Boehler v. Shumake

MEMORANDUM OPINION GARRETT, Judge: Beverly Ann Boehler (Boehler) sued her former attorney, David Shumake (Shu-make), his partner, Douglas Hilbert, and their partnership (collectively, Appellees). She alleged malpractice, negligence and resulting financial injury. In her original petition, filed on June 14, 1990, Shumake was the only Defendant. She filed an amended petition on October 30, 1990, adding Hilbert and the partnership as Defendants. Appellees moved for summary judgment on two grounds. First, they claimed that no negligence or malpractice had been committed; and, second, they alleged Boehler’s action was barred by the Statute of Limitations. Boehler responded, and also requested leave to file an amended petition alleging other negligent acts and additional resulting damage. The court denied leave to amend, sustained Appellees’ motion, and entered judgment for Appellees and against Boehler. She appeals. Shumake represented Boehler in a divorce case. Shortly before the entry of the divorce decree on March 24, 1981, her husband asked her to execute a second mortgage on the home she was to receive under a contemplated property agreement in order for him to consolidaté debts. She asked Shumake for advice. She claims he was negligent in not telling her that her ex-husband could discharge his obligation on that debt in bankruptcy. Boehler also claims Shumake was negligent because he did advise her, at the time she agreed to [241] the divorce decree, that her ex-husband’s obligation under that decree to hold her harmless on the second mortgage could not be discharged in bankruptcy. In the discovery phase of this case, the evidence was disputed as to Shumake’s advice. The dispute was whether she asked about bankruptcy and what he said or did not say. It was undisputed that Shumake told Boehler that he would not sign the second mortgage, and, in effect, advised her not to do so, and she signed it in opposition to the advice she had been given, even though the advice may not have been based on bankruptcy law. Boehler also said Shumake should have drafted the decree so that this obligation was not subject to discharge. Almost nine years after the decree was entered, the ex-husband obtained a discharge in bankruptcy, and Boehler was forced to pay the debt in order to keep her property. By the rejected amendment to her petition, Boeh-ler also claimed Shumake was negligent in advising her that she was not entitled to support alimony. The court based its ruling on two alternative conclusions. First, the court determined the Statute of Limitations had run, and second, it found summary judgment appropriate because.Boehler’s response to the motion did not fully comply with Rule 13, Rules for District Courts, 12 O.S.1991, Ch. 2, App. Boehler contends the court erred in failing to consider her response to Shumake’s Motion for Summary Judgment. She states the court granted summary judgment to Shumake because of her failure to comply with the technical requirements of Rule 13. She also contends there was misconduct by the attorney for Shumake, and the alleged misconduct is a ground for a new trial. Because we find the underlying negligence action to be barred by the Statute of Limitations, it is unnecessary to consider these contentions of error. Appellees contend the two-year Statute of Limitations ran prior to Boeh-ler’s suit, because she knew “as early as November, 1986, that the second mortgage could be discharged in bankruptcy,” citing Funnell v. Jones, 737 P.2d 105 (Okl.1985, cert. denied, 484 U.S. 853, 108 S.Ct. 158, 98 L.Ed.2d 113 (1987). In November, 1986, Shumake advised Boehler the debt could be discharged in bankruptcy. According to Appellees, the Statute of Limitations began to run from the date the alleged negligent act occurred, or, from the date the complaining party should have known of the act alleged to be negligent. There is no allegation of fraudulent concealment by Shumake of the purported error. Boehler counter-argues that the statute did not begin to run until she sustained damage as a result of the negligent act. She claims Shumake’s negligence caused her no damage until her ex-husband’s obligation to pay the second mortgage was discharged in bankruptcy on November 23, 1988, less than two years prior to the filing of her petition and amended petition. The limitations period applicable to actions for legal negligence is the two-year period provided under 12 O.S.1991 § 95 (Third). Our question is whether it begins to run at the time of the occurrence of the alleged negligent act or omission, or from the time the client knew or should have known of the act complained of, or from the time the client actually sustains damage or injury. The Supreme Court, in Funnell v. Jones, supra, answered this question. At 737 P.2d page 107, the Court said: In Oklahoma, an action for malpractice, whether medical or legal, though based on a contract of employment, is an action in tort and is governed by the two-year statute of limitations at 12 O.S.A.1981, § 95 Third. (Seanor v. Browne, 154 Okl. 222, 7 P.2d 627 (1932). This limitation period begins to run from the date the negligent act occurred or from the date the plaintiff should have known of the act complained of. (McCarroll v. Doctors General Hospital, 664 P.2d 382 (Okl.1983). The period may be tolled, however, by concealment by the attorney of the negligent acts which have injured the client. [242] In effect, we are asked to ignore or overrule Funnell. However, to do that would lead to outlandish possibilities. If Boeh-ler’s contentions are upheld, an attorney who gave legal advice in 1950 or 1960, but the client was not “injured” by that advice until 1993, could be successfully sued for that thirty or forty year old advice. The rule applicable to malpractice, either legal or medical, as set out in Funnell, does not allow such a scenario. The trial court correctly held Boehler’s action to be barred by the Statute of Limitations. AFFIRMED. JONES, J., concurs. ADAMS, P.J., concurs in part & dissents in part.