Legal Malpractice Statute of Limitations – Tolling under § 6-2-3, Ala. Code 1975

Fox v. Hughston and Morgan, [Ms. SC-2022-0564, Mar. 10, 2023] __ So. 3d __ (Ala. 2023). In a per curiam opinion, the Court (Shaw, Wise, Bryan, Stewart, and Cook, JJ., concur; Mitchell, J., concurs specially; Parker, C.J., concurs in part and concurs in the result; Mendheim, J., concurs in the result; Sellers, J., dissents) affirms the Colbert Circuit Court’s summary judgment dismissing Erica Fox’s legal malpractice action against her criminal defense attorneys who failed to properly perfect an appeal of her capital murder conviction. Fox was convicted on October 26, 2018, and on November 28, 2018, she was sentenced to life without parole. Her attorney’s oral notice of appeal made when the jury returned its verdict was ineffective because “‘[a]n oral notice of appeal is effective only if it is made at the time of sentencing.’” Ms. *4.

The Court explains “there is no need in the present case for this Court to elect between the occurrence approach and the damage approach [to accrual of legal malpractice claims] because Fox’s claims are untimely under either approach.” Ms *19. The Court holds

Fox’s claims clearly are barred under the occurrence approach. The act or omission giving rise to Fox’s claims was the defense attorneys’ failure to file a proper notice of appeal in her criminal case. That act or omission occurred no later than March 11, 2019, the date on which a written notice of appeal would have been due. Fox filed her complaint on November 5, 2021, after the two-year limitations period had run. Fox’s action is also time-barred under the damage approach. Fox first suffered legal damage on March 11, 2019, when the defense attorneys did not observe the deadline for filing her appeal in the criminal case and she lost her right to appeal. Although we need not consider it, legal damage also occurred on July 17, 2019, when the Court of Criminal Appeals dismissed her appeal. “A cause of action accrues as soon as the claimant is entitled to maintain an action, regardless of whether the full amount of the damage is apparent at the time of the first legal injury.” Chandiwala v. Pate Constr. Co., 889 So. 2d 540, 543 (Ala. 2004); Kelly v. Shropshire, 199 Ala. 602, 605, 75 So. 291, 292 (1917) (holding that the limitations period “begins to run from the time the act is committed, be the actual damage (then apparent) however slight, and the statute will operate to bar a recovery not only for the present damages but for damages developing subsequently ….”) (emphasis added)). Thus, we do not find persuasive Fox’s argument that she did not sustain legal damage until this Court entered its judgment on December 20, 2019.

Ms. **19-20.

The Court also rejects Fox’s tolling argument based on § 6-2-3, Ala. Code 1975, and reiterates “[t]he limitations period applicable to fraud claims under § 6-2-3 begins to run when a party actually discovers the fraud or when he or she learns of facts that would have caused a reasonable person to inquire further. Dickinson v. Land Devs. Constr. Co., 882 So. 2d 291, 298 (Ala. 2003). Fox’s August 12, 2019, letter provides evidence in her own words that she had actual knowledge as of that date that the defense attorneys’ representation that they had filed a notice of appeal on her behalf was false.” Ms. *24.

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