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Mashaney v. Board of Indigents' Defense Services

Court of Appeals of Kansas

November 8, 2013

Jason MASHANEY, Appellant,
v.
BOARD OF INDIGENTS' DEFENSE SERVICES, Sarah E. Sweet-McKinnon, and Virginia A. Girard-Brady, Appellees.

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[Copyrighted Material Omitted]

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Syllabus by the Court

1. The Board of Indigents' Defense Services (BIDS), a subordinate governmental agency, lacks the capacity to sue or to be sued in the absence of an authorizing statute. There is no such authorizing statute for BIDS. Thus, BIDS may not be sued as an entity.

2. The four general rules for determining the accrual of a cause of action for attorney malpractice, for the purpose of establishing when the 2-year limitation period of K.S.A. 60-513 commences, are: (1) the occurrence rule (when the negligent act occurred), (2) the damage rule (when plaintiff suffers damages), (3) the discovery rule (when the facts giving rise to the claim are discoverable), and (4) the continuous representation rule (when the attorney-client relationship ends).

3. A criminal defendant's cause of action against his or her lawyer for legal malpractice does not accrue, for the purpose of establishing when the 2-year limitation period of K.S.A. 60-513 commences, until the criminal defendant has been " exonerated" through postconviction relief.

4. Exoneration is not the same as actual innocence. Exoneration occurs when a criminal defendant has his or her conviction overturned and a new trial is ordered.

5. Ordinarily, when the district court ruling on a motion to dismiss considers matters beyond the face of the pleading, the rules relating to summary judgments apply. K.S.A. 60-212(b)(6). But when matters outside the face of the pleading are proper objects of judicial notice, a motion to dismiss need not be treated as a summary judgment motion.

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6. In order to prevail on a legal malpractice claim, a criminal defendant suing his or her trial or appellate counsel must establish at trial by a preponderance of the evidence that he or she was innocent of the charge which formed the basis of the conviction.

7. In Kansas, an Alford plea is characterized as a guilty plea, even though the defendant publicly maintains his or her innocence. A plea of guilty is admission of the truth of the charge and every material fact alleged therein. Kansas does not distinguish between an Alford plea and a guilty plea in terms of their effect on the defendant once he or she enters the plea. See K.S.A. 22-3209(1).

8. Here, the plaintiff in his criminal case entered an Alford plea to amended charges after his original convictions were reversed and remanded for a new trial. In the present legal malpractice case, the plaintiff does not contend that the charges to which he entered his Alford plea were based on facts that were different from the facts that supported his original conviction. Thus, he cannot establish that he was actually innocent of the original charges which led to his convictions. Without such a showing, the plaintiff cannot prevail in this malpractice action and, therefore, the district court did not err in dismissing his claim.

Larry G. Michel and Angela D. Coble, of Kennedy Berkley Yarnevich & Williamson, Chartered, of Salina, for appellant.

Marty M. Snyder, assistant attorney general, for appellee State Board of Indigents' Defense Services.

Timothy J. Finnerty and Charles E. Hill, of Wallace, Saunders, Austin, Brown & Enochs, Chartered, of Wichita, for appellee Sarah Sweet-McKinnon.

Lyndon W. Vix and Sylvia B. Penner, of Fleeson, Gooing, Coulson & Kitch, L.L.C., of Wichita, for appellee Virginia Girard-Brady.

Before ATCHESON, P.J., GREEN and McANANY, JJ.

McANANY, J.

Jason Mashaney's convictions for sex crimes were set aside and a new trial was ordered. Before the retrial Mashaney pled guilty to amended charges. He then sued his criminal defense lawyers for malpractice, but the district court dismissed his claims. Mashaney's appeal raises the following issues: (1) whether the Board of Indigents' Defense Services (BIDS) may be sued for legal malpractice; (2) whether Mashaney's civil malpractice claims against the individual attorneys are barred by our 2-year statute of limitations; (3) whether such malpractice claims are dependent upon Mashaney showing that he was actually innocent of the criminal charges for which he was convicted; and (4) if so, whether an Alford plea of guilty to amended charges foreclosed Mashaney from proving his innocence.

We conclude that (1) BIDS, a subordinate government agency, does not have the capacity to sue or be sued. Therefore, BIDS was properly dismissed as a party. (2) With respect to the statute of limitations issue, Mashaney's cause of action for legal malpractice did not accrue until he obtained postconviction relief. Here, the postconviction relief resulted in Mashaney being granted a new trial. But the retrial did not take place because Mashaney pled guilty to reduced charges. (3) In his legal malpractice case Mashaney would have been required to show that he was actually innocent of the sex crimes for which he was tried and convicted in order to prevail. (4) But Mashaney pled guilty to amended charges, and he cannot show that the factual bases for his guilty pleas were different from the facts that led to his original convictions at trial. Thus, the district court did not err in determining that based upon his guilty pleas Mashaney was foreclosed from proving at a malpractice trial that he was innocent of the acts for which he was originally convicted. Based upon these determinations, we affirm the ultimate ruling of the district court.

Facts and Procedural History

In September 2003, Jason Mashaney was accused of committing indecent sexual acts with his 5-year-old daughter. Mashaney

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was charged in Sedgwick County with aggravated criminal sodomy and two counts of aggravated indecent liberties with a child. After a preliminary hearing, Mashaney was bound over for trial. The court appointed attorney (now defendant) Sarah Sweet-McKinnon to represent him in the criminal proceedings.

Mashaney's first trial resulted in a mistrial. In July 2004, Mashaney was retried and convicted on all three counts. Mashaney moved pro se for posttrial relief, claiming his trial lawyer had been ineffective. The district court appointed counsel for Mashaney and conducted a hearing on his motion. In November 2004, the district court denied Mashaney's motion, and he was sentenced to prison.

Mashaney appealed his convictions to this court where he was represented by attorney (now defendant) Virginia A. Girard-Brady. In April 2007, this court affirmed Mashaney's convictions, and the Supreme Court declined further review. See State v. Mashaney, No. 94,298, 2007 WL 1109456 (Kan.App.2007) (unpublished opinion), rev. denied 284 Kan. 949 (2007).

In April 2008, Mashaney moved for relief under K.S.A. 60-1507 based on ineffective assistance of appellate counsel. The district court denied relief, but in September 2010 our court reversed and remanded for an evidentiary hearing. See Mashaney v. State, No. 101,978, 2010 WL 3731341 (Kan.App.2010) (unpublished opinion). In April 2011, following the mandated evidentiary hearing on Mashaney's motion, the district court set aside Mashaney's convictions. The district court found that due to appellate counsel's deficient performance, Mashaney " ‘ " was prejudiced to the extent that there is a reasonable probability that, but for counsel's deficient performance, the appeal would have been successful." [Citations omitted.]’ State v. Smith, 278 Kan. 45, 51-52, 92 P.3d 1096 (2004)." Mashaney's case was placed back on the trial calendar.

In December 2011, in advance of his retrial and pursuant to a plea agreement with the State, Mashaney entered an Alford plea of guilty to two counts of attempted aggravated battery and one count of aggravated endangering of a child. See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). The court accepted his plea and imposed a 72-month prison sentence to be followed by 12 months of postrelease supervision, a sentence that was somewhat less than the time Mashaney had already served on his original conviction. Mashaney was released from custody.

In January 2012, Mashaney commenced this action for legal malpractice against BIDS, Sweet-McKinnon, and Girard-Brady, claiming that on account of their negligent representation in his criminal case he was " forced to serve nearly eight (8) years in prison which would not have occurred had he received proper representation." Mashaney claimed he was innocent of the charges. He alleged that he " adamantly contested the allegations from the very beginning and strongly denies that he ever abused his young daughter."

Mashaney claimed both economic and noneconomic damages. He claimed that when he was arrested he was employed by his stepfather in a home improvement business and that as a result of his wrongful conviction he " lost eight (8) years of wages and development of his career while improperly imprisoned." He also claimed his imprisonment interfered with his relationship with his children as well as with " several family members and friends who passed away while he was in prison."

BIDS moved to dismiss on the grounds that it lacked the capacity to be sued. Sweet-McKinnon answered the petition, claiming that Mashaney was estopped from pursuing this action by the guilty plea he entered in December 2011. In her answer Girard-Brady claimed estoppel and waiver and contended that Mashaney's claim was barred by the 2-year statute of limitations. These defenses came before the court on motions to dismiss and for judgment on the pleadings, which the court granted.

Mashaney's appeal again brings the matter before us.

BIDS's Capacity to be Sued

BIDS claims that under the rule expressed in

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Hopkins v. State, 237 Kan. 601, 702 P.2d 311 (1985), as a subordinate government agency BIDS lacks the capacity to be sued. Whether BIDS can be sued is a question of law over which our review is unlimited. See American Special Risk Management Corp. v. Cahow, 286 Kan. 1134, 1141, 192 P.3d 614 (2008).

In Hopkins our Supreme Court considered whether the Kansas Highway Patrol may be sued. The court ruled that while the State of Kansas may be sued for the acts of its subordinate governmental agencies, the state's subordinate governmental agencies do not in and of themselves have the capacity to sue or be sued in the absence of an authorizing statute. 237 Kan. at 606, 702 P.2d 311 (citing Erwin v. Leonard, 166 Kan. 630, 203 P.2d 207 [1949]; Dellinger v. Harper County Social Welfare Board, 155 Kan. 207, 124 P.2d 513 [1942]; Murphy v. City of Topeka, 6 Kan.App.2d 488, 630 P.2d 186 [1981] ). The court noted that there are statutes granting the capacity to sue and be sued to the Kansas Turnpike Authority and the Kansas Highway Commission, but there is no such statutory authority for suits by or against the Kansas Highway Patrol. Thus, the Kansas Highway Patrol may not be sued as an entity. Hopkins, 237 Kan. at 606-07, 702 P.2d 311.

Here, the Indigents' Defense Services Act, K.S.A. 22-4501 et seq. , governs the general functions and responsibilities of BIDS. We note that under K.S.A. 22-4520, BIDS is forbidden to make any decisions regarding the handling of a criminal case to which one of its attorneys is assigned. While lawyers engaged by BIDS to provide legal services to indigent criminal defendants may be subject to civil liability for professional negligence under some circumstances, we find no statute or other authority that grants to BIDS as a separate entity the capacity to sue or be sued. Thus, we conclude that BIDS was properly dismissed from the case.

Statute of Limitations

The district court granted judgment on the pleadings to Girard-Brady and Sweet-McKinnon based on Mashaney's failure to commence his malpractice action within the 2-year limitations period found in K.S.A. 60-513(a)(4). The district court determined that the 2-year statute of limitations began to run when it was apparent to Mashaney that his attorneys' malpractice caused him injury, without regard to when he obtained postconviction relief.

We have unlimited review over Mashaney's claim that the district court erred in granting judgment on the pleadings to the lawyer defendants. See Louisburg Building & Development Co. v. Albright, 45 Kan.App.2d 618, 655, 252 P.3d 597 (2011). Further, our unlimited review extends to matters of statutory interpretation, which we have here. See Unruh v. Purina Mills, 289 Kan. 1185, 1193, 221 P.3d 1130 (2009).

In Pancake House, Inc. v. Redmond, 239 Kan. 83, 87, 716 P.2d 575 (1986), the court discussed the four rules for determining the accrual of a cause of action for attorney malpractice: (1) the occurrence rule (when the negligent act occurred), (2) the damage rule (when plaintiff suffers damages), (3) the discovery rule (when the facts giving rise to the claim are discoverable), and (4) the continuous representation rule (when the attorney-client relationship ends).

Under K.S.A. 60-513(b), the applicable statute, Mashaney's legal malpractice claims

" shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party."

Mashaney claims his trial counsel committed malpractice in his criminal trial which resulted in him being wrongfully convicted and wrongfully imprisoned. Looking only to the statute, it would seem that Mashaney's malpractice claim against his trial counsel would have accrued, and the 2-year limitation period would have started to run, in 2004 when he was convicted and sentenced to prison. That is when the fact of injury was reasonably apparent. He did not commence this action until January 2012.

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Mashaney also claims his appellate counsel committed malpractice in not raising in his direct appeal issues that could have resulted in a reversal of his convictions. Again looking only to the statute, it would seem that Mashaney's malpractice claim against his appellate counsel would have accrued, and the 2-year limitation period would have started to run, in September 2007 when, after Mashaney's conviction was affirmed by this court, the Supreme Court denied Mashaney's petition for review and the mandate was issued. Mashaney commenced this action more than 2 years after these dates.

It would seem that applying the rules in Pancake House to Mashaney's claims, his claims of lawyer malpractice were barred by the 2-year statute of limitations. But, in order to avoid the plain reading of K.S.A. 60-513(b), Mashaney relies on the ruling in Canaan v. Bartee, 276 Kan. 116, 72 P.3d 911 (2003), to establish that his causes of action for legal malpractice did not accrue until April 2011 when the district court, ruling on Mashaney's postconviction K.S.A. 60-1507 motion, set aside his conviction and ordered a new trial on account of the ineffective assistance of his counsel. Mashaney commenced this tort action in January 2012, less than a year later.

In Canaan our Supreme Court stated: " [W]e adopt the rule that a person convicted in a criminal action must obtain postconviction relief before maintaining an action alleging malpractice against his former criminal defense attorneys." 276 Kan. at 117, 72 P.3d 911.

Canaan did not involve the statute of limitations. Rather than being asked to decide whether Canaan was too late in commencing his legal malpractice case, the court had to determine whether Canaan commenced his malpractice case too early because his causes of action had not yet accrued.

The timeline in Canaan is as follows:

11/95
Canaan is convicted of first-degree murder, aggravated robbery, and aggravated burglary.
1/98
Canaan files suit against his former trial and appellate counsel and against his trial counsel's investigator, asserting various claims including claims of legal malpractice.
7/98
The Kansas Supreme Court affirms Canaan's convictions.
3/02
The defendants move for summary judgment on Canaan's malpractice claims, arguing that Canaan's causes of action had not yet accrued because he had not been exonerated in any postconviction proceedings in his criminal case. The district court grants summary judgment for defendants on Canaan's malpractice claims. Canaan appeals.
9/02
The district court holds an evidentiary hearing on a K.S.A. 60-1507 motion Canaan filed sometime before 3/02. Canaan claims in the motion that he was denied the effective assistance of counsel at his trial. Following this hearing, the district court finds Canaan did not have ineffective counsel at his trial.

On appeal, our Supreme Court adopted the exoneration rule, finding that Canaan was required to be exonerated through postconviction relief before he could sue his attorneys for legal malpractice. We pause to note that " exoneration" as discussed in Canaan is not the Webster's Dictionary kind, which involves discharging one from legal or moral responsibility. See Webster's Third New International Dictionary 797 (2002). To be exonerated through postconviction relief can consist of having a conviction set aside and a new trial ordered, thereby placing the defendant in continued jeopardy rather than discharging him or her from further criminal proceedings. That is what happened to Mashaney. Further, exoneration is different from actual innocence, as we will discuss later.

The Canaan court made no express ruling about how the exoneration rule affects the commencement date for the running of the statute of limitations in a criminal defendant's legal malpractice action. But the

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Canaan court did discuss the interplay between the statute of limitations and the exoneration rule:

" Canaan also points out that difficulty in applying the statute of limitations has often led courts to reject the exoneration rule. Application of the statute of limitations in legal malpractice cases is troublesome, regardless of the context in which it arises. We have recognized a variety of theories which determine when a cause of action for legal malpractice accrues and when the statute of limitations begins to run and stated that determination of which theory applies depends upon the facts and circumstances of each case. Pancake House, Inc. v. Redmond, 239 Kan. 83, 87, 716 P.2d 575 (1986). In Dearborn Animal Clinic, P.A. v. Wilson, 248 Kan. 257, 270, 806 P.2d 997 (1991), we recognized that, in some cases, accrual of the cause of action is dependent upon resolution of underlying litigation. Such civil cases would share many of the problems inherent in adoption of the exoneration rule. These problems do not outweigh what we view as the sounder policy and rationale of the exoneration rule." Canaan, 276 Kan. at 130-31, 72 P.3d 911.

According to Mashaney, this language in Canaan about the accrual of a cause of action being dependent upon resolution of underlying litigation teaches that his malpractice claim did not accrue so as to begin the running of the 2-year period of the statute of limitations until he received postconviction relief.

But the district court was not convinced that the Canaan court " intended for its adoption of the exoneration rule to establish, by implication, an accrual period for legal malpractice contrary to that set forth in K.S.A. 60-513(b)." Rather, the district court interpreted Canaan as directing that limitations problems created by the exoneration rule be dealt with by the principles discussed in Dearborn Animal Clinic, P.A. v. Wilson, 248 Kan. 257, 806 P.2d 997 (1991).

Dearborn involved a suit against the plaintiff's lawyer for negligently drafting a sales contract. The timeline for the facts of that case is as follows:

11/85
The defendant drafts a sales contract for his client, Dearborn Animal Clinic, P.A. The contract was supposed to provide for the sale of stock to be paid through monthly installments.
12/85
The buyer informs the seller, Dearborn, that he will not purchase the stock and considers the contract as giving him an option to purchase the stock which he chooses not to exercise.
(Dearborn suffers damages at this point and the fact of injury is apparent, but it is unclear whether the damages are the result of the attorney's poor drafting of the contract or the buyer's wrongful refusal to honor the contract.)
2/86
Dearborn, with a new attorney, sues buyer for breach of the contract to purchase the stock.
(The suit is based on the premise that Dearborn has a valid contract for the sale of stock and that the buyer has breached the contract.)
6/86
Dearborn receives interrogatory answers that make it apparent that the sales agreement contained only an option to purchase the stock.
(Dearborn now knows that the act that caused its damages from being unable to sell the stock was its lawyer's negligence, not the buyer's wrongful refusal to honor the contract.)
3/87
District court grants summary judgment to buyer, finding that the contract gave the buyer the option to purchase the stock and the buyer could ...

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