Safine v. Sinnott

[616]

Opinion

STEIN, J.

Stuart A. Safine, an attorney, filed an action against his ex-client, James M. Sinnott, for slightly over $4,000 in legal fees and costs advanced. Sinnott answered, stating as an affirmative defense that he had a claim against Safine contingent upon the outcome of a pending appeal. Sinnott then filed a cross-complaint for attorney malpractice, alleging that Safine’s negligence had caused Sinnott to incur $5,400 in attorney fees, $101.80 in costs, and a prospective loss of $31,890. The superior court, apparently subtracting Safine’s claim from Sinnott’s claim, entered judgment in favor of Sinnott for $28,209.30 plus interest.

Safine appeals, arguing that the court erred in finding that Sinnott’s claim was not barred by the statute of limitations. We agree, concluding that Sinnott was not entitled to take anything by his cross-complaint. We further find, however, that Sinnott was entitled to use his time-barred claim to offset Safine’s claim. It follows that although Sinnott is not entitled to judgment against Safine, Safine is not entitled to any money from Sinnott. We will modify the judgment to reflect our conclusions.

Background

The essential facts are undisputed. As relevant here, it appears that Safine represented Sinnott in two matters, Sinnott v. Pacific Investors (Super. Ct. Contra Costa County, 1979, No. 245321) and Sinnott v. Pricco (Super. Ct. Contra Costa County, 1979, No. 202641). The first of these involved a real estate transaction and resulted in a July 18, 1983, judgment requiring Sinnott to pay over $1 million in order to close escrow. Sinnott paid that amount into escrow on August 5, 1983. On August 8, 1983, Sinnott discovered that the judgment erroneously failed to credit him with $31,890 already paid by him. On December 15, 1983, Safine filed a motion on Sinnott’s behalf, seeking to have the judgment corrected. The motion was denied as untimely.

1

On April 13,1984, Sinnott substituted his current counsel, Christopher Joy, for Safine. Upon a motion brought by Joy, the trial court modified its judgment and entered a corrected judgment on April 25, 1984, giving Sinnott the appropriate credit. On April 10, 1986, the corrected judgment was reversed on appeal because the trial court lacked jurisdiction to modify its judgment. In the meantime, on June 20, 1985, Safine filed his complaint against Sinnott for attorney fees due and owing on both the Pacific Investors and Pricco matters. Sinnott filed his cross-complaint on November 18, 1985.