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 Clark Kent County Courthouse

Judge 38 The Green

 Dover, DE 19901

 Telephone (302)739-5333

October 5, 2015

Mr. Leo R. Maddox Mr. Patrick J. Collins, Esq.

P. O. Box 106 716 North Tatnall Street, Suite 300

Lyndhurst, VA 22952 Wilmington, DE 19803

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

Dear Mr. Maddox and Mr. Collins:

The Court has reviewed and considered the Defendant’s Motion to Dismiss

Plaintiff’s claims with prejudice based on the applicable statute of limitations. The

Court also reviewed Plaintiff’s Motion to Stay. The Court confirmed at the motion

hearing that Plaintiff’s filing was intended to be a response in opposition to

Defendant’s Motion to Dismiss. As expressed to the parties in Court, taking into

consideration the law, the pleadings, and the circumstances of this case, the Court

grants Defendant’s Rule 12(b)(6) Motion to Dismiss with prejudice. This letter more

fully sets forth the Court’s reasoning for its decision. 

Legal malpractice and fraudulent actions are governed by Delaware’s statute

of limitations found in 10 Del. C. § 8106.1 The statute of limitations in Delaware for

such claims is three years and “begins to run when a plaintiff's claim accrues, which

occurs at the moment of the wrongful act and not when the effects of the act are 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(Del. Super. Dec. 15, 2011)(where the

Supreme Court examined the same allegations and found no merit to an ineffective assistance of

counsel claim.)

2

In cases alleging fraud, the cause of action accrues when the fraud is successfully

perpetrated.”2 Fraud cases may include an exception to the general rule of accrual if

the nature of the fraud is discovered at a later date. 

In this case, Plaintiff claims that on February 11, 2011, the Defendant in this

action fraudulently induced him to accept a plea deal. The claims in the instant civil

suit mirror both (1) Plaintiff’s motion and subsequent Supreme Court appeal seeking

withdraw of his guilty plea, and (2) Plaintiff’s subsequent Rule 61 ineffective

assistance of counsel claim which was also litigated through the Supreme Court.

Plaintiff was unsuccessful in both matters in the criminal context. 

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, Plaintiff appealed the matter to the Supreme Court, attempting to advance

the same claims against his former attorney as he does today.3 

Here, the Plaintiff filed this suit more than four years after he first raised the

identical allegations against his attorney. Accordingly, there is no latent discovery

of an alleged fraud that would somehow extend or toll the statute of limitations.

Because all facts that plaintiff is alleging in this case were known to him more than

three years prior to the filing of this action, the statute of limitations period has

expired and this action must be dismissed with prejudice.

The matter is also not cognizable because Plaintiff sought review of these

identical issues in his motion to withdraw his guilty plea in 2011, which was denied
4 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 this issue is the Delaware Supreme Court’s holding in

Rose v. Modica which provided that

[t]he standards for proving ineffective assistance of counsel in a criminal

proceeding are equivalent to proving legal malpractice in a civil

proceeding. 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 Supreme Court held that when a Defendant litigates an ineffective

assistance of counsel claim in the criminal context and does not prevail, a Defendant

is collaterally estopped from raising the same issues again in a civil suit.6 Dismissal

of any such claims is warranted on that basis.7 Here, the Plaintiff fully litigated the

identical issues four years ago. Plaintiff is barred from once again litigating the issue

of whether his counsel’s representation was inadequate. 

It is the order of this Court that this case, being time-barred by the statute of

limitations, and also having been previously litigated in a criminal proceeding, is

dismissed with prejudice.

IT IS SO ORDERED.

/s/Jeffrey J Clark

 Judge