Therrien v . Sullivan CV-04-031-SM 03/14/05 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Robert Therrien, Plaintiff

v. Civil N o . 04-31-SM Opinion N o .

Mark F. Sullivan, Defendant

O R D E R

In 1996, plaintiff, Robert Therrien, was charged with one

count of aggravated felonious sexual assault, for having

allegedly forced his first-grade daughter to perform fellatio on

him. Therrien retained the defendant, Mark Sullivan, Esq., to

represent him in defending against that charge. Following a jury

trial, Therrien was convicted and sentenced to seven and one-half

to fifteen years in state prison. That conviction was affirmed

on appeal.

Subsequently, however, Therrien moved for, and was granted,

a new trial on grounds that Sullivan provided constitutionally

deficient representation. In granting Therrien’s requested

relief, the state court concluded that Sullivan failed to file appropriate pretrial motions in limine seeking to prevent the

State from introducing evidence of Therrien’s prior bad acts, and

failed to properly object to the introduction of that prejudicial

evidence at trial.

Therrien then filed this civil suit against Sullivan,

invoking this court’s diversity jurisdiction. In the sole count

of his complaint, Therrien asserts claims for “legal malpractice,

negligence, breach of contract, fraud and other [unspecified]

causes of action arising out of [Sullivan’s] deficient

representation of Plaintiff.” Amended complaint at para. 1 .

Sullivan moves to dismiss Therrien’s claims, saying his complaint

fails to state a claim upon which relief may be granted and that

those claims are barred by the pertinent statute of limitations.

In the alternative, Sullivan moves this court to certify the

potentially dispositive statute of limitations question to the

New Hampshire Supreme Court. Therrien objects.

Standard of Review

When ruling on a motion to dismiss under Fed. R. Civ. P.

12(b)(6), the court must “accept as true the well-pleaded factual

2 allegations of the complaint, draw all reasonable inferences

therefrom in the plaintiff’s favor and determine whether the

complaint, so read, sets forth facts sufficient to justify

recovery on any cognizable theory.” Martin v . Applied Cellular

Tech.,

, 6 (1st Cir. 2002). Dismissal is appropriate

only if “it clearly appears, according to the facts alleged, that

the plaintiff cannot recover on any viable theory.” Langadinos

v . American Airlines, Inc.,

8 , 69 (1st Cir. 2000).

Notwithstanding this deferential standard of review,

however, the court need not accept as true a plaintiff’s “bald

assertions” or conclusions of law. See Resolution Trust Corp. v .

Driscoll,

4 , 48 (1st Cir. 1993) (“Factual allegations

in a complaint are assumed to be true when a court is passing

upon a motion to dismiss, but this tolerance does not extend to

legal conclusions or to ‘bald assertions.’”) (citations omitted).

See also Chongris v . Board of Appeals,

6 , 37 (1st Cir.

1987).

3 Factual Background

The relevant factual background is described in detail in

the New Hampshire Supreme Court’s opinion affirming Therrien’s

criminal conviction. State v . Therrien,

(1999)

(“Therrien I ” ) . Only an abbreviated recitation of the pertinent

facts is necessary here.

While living in Portsmouth, New Hampshire, Therrien

allegedly forced his first-grade daughter to perform fellatio on

him. Soon thereafter, the family moved to Maine. In 1995, the

victim informed her mother about the assault that had allegedly

occurred earlier in Portsmouth. Therrien was charged with that

assault, but before he was brought to trial in New Hampshire, he

was tried for other alleged sexual assaults against his daughter

in Maine. Therrien was acquitted of those charges.

At his subsequent trial on the Portsmouth charge, the jury

was allowed to hear evidence of Therrien’s alleged sexual

assaults against his daughter in Maine. Defense counsel was not,

however, permitted to introduce evidence that Therrien had been

acquitted of those charges. Additionally, over defense counsel’s

4 objection, the jury was allowed to hear testimony from the

victim’s social worker, who testified that Therrien had abused

the victim until she was thirteen years old. In March of 1997,

Therrien was convicted of aggravated felonious sexual assault.

On April 2 5 , 1997, he was sentenced to serve seven and one-half

to fifteen years in prison.

On direct appeal to the New Hampshire Supreme Court,

Therrien, represented by different counsel, asserted that the

trial court erred in admitting evidence of other bad acts (i.e.,

the alleged sexual assaults that occurred in Maine), without

permitting him to introduce evidence that he had been acquitted

of those charges. He also challenged the trial court’s decision

to allow the victim’s therapist to testify about multiple

incidents of abuse. The state supreme court affirmed Therrien’s

conviction, concluding that the victim’s testimony about sexual

assaults that allegedly took place in Maine amounted to harmless

error. It also concluded that Therrien failed to preserve for

appellate review his objections t o : (1) the court’s ruling

precluding introduction of evidence of his acquittal of the Maine

5 charges; and (2) introduction of the social worker’s testimony.

See Therrien I .

Therrien then sought collateral relief in the state trial

court, moving for a new trial. He asserted that he had been

denied effective assistance of counsel at his trial. The

superior court denied that motion, concluding that counsel

provided constitutionally adequate representation. The state

supreme court vacated that holding, reasoning that the trial

court should have conducted an evidentiary hearing on the matter

prior to ruling. The case was transferred to a new judge, an

evidentiary hearing was held, and the court determined that

Sullivan did, in fact, provide constitutionally deficient

representation:

The court finds that Sullivan’s representation of defendant at trial was deficient, as he failed to properly prepare for, attempt to exclude, try to mitigate, or even preserve for appeal the issue of defendant’s inherently prejudicial prior bad acts.

State v . Therrien, N o . 96-S-541 (N.H. Super. C t . May 7 , 2002)

(“Therrien I I ” ) . Accordingly, the court vacated Therrien’s

conviction and granted his motion for a new trial. The State,

6 however, declined to re-prosecute Therrien, perhaps because he

had already served approximately five years in prison.

On January 2 8 , 2004, Therrien filed this diversity action

against Sullivan, asserting that he is actually innocent of the

charges brought against him and saying that Sullivan’s deficient

representation proximately caused his allegedly wrongful

conviction and incarceration.1 As noted above, Sullivan moves to

dismiss Therrien’s one-count complaint on grounds that it is

barred by the applicable limitations period.

Discussion

I. Essential Elements of a Viable Claim.

Under New Hampshire law, a plaintiff in a traditional civil

legal malpractice case must prove:

(1) that an attorney-client relationship existed, which placed a duty upon the attorney to exercise reasonable professional care, skill and knowledge in providing legal services to that client; (2) a breach of that

1 It is appropriate, in this context, to note that no court has determined that Therrien was actually innocent of the criminal charge against him; his conviction was set aside on other grounds, and the charges were then dropped as a matter of prosecutorial discretion.

7 duty; and (3) resultant harm legally caused by that breach.

Furbush v . McKittrick,

(2003). In a criminal

legal malpractice action - one in which the plaintiff asserts

that counsel provided deficient representation in a criminal

proceeding - the plaintiff must also demonstrate that he or she

was “actually innocent” of the conduct giving rise to the

criminal charges.

While [a criminal malpractice claim] requires all the proof essential to a civil malpractice claim, a criminal malpractice action will fail if the claimant does not allege and prove, by a preponderance of the evidence, actual innocence. It is not sufficient for a claimant to allege and prove that if counsel had acted differently, legal guilt would not have been established. As a matter of law, the gateway to damages will remain closed unless a claimant can establish that he or she i s , in fact, innocent of the conduct underlying the criminal charge.

Mahoney v . Shaheen, Cappiello, Stein & Gordon, P.A.,

(1999) (emphasis in original).

Here, Therrien’s complaint plainly sets forth each of the

essential elements of a viable claim for criminal legal

malpractice. Whether he can actually prove each of those

8 elements, and whether he can demonstrate a causative link between

Sullivan’s conduct and Therrien’s criminal conviction, see, e.g.,

Carbone v . Tierney, __ N.H. __,

(2004), are not

issues that are appropriate for resolution on a motion to

dismiss. See, e.g., Gorski v . N.H. Dep’t of Corr.,

(1st Cir. 2002) (“The issue presently before u s , however, is

not what the plaintiff is required ultimately to prove in order

to prevail on her claim, but rather what she is required to plead

in order to be permitted to develop her case for eventual

adjudication on the merits.”) (emphasis in original).

II. Statute of Limitations and Tolling.

Malpractice actions are governed by N.H. Rev. Stat. Ann.

(“RSA”) 508:4, which establishes a three-year limitations period

for all personal injury actions. See Furbush,

.

“A cause of action arises once all the necessary elements are

present.” Shaheen, Cappiello, Stein & Gordon, P.A. v . Home Ins.

Co.,

5 , 40 (1998) (citation and internal punctuation

omitted). Accordingly, a cause of action for legal malpractice

accrues when “an attorney breaches a professional duty and

damages occur as a result,”

(emphasis in original). S o , an

9 action to recover for alleged criminal legal malpractice must be

brought within three years of that coincidence.

In this case, Sullivan’s breach of professional duty

consisted of his failure to adequately prepare for, and address

at trial, the prior bad acts evidence offered against Therrien.

See Complaint at para. 7 . See also Therrien I I . That alleged

malpractice first caused harm to Therrien when he was convicted

(wrongly, according to Therrien) of aggravated felonious sexual

assault. The harm associated with Sullivan’s alleged malpractice

was, therefore, manifest by December 1 3 , 1999, when the New

Hampshire Supreme Court affirmed Therrien’s conviction.

Therrien was certainly aware of his potential malpractice

claim against Sullivan, at the very latest, when Therrien filed

his motion for a new trial, on March 2 , 2000. In that motion,

Therrien alleged, among other things, that “The prejudice from

trial counsel’s deficient performance is palpable. . . . If

proper arguments had been made by [Attorney Sullivan], there is a

reasonable probability that either the verdict would have been

different, or that M r . Therrien’s conviction would have been

10 reversed on appeal.” Exhibit A to defendant’s memorandum,

Therrien’s motion for new trial at 1 9 . Plainly, by that time,

Therrien knew or believed that: (1) he was actually innocent of

the charge against him; (2) he was, nevertheless, convicted of

that charge; and (3) Attorney Sullivan had not properly objected

to (or preserved issues for appeal related to) the admission of

prejudicial bad acts evidence, preclusion of evidence of the

Maine acquittals, and admission of the social worker’s testimony.

Thus, he was aware of both Sullivan’s alleged malpractice and the

causal link between that alleged malpractice and his wrongful

conviction.

In short, once his conviction was affirmed on appeal (and

certainly by March 2 , 2000, when he filed his motion for a new

trial), Therrien knew his attorney had allegedly “breach[ed] a

professional duty and damages occur[red] as a result.” Home Ins.

Co., 143 N.H. at 40 (emphasis supplied). It would seem apparent,

then, that Therrien’s criminal malpractice suit, which was filed

on January 2 8 , 2004, is untimely under New Hampshire’s three-year

limitations period.

11 But Therrien asserts that the limitations period did not

begin to run (or should have been tolled) until May 7 , 2002, when

the state trial court determined that Sullivan’s representation

had been constitutionally deficient and granted his motion for a

new trial. Only then, says Therrien, was he legally capable of

establishing an essential element of his criminal malpractice

claim against Sullivan: his actual innocence of the crime of

aggravated felonious sexual assault. Before his conviction was

set aside, he says, principles of collateral estoppel would have

precluded him from denying that he was guilty of the criminal

charge. That is to say, until his conviction was set aside, he

was legally prevented from proving an essential element of his

criminal malpractice claim: that he was actually innocent of the

charges against him.

Accordingly, says Therrien, only after his conviction was

vacated and his motion for new trial granted, were all of the

legal bars to his malpractice claim against Sullivan removed. It

naturally follows, then, that he claims it was at that point that

his malpractice cause of action actually “accrued,” and the time

in which to file began to run. Alternatively, he says the

12 applicable limitations period should be tolled until the

collateral estoppel bar to his proving actual innocence was

lifted (when his motion for new trial was granted, on May 7 ,

2002).

Although the New Hampshire Supreme Court has yet to address

the legal question presented by this case, numerous other state

courts have wrestled with the issue. Among those courts, there

is a decided lack of agreement regarding when a criminal

defendant’s legal malpractice claim actually accrues. Some

courts have adopted what has become known as the “one track

approach,” holding that a criminal malpractice action does not

accrue until the defendant has obtained collateral relief from

his or her conviction. The Supreme Court of Minnesota has, for

example, observed that until appellate (or collateral) relief is

obtained with regard to the underlying conviction, a claim for

criminal malpractice cannot survive a motion to dismiss.

Principles of collateral estoppel would preclude a criminal

defendant from establishing his or her innocence of the

underlying crime - an essential element of the malpractice claim.

13 Our holding today is a recognition that as long as a valid criminal conviction is in place a legal malpractice cause of action based on a defense counsel’s ineffective assistance cannot withstand a Rule 12.02(e) motion to dismiss.

Additionally, by precluding claims from proceeding in which a plaintiff’s criminal conviction has not been overturned and will likely never be overturned, our decision comports with another fundamental policy of the statute of limitations, which is to permit the judicial system to husband its limited resources. Therefore, in this case, the policy against allowing a defendant to collaterally attack a valid criminal conviction in a subsequent civil proceeding outweighs the policy of preventing stale claims.

Noske v . Friedberg,

4 0 , 745-46 (Minn. 2003) (citation

and internal punctuation omitted). See also Canaan v . Bartee,

1 1 , 921 (Kan.) (“We hold that before [a criminal defendant]

may sue his attorneys for legal malpractice he must obtain

postconviction relief”), cert. denied,

(2003);

Adkins v . Dixon,

9 7 , 801 (Va. 1997) (“Since

successful termination of [post-conviction collateral challenges

to the conviction] is a part of [plaintiff’s] cause of action, he

has no right of action until that time and, thus, the statute of

limitations does not begin to run until termination of the post-

conviction proceeding.”); Stevens v . Bispham,

, 566

14 (Or. 1993) (“We hold that, in order for one convicted of a

criminal offense to bring an action for professional negligence

against that person’s criminal defense counsel, the person must,

in addition to alleging a duty, its breach, and causation, allege

‘harm’ in that the person has been exonerated of the criminal

offense through reversal on direct appeal, through post-

conviction relief proceedings, or otherwise.”).

Other courts, however, have adopted a “two track approach,”

concluding that a malpractice cause of action accrues as soon as

the criminal defendant becomes aware of his or her attorney’s

negligence and the resulting injury (typically, not later than

the date on which the criminal defendant filed his or her

petition seeking collateral relief from the conviction). S o , for

example, the Colorado Supreme Court has held:

[A]n underlying criminal appeal or motion for postconviction relief does not affect the accrual for related legal malpractice claims. Similarly, such criminal matters do not require tolling of the statute of limitations of related malpractice claims. Criminal defendants must file their malpractice actions within two years of discovering the attorney’s negligence and the resulting injury. In the event that a particular criminal defendant must obtain appellate relief to avoid dismissal of a pending malpractice action, or if proceeding with a malpractice action would jeopardize

15 the criminal defendant’s rights, the trial court may stay the malpractice action pending resolution of the criminal case.

Morrison v . Goff,

(Colo. 2004). See also

Ereth v . Cascade County,

(Mont. 2003) (“[W]e

hold that a criminal defendant must file a malpractice complaint

within three years of discovering the act, error or omission. . .

[W]ith the claim preserved, the defendant can seek a stay in the

civil suit until the criminal case is resolved.”); Gebhardt v .

O’Rourke,

0 0 , 904 (Mich. 1994)(“[Plaintiff] knew that

she had a possible claim against [her criminal defense counsel]

when she moved for a new trial. At this time, she was able to

allege the elements of a malpractice claim.”).

To be sure, a cause of action “accrues” when all elements of

that claim are present. Whether a plaintiff can actually prove

each of those essential elements i s , typically, not relevant for

purposes of determining when the pertinent limitations period has

begun to run. Consequently, the New Hampshire Supreme Court

might well adopt the “two track approach,” concluding that the

running of the limitations period is not affected by the fact

that a defendant in a criminal malpractice action can assert, by

16 way of affirmative defense, that the plaintiff is collaterally

estopped from proving one or more essential elements of his or

her malpractice claim.

On the other hand, there might well be sound policy reasons

that counsel in favor of recognizing that a criminal defendant’s

malpractice cause of action does not accrue (or that the

limitations period is tolled) until the criminal defendant

obtains collateral relief from his or her conviction. Concluding

otherwise might effectively encourage every defendant convicted

of a crime to immediately file a malpractice action against his

or her attorney (and then seek a stay of that proceeding), to

protect against losing the cause of action before he or she

obtains collateral relief from the underlying conviction. That,

in turn, would likely have an adverse impact on the number of

attorneys willing to represent criminal defendants. It would

also put substantial pressure on the State’s limited judicial

resources.

Resolving such fundamental questions of state law is a role

best left to the state courts. When a federal court is called

17 upon to apply state law, it must “take state law as it finds i t :

‘not as it might conceivably b e , some day; nor even as it should

be.’” Kassel v . Gannett Co.,

(1st Cir. 1989)

(quoting Plummer v . Abbott Laboratories,

2 0 , 927

(D.R.I. 1983)). When state law has been authoritatively

interpreted by the state’s highest court, this court’s role is

straightforward: it must apply that law according to its tenor.

See Kassel,

. When the signposts are somewhat

blurred, the federal court may assume that the state court would

adopt an interpretation of state law that is consistent with

logic and supported by reasoned authority. See Moores v .

Greenberg,

, 1107 n.3 (1st Cir. 1987). However,

this court should b e , and i s , hesitant to blaze new, previously

uncharted state-law trails. Accordingly, when a dispositive

legal question is novel and the state’s law in the area is

unsettled, certification is often appropriate. See Lehman Bros.

v . Schein,

(1974); Arizonans for Official

English v . Arizona,

3 , 76 (1997). See also Acadia Ins.

C o . v . McNeil,

(1st Cir. 1997).

18 An expansive reading of New Hampshire’s statutory

limitations period or the State’s controlling principles of

equitable tolling, particularly when resolution of a novel

question of New Hampshire law implicates substantial public

policy concerns, is a realm best occupied by the New Hampshire

Supreme Court. Because that court has yet to address the

discrete issue presented in this case, and because it is unclear

how it would likely resolve that issue in the context of the

facts as pled, the fairest and most prudent course of action at

this stage is to certify the question. Otherwise, the case would

be dismissed (perhaps wrongly) and the Court of Appeals would

likely have to revisit the question of certification.

Alternatively, if the case were not dismissed, extended and

expensive litigation would proceed, perhaps unnecessarily, on a

claim of questionable viability. Neither situation represents an

efficient use of judicial, or the litigants’, resources.

19 Conclusion

Defendant’s motions to dismiss (documents n o . 3 and 7 ) are

denied. His motion to reconsider denial of motion to dismiss or

in the alternative for certification to the New Hampshire Supreme

Court (document n o . 11) is granted in part and denied in part.2

To the extent it seeks certification to the New Hampshire Supreme

Court of the controlling legal issues presented in this case, the

motion is granted. In all other respects, it is denied.

The court proposes to certify the following questions of law

to the New Hampshire Supreme Court:

1. In the context of a civil action for criminal legal malpractice, see, e.g., Mahoney v . Shaheen, Cappiello, Stein & Gordon, P.A.,

(1999), when does a criminal defendant’s cause of action against his or her defense counsel accrue?

2. If the cause of action for criminal legal malpractice accrues upon the criminal defendant’s discovery of the attorney’s alleged negligence and the resulting harm, is the pertinent state limitations period tolled until the criminal defendant obtains collateral relief from

2 For procedural reasons, the court’s original ruling on defendant’s motion to dismiss (document n o . 7 ) , issued by the Magistrate Judge, was vacated after defendant filed his motion to reconsider o r , in the alternative, to certify. Accordingly, both the motion to dismiss and the motion to reconsider are, technically, ripe for review.

20 his or her underlying criminal conviction (thereby avoiding estoppel bars to proving actual innocence)?

See generally N.H. Supr. C t . R. 3 4 . If either party objects to

the form of the questions the court proposes to certify, a

written objection, along with suggested alternatives, shall be

filed on or before April 8, 2005. The court proposes to submit

to the Supreme Court, as its statement of facts, the facts as

presented in this order. If either party objects or wishes the

court to supplement that statement of facts, that party shall

submit an objection and/or proposed statement of supplemental

facts by April 8, 2005. The parties should, of course, bear in

mind that because defendant’s pending motion is one to dismiss,

the court must assume that all properly alleged facts in

plaintiff’s amended complaint (document n o . 6 ) are true.

SO ORDERED.

Steven J. McAuliffe Chief Judge

March 1 4 , 2005

cc: Richard Bell, Esq. Sven D. Wiberg, Esq.

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