Articles Posted in Statute of Limitations Defense

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The plaintiff claimed that he missed the closing date on three real estate transactions because his lawyers did not give notice. The lawyers insisted that (a) the plaintiff fired them long before closing and (b) they notified plaintiff of the new closing dates.

The court held the case barred by the three-year statute of limitations in New Jersey. The explanation:

Here, plaintiff, a New Jersey resident, brings a legal malpractice claim against Kane and Berger. The applicable statute of limitations for a claim of legal malpractice is three years in New York (CPLR 214[6]) and six years in New Jersey (McGrogan v Till, 167 NJ 414, 426, 771 A2d 1187 [2001]). Therefore, New York’s three-year statute of limitations period applies.

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This case discusses the discovery rule in legal malpractice cases. Specifically, when should the plaintiff know that he had a claim against his employment lawyer?

The Facts:

In 2011, Nelson hired Padgitt, Padgitt & Peppey to negotiate an employment agreement with his new employer Launch Creative Marketing. Nelson signed the agreement in June 2011. Six months later, Launch terminated Nelson’s employment on the ground that the revenue collected from Nelson’s clients totaled less than $250,000 over the first six months of employment. The employment agreement permitted Launch to terminate Nelson for cause if the revenue collected from his old clients did not total $250,000 during the first six months of employment.

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The Terra Museum sued its former attorneys, DLA Piper, for legal malpractice arising out of a real estate deal gone bad. Terra claimed that, due to a drafting error, it was required to pay the other party to the real estate deal millions more than it should have had to pay. The Statute of Repose gives a client six years to sue the attorney for malpractice. The Statute of Repose starts to run when the attorney commits the negligent act, not when the client discovers the error. The court explained that Terra had opportunities to file suit during the

The court explained that Terra had opportunities to file suit during the six-year repose period. The court rejected an argument that the repose period does not begin to run until the transaction was completed.

¶ 33 We conclude that the event giving rise to Terra’s injuries occurred on May 29, 2007, when Terra and NM Project executed the first amendment and chose BOMA 96 as the method of measuring the retail parcel without the exclusionary language.Fricka v. Bauer, 309 Ill. App. 3d 82, 88 (1999) (“The plain language of the statute requires filing of the lawsuit within six years of the acts or omissions that form the basis for the complaint.”). The measurements of the rentable area under the BOMA 96 standards, without excluding the common space, resulted in the increases of the retail parcel space, which required Terra to engage in arbitrations to dispute the measurements, incur the related attorney fees and expenses and make the retail parcel credit payment at the closing. Terra’s asserted injuries directly flowed from DLA’s allegedly negligent omissions and acts as to the first amendment.

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This is a legal malpractice case in which the plaintiff, Juakeishia Pruitt retained the Cockrell & Cockrell firm to pursue employment claims against Spillman College and other claims against other parties. According to the opinion, the firm failed to file the claims in timely fashion and an associate concealed that fact from Pruitt. The associate, Byron House, made further false representations as to the status of those cases in an effort to conceal from Pruitt that the cases had not been filed in timely fashion. The associate told Pruitt that her cases had settled and made payments to her from the firm’s operating account. The opinion states:

Subsequently, Pruitt met with another attorney, Delaine Mountain. During that meeting, House called Pruitt on her cellular telephone, and Mountain listened to that conversation. On January 18, 2012, Mountain made two telephone calls to Cockrell to discuss Mountain’s concerns regarding House’s handling of Pruitt’s discrimination cases. Cockrell twice confronted House in light of the information he had received from Mountain. Eventually, House told Cockrell that he had missed the statute of limitations on both discrimination cases; that there was no structured settlement in the Stillman College case; and that he had taken money for the alleged settlement payments from the Cockrell law firm’s general business account and trust accounts. The Cockrell law firm immediately terminated his association with the firm.

When Pruitt learned that her claims had not been filed on time, she sued for legal malpractice. The law firm defended on the ground that the legal malpractice statute of limitations had run. The trial court denied the law firm’s motion for summary judgment on the ground that the law firm had made fraudulent representations to Ms. Pruitt. The Alabama Supreme Court upheld the denial of summary judgment on the ground that the fraudulent actions by the associate were a separate basis for liability under Alabama’s Legal Services Act.

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This is another decision affirming, as time-barred, a legal malpractice case. Plaintiffs alleged that they hired Vedder Price to represent them in a commercial real estate transaction in 2003. Plaintiffs signed personal guarantees. The plaintiffs alleged that the lawyer defendants failed to advise them that one of other parties to the venture had signed a limited version of the personal guarantee. Plaintiffs claimed that had they known of the limited version of the guarantee they would not have signed the loan documents. Plaintiffs also alleged that the lawyer defendants failed to notify them that a transfer of a 10% interest in the project to Benjamin Nummy triggered a default under the loan documents.

It was undisputed that the lawyers gave the plaintiffs a complete copy of all the documents signed by all parties in 2003. In 2012, the bank notified the bank that the 2003 transfer to Nummy violated the loan documents and declared a default and sued for foreclosure.

Plaintiffs sued Vedder Price in 2014. The case was dismissed on statute of repose grounds (the alleged negligent act occurred more than 6 years before the lawsuit was filed). Plaintiffs alleged fraudulent concealment but this claim was rejected because the alleged fraudulent concealment consisted of the same allegations that supported the negligence claim. In other words there were no allegations that the lawyers took any action after the transaction to cover up their alleged mistake.

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It is very common that someone will come into my office and explain that he is a victim of legal malpractice. Often, for reasons I don’t understand, the person waits more than two years after the underlying judgment before they contact me. By waiting this long, the statute of limitations has run and there is absolutely nothing we can do to help the plaintiff.

In Illinois the plaintiff has two years to file suit from whenever the plaintiff discovers the injury. Where there is litigation, discovery occurs when the underlying case reaches judgment.

In Belden v. Emmerman, the Illinois Appellate Court held that the statute of limitations begins to run when there is an adverse judgment against the injured party. The defendant moved to dismiss and the plaintiff argued that, because he filed an appeal of the adverse judgment, the statute of limitations did not start to run until the appeal was decided.

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Source: Janousek v. KATTEN MUCHIN ROSENMAN LLP, Ill: Appellate Court, 1st Dist., 2nd Div. 2015 – Google Scholar

Illinois has a two-year statute of limitations period which applies to legal malpractice claims. Here, the Appellate Court held that the two-year statute operated to bar claims against a law firm that allegedly assisted its client in a breach of fiduciary duty.

Facts:

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A legal malpractice case requires careful analysis. Even if the lawyer was negligent in some way, did the negligence make any difference in the ultimate outcome? To evaluate a legal malpractice case, you must evaluate the underlying case as well.

Rodi v. Horstman, 2015 IL App (1st) 142787 is such a case. Rodi hired Horstman to handle an appeal of an unfavorable decision. It is undisputed that Horstman filed the notice of appeal one day late and the Appellate Court held that it had no jurisdiction. Rodi then sued Horstman for legal malpractice, but the trial court granted summary judgment for Horstman and the Appellate Court affirmed. The reason is that even if Horstman had timely filed the notice of appeal the appeal was a loser.

The Underlying Case:

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Source: LAMET v. Levin, Ill: Appellate Court, 1st Dist., 3rd Div. 2015 – Google Scholar

This is a legal malpractice case that the Illinois court held was barred by the six-year statute of repose and also by the two-year statute of limitations. Lamet hired Levin in 1994 to represent him in a dispute with his landlord. Lamet’s landlord claimed that Lamet owed $34,000. Levin fought the litigation for 17 years. (Levin claimed that he was being charged for more square feet than he actually rented). Ultimately, in 2011, Levin recommended that the litigation be settled for the sum of $150,000.

Lamet then sued Levin for legal malpractice “essentially asserting that Levin should have advised him in 1994 to accede to his landlord’s demands and forgo defense of the lawsuit.”

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William Carlson and Willis Capital, LLC v. David J. Fish and the Fish Law Firm, P.C., Shawn M. Collins and The Collins Law Firm, P.C., 2015 IL App (1st) 140526.

This is a decision of the Illinois Appellate Court affirming the dismissal of a legal malpractice lawsuit on the ground that the two-year statute of limitations had expired before the lawsuit was filed.

The lawsuit arose out of a business dispute between William Carlson and his business partners in an entity known as Belvedere Trading, LLC. In 2006, Carlson had a “falling out” with his partners. In February 2008, Carlson agreed to mediate the dispute with his partners. He retained the defendant lawyers to represent him. On February 13, 2008, the parties held a mediation in which Carlson agreed to sell his interest in Belvedere for $17.5 million. The settlement agreement was signed on March 6, 2008. It is noteworthy that Carlson did not obtain an independent appraisal of the value of his interest in Belvedere before the mediation.

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