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Bleck v. Power


September 4, 2008


Appeal from the Superior Court of the District of Columbia Civil Division (CA-83-07) (Hon. Jennifer Anderson, Trial Judge).

The opinion of the court was delivered by: Glickman, Associate Judge

Argued June 19, 2008

Before REID, GLICKMAN and FISHER, Associate Judges.

Aurore Bleck sued her former attorney, David F. Power, for legal malpractice. Judge Anderson granted Power's motion to dismiss the suit as barred by the three-year statute of limitations. Bleck has appealed, contending that she brought suit within three years of the date on which her cause of action accrued. We disagree with that contention and affirm the judgment of the Superior Court.


As an employee of the National Academy of Sciences between 1986 and 1998, Aurore Bleck was covered by a long-term disability (LTD) insurance policy issued by Teachers' Insurance and Annuity Association of America (TIAA). In 1997, Bleck filed a claim under the policy for LTD benefits. After TIAA determined that she was not "totally disabled" and denied her claim in March 1998, Bleck retained attorney David Power to represent her in seeking reconsideration. On May 14, 1999, however, TIAA rendered a final decision denying Bleck's claim and terminating her benefits. A few months later, Power advised Bleck that her right to sue TIAA on her LTD benefits claim had "matured," and he agreed to bring the lawsuit on her behalf.

Power filed Bleck's suit against TIAA in the United States District Court for the District of Columbia on May 10, 2002. TIAA moved to dismiss the suit as time-barred by a policy provision specifying that any action to recover benefits had to be brought within two years from the end of the time within which proof of total disability was required. The district court granted TIAA's motion on July 29, 2003.*fn1

Bleck discharged Power and hired new counsel, who, on August 12, 2003, moved the district court to reconsider its ruling. The court treated the motion as one "to alter or amend a judgment" pursuant to Federal Rule of Civil Procedure 59 (e) and denied it on January 7, 2004. Bleck did not file an appeal.

Nearly three years later, on January 5, 2007, Bleck commenced the present legal malpractice action against Power in District of Columbia Superior Court. Her complaint alleged "[t]hat [Power] was negligent in failing to file [Bleck's] lawsuit [against TIAA] within the proper time of two (2) years as set forth in the contract" of insurance. Pursuant to Civil Rule 12 (b)(6),*fn2 Power moved to dismiss the complaint as barred by the three-year statute of limitations. Power argued that the limitations period began to run on July 29, 2003, when the district court dismissed Bleck's lawsuit against TIAA. Bleck countered that the statute of limitations did not begin to run on her claim against Power until the district court denied her Rule 59 (e) motion on January 7, 2004. Rejecting Bleck's argument, Judge Anderson granted Power's motion to dismiss Bleck's complaint.


Power's Rule 12 (b)(6) motion to dismiss challenged the legal sufficiency of Bleck's complaint to state a viable claim for relief in light of the statute of limitations. Our review is de novo, presuming the complaint's factual allegations to be true and construing them in the light most favorable to Bleck.*fn3

A legal malpractice action in the District of Columbia must be filed within three years "from the time the right to maintain the action accrues."*fn4 At the earliest, the action accrues "when the plaintiff has sustained some injury, even if the injury occurs prior to the time at which the precise amount of damages can be ascertained."*fn5 The term "injury" encompasses any "loss or impairment of a right, remedy or interest, or the imposition of a liability."*fn6 Under the "discovery rule," however, "a plaintiff's right of action in a legal malpractice case does not accrue until the plaintiff has knowledge of, or by the exercise of reasonable diligence should have knowledge of (1) the existence of the injury; (2) its cause in fact; and (3) some evidence of wrongdoing."*fn7 In addition, under the "continuous representation rule," a client's legal malpractice claim "does not accrue until the attorney's representation concerning the particular matter in issue is terminated"*fn8 (even if the client knows before then that her attorney has made an injurious error).

Applying the foregoing principles to this case, Bleck was injured by Power's alleged negligence when he missed the contractual deadline for commencing an action against TIAA, thereby forfeiting her claim for LTD benefits.*fn9 Bleck could have initiated a malpractice action against Power immediately, without first pursuing her futile suit in federal district court; for in cases where an attorney has missed a deadline for filing suit, "[t]he injury occurred when the client's action was legally subject to dismissal, rather than the actual, but fortuitous, date of dismissal."*fn10 Bleck may not have known of Power's error when he committed it, and he continued to represent her for some time thereafter. But by August 2003, Bleck knew Power had missed the contractual filing deadline, and she had replaced him with new counsel. This was more than three years before she sued Power.

We addressed a similar situation in Weisberg v. Williams, Connolly & Califano.*fn11 The appellants in that case sued their former law firm ("WC&C") for neglecting to file a Federal Tort Claims Act (FTCA) complaint on their behalf against the government before the statute of limitations had run on the major part of their claims. This Court rejected the contention that appellants' cause of action for malpractice accrued only when they received the district court's ruling that their FTCA claims were time-barred. That date, we said, was "well beyond the point at which appellants suffered injury."*fn12 Rather, we held, the appellants' cause of action for malpractice accrued, at the latest, once they had obtained new counsel in the FTCA case and were on notice of the government's assertion of a statute of limitations defense to their FTCA claims.*fn13 Because those two conditions were fulfilled more than three years before appellants sued WC&C, we affirmed the dismissal of their complaint as barred by the statute of limitations governing malpractice actions.

It follows a fortiori that Bleck's malpractice complaint against Power for missing a filing deadline also is time-barred. Just as the appellants' cause of action for malpractice in Weisberg accrued before the district court dismissed their FTCA claims, Bleck's cause of action for malpractice in this case accrued before the district court denied her motion to reconsider its dismissal of her LTD benefits claim.

Bleck argues that the statute of limitations on her malpractice claim was tolled while her timely Rule 59 (e) motion was pending, because there was no final, appealable judgment until the court denied that motion.*fn14 This argument is inconsistent with Weisberg and contrary to the premise that, "[i]n this jurisdiction, a legal malpractice claim becomes ripe when there is 'client knowledge of some injury, its cause, and related wrongdoing.'"*fn15 Thus, in situations where an attorney's error results in a loss at trial, we specifically have declined to adopt an "exhaustion of appeals rule," pursuant to which the cause of action for malpractice would accrue only when the adverse judgment is affirmed on appeal.*fn16 We see no justification for treating a motion asking the trial court to reconsider its adverse ruling differently from an appeal for tolling purposes.*fn17

Bleck quotes our opinion in Wagner for the proposition that her "hope, however faint, that matters could be turned around"*fn18 by her Rule 59 (e) motion was enough, by itself, to prevent the malpractice cause of action from accruing. But Wagner did not hold that the mere possibility of a judicial remedy in a lawsuit impaired by an attorney's negligence automatically tolls the statute of limitations from running on a malpractice claim. Rather, the case turned on the peculiar difficulty of determining whether an attorney's inferior representation in the conduct of litigation is injurious before the outcome of the litigation is known. The plaintiff in Wagner charged that her lawyer mishandled a lawsuit by failing to take appropriate discovery and making other mistakes that did not conclude the litigation. Under those circumstances, we held, "there was no way to articulate any injury that could yield ascertainable damages" before the suit was over; until then, any injury attributable to the attorney's litigation errors "remain[ed] uncertain or inchoate."*fn19 Because the plaintiff's only "demonstrable injury" in Wagner occurred when the jury returned an adverse verdict, we held that her malpractice cause of action did not accrue before that point.*fn20

In contrast, Power's error in the present case was not that he mishandled a lawsuit in progress, but simply that he allowed a filing deadline to expire. His error was akin to that of "an attorney [who] negligently drafts a document, such as a contract or settlement agreement, that fails to protect the client's interests . . . ."*fn21 In those situations, as we recognized in Wagner, "the negligence typically is completed . . . before ensuing litigation confirms the inevitable," and "therefore, the injury is realized at the time of the attorney's error."*fn22

We thus conclude that the injury in this case was realized either in July 2000 or May 2001, when Power let the two-year period elapse without filing suit.*fn23 Taking into account the continuous representation and discovery rules, Bleck's cause of action for malpractice against Power therefore accrued no later than August of 2003 -- more than three years before she sued him in January of 2007. The judgment on appeal dismissing her suit as untimely is, therefore, affirmed.

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