                                   SUPERIOR COURT
                                       of the
                                 STATE OF DELAWARE


Jeffrey J Clark                                                         Kent C ounty Cou rthouse
Judge                                                                        38 The G reen
                                                                            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.


       1
           10 Del. C. § 8106; David B. Lilly Co. v. Fisher, 800 F. Supp. 1203, 1206 (D. Del. 1992)
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


       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
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




      4
          Maddox, 2012 WL 385600, at *1.
      5
          Rose v. Modico, 808 A.2d 1205, at *1 (Del. 2002).
      6
          Id.
      7
          Id.

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