, an attorney representing the estate of Scott Tannehill contacted Thompson indicating his intent to pursue a wrongful death suit. The attorney wrote:
We are aware of [Ballinger's] ownership of the property where the incident took place. As with any property, it is fair for us to assume that there is a property casualty policy applicable to the property. Those policies provide insurance coverage for incidents of this nature. I would ask you, on behalf of the survivors of Scott Tannehill to please cooperate with us and notify the carrier of our intent to proceed with the claim.
When Thompson contacted the insurance company, it was confirmed there was a period of time when there was no coverage on the property and this gap included the day of the Tannehill incident. A series of letters and explanations then followed; the relevant portions can be summarized as follows:
* On February 15, 2000, Thompson sent Ballinger a copy of a letter addressed to the insurance company regarding the insurance lap
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