Armstrong v. McMurray

Armstrong v. McMurray

IN THE UTAH COURT OF APPEALS
 

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Donald Armstrong, individually and as a beneficiary of the Donald E. Armstrong Family Trust and the Donald E. Armstrong Charitable Remainder Trust,

Plaintiff and Appellant,

v.

Steven McMurray; and McMurray, McMurray, Dale & Parkinson,

Defendants and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20041010-CA
 

F I L E D
(February 25, 2005)
 

2005 UT App 88

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Third District, Salt Lake Department

The Honorable William B. Bohling

Attorneys: Donald E. Armstrong, Park City, Appellant Pro Se

Stuart H. Schultz and Byron G. Martin, Salt Lake City, for Appellees

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Before Judges Greenwood, Jackson, and Thorne.

PER CURIAM:

    Appellant Donald Armstrong appeals a summary judgment dismissing his complaint for legal malpractice. Appellees Steven McMurray and McMurray, McMurray, Dale & Parkinson (collectively McMurray) move for summary affirmance only on the ground that the action was filed beyond the statute of limitations.

    Armstrong claims that McMurray committed malpractice by not obtaining a decision on motions to vacate one or more Texas judgments prior to the judgment creditor's recording of a lis pendens against his properties on May 6, 1998. He claims that McMurray misled him in a letter dated July 18, 1998 and prevented his discovery of the alleged malpractice until the year 2000. Armstrong asserts that his action, filed on April 1, 2003, was timely because it was filed within four years after any date in the year 2000.

    The position asserted by Armstrong was rejected in Williams v. Howard, 970 P.2d 1282 (Utah 1998). Williams retained counsel to file a personal injury action against Springville City related to an accident that occurred on July 19, 1991. See id. at 1283. Counsel failed to file a notice of claim prior to expiration of the statutory one-year time limit on July 19, 1992. See id. at 1284. Counsel notified Williams of his failure to timely file the notice of claim in a meeting on July 31, 1992. See id. Williams filed a legal malpractice action on July 30, 1996. See id. The district court denied Howard's motion to dismiss the action as time-barred. See id. The Utah Supreme Court reversed, holding that "the four-year statute of limitations started to run on July 19, 1992--the date on which Williams'[s] potential cause of action against Springville City failed because of [counsel's] neglect in filing the notice." Id. "Thus, the four-year statute of limitations expired on July 19, 1996--eleven days before Williams filed [his] action on July 30. 1996." Id.

    The supreme court concluded that before applying the judicially-created discovery rule, "an initial showing must be made that the plaintiff did not know of and could not reasonably have known of the existence of the cause of action in time to file a claim within the limitations period." Id. The court stressed that "the application of the discovery rule does not apply to a plaintiff who becomes aware of his injuries or damages and a possible cause of action before the statute of limitations expires." Id. at 1286.

    Under the undisputed facts of Armstrong's case, we conclude that the discovery rule has no application. The statute of limitations commenced to run on May 6, 1998, when the lis pendens were filed, and expired on May 6, 2002, four years later. Armstrong states in his docketing statement that he discovered the alleged malpractice in the year 2000, well before the statute of limitations expired. He filed his action on April 1, 2003. Accordingly, under Williams, Armstrong is not entitled to rely upon the discovery rule because he does not satisfy the threshold requirements for its application.

    Armstrong's suggestion that the July 18, 1998 letter somehow constituted a concealment of the alleged malpractice is without merit. Furthermore, his admission that he knew the facts supporting his cause of action for alleged legal malpractice in the year 2000 precludes application of the discovery rule as an exception to the general rule that "a statute of limitations begins to run upon the occurrence of the last event required to form the elements of the cause of action." Id. at 1284.

    We grant the motion for summary affirmance and affirm the dismissal, with prejudice, of Armstrong's complaint.

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Pamela T. Greenwood, Judge

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Norman H. Jackson, Judge

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William A. Thorne Jr., Judge