1 10 Del. C . § 8106; David B. Lilly Co. v. Fisher , 800 F. Supp. 1203, 1206 (D. Del. 1992) SUPERIOR COURT of the STATE OF DELAWARE

Jeffrey J Cl ark Kent C ounty Cou rthouse Judge 38 The G reen Dover, DE 19901 Telephone (302) 739-5333 October 5, 2015

Mr. Le o R. Maddo x Mr. Pat rick J. C ollins, E sq. P. O. Box 106 716 North T atnall Str eet, Sui te 300 Lyndh urst, VA 22952 Wilm ington, DE

19803
Re: Leo R. Maddox v. Patrick J. Collins , K15C- 07-006 JJC
Dear Mr . Maddox a

nd Mr. Co llins: The Court has r

eviewed and conside

red the D efendant’ s Motion to D ismiss Plaintiff’s claims w ith prejudice based on the applicabl e statute o f lim

itations. The Court also reviewed Plaintiff’s Motion to Stay. The Court confirmed at the motion hearing that Plai ntiff’ s filing wa s intended to be a resp ons e in oppos ition to Defend ant’s Motion to D ismiss . As expr essed to the

parties i n Court, t a ki ng into considera tion the law, the pleadings, and the circumstances of this case, the Court grants Defenda

nt’s Rul e 12(b)(6 ) Motion to D ismiss with prej udice. T his letter more fully sets fort h the Court ’s reasoning for its deci sion. Legal m alpracti ce and fraudulent ac tions are g overned by Delawar e’s statute of limit ations found

in 10 Del. C. § 8106. 1 The stat ute of lim itations in Delaw are for such claim s is three year s and “begins to run when a plaintiff's claim accrues, which

occurs at the m

oment of the wrongful

act and not

when the e ffects of

the act a re felt.2 Van Lake v. Sorin CRM USA, Inc. , 2013 WL 1087583, at *6 (Del. Super. Feb. 15, 2013).

3 See Maddox v. State , 2012 WL 385600, at *2(De l. Super. Dec . 15, 2011)(where the Supreme Court examined the sa

me alle gations a nd found no merit to an ineffective assistance of counsel claim.) 2 In cases alleging fraud, the cause of action accr ues whe n the fra

ud is succe ssfully perpetrate d.” 2 Fraud

cases m ay inc lude an exc eptionto the gene ral rule of accr ual if the nature of the fr aud is discov ered at a later da te

. In this case, Plaintiff claim s that on Fe bruary 11, 2011, the D efendant in this actionfraudule ntly induced him to accept a plea de al. The

claim s in the insta

nt civil suit mirror b oth ( 1) Pla inti ff’s moti on and su bs equ ent Sup reme Court appe al seeking withdraw of hi s guil ty plea , and (2) Plaintif f’s subs equent Rule

61 ineffe ctive assistance of counsel

claim which wa s also litiga

ted through the Suprem

e Court. Plaintiff was unsucces sful in bo th matters in th e criminal conte xt. On March 4, 2011, Plaintiff raised identical ineffective assistance of counsel issues while seeking to withdraw his guilty plea. After the Superior Court denied that motion, Plaintif

f appeale d the m atter to t he Sup reme Court, attem pting to advance the same c lai ms aga ins t hi s fo rmer a tto rne y as h e do es t oda y. 3 Here, the Plaint

iff file d this suit m

ore tha n four year s after h e first r aised the identical allegatio ns agains t his atto rney. Accordingl y, the re is no latent discovery of an allege d fraud tha

t would som

ehow exte nd or toll the

statute of

limit ations. Because all facts tha

t plaintiff is allegingin this case were known to him m ore than three years prior to the filing of this ac tion, the s ta tute of limitations period has expired and this action must be dismissed with prejudice. The matt er is also not cogniza

ble becaus e Plaintif

f sought re view of th ese identical issues in his motion to withdraw his guilty plea in 2011, which was denied4 Maddox , 2012 WL 385600, at *1.

5 Rose v. Modico , 808 A.2d 1205, at *1 (Del. 2002).

6 Id.

7 Id

. 3 by the Court. 4 Germane to th i s issue is the Delaw are Supr

eme Court’ s holding in Rose v. Modica which provided that [t ]hestandards for proving ineffective assistance of counsel in a cri mina l proceedin g a re equ ivalent to p roving lega l mal practice in a civil proceedin g. If there

is no claim

against counsel in a criminal case, there is also no civil claim against counsel for legal malpractice

. 5 In Rose, the Supre me C ourt held that when

aDefenda

nt litigate s an ineff

ective assistance of

counsel cl aim i n the crim inal conte xtand does not p revail, a Defe ndant is collaterally estoppedfrom raising the

same issues aga

in in a civil

suit. 6 Dismissal of any such claim s is warranted on tha t basis. 7 Here, the Plaint

iff fully litigated t

he identical issues four years ago. Plaintiff is barred from

once agai n litigatingthe issue of whether h is couns el’s represent ation was i nadequat e. Itis t he order o f this Cour t that this c ase, bei ng time -barred by the statute of limit ations, and also ha

ving been pr

evio usly lit

ig ated in a c rimi nal proce eding, is dismissed with prejudice. IT IS SO ORDERED. /s/Jeffrey J Clark Judge