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Panell v. Henslee12/30/1999
-limitations period begins to run, when the client first suffers actual damage was a misconstruction of the ALSLA." ___ So. 2d at ___. It is unclear what the main opinion intends with respect to the accrual of a cause of action. Indeed, it suggests that the limitations period may commence before, or without, the accrual of a cause of action or the plaintiff's incurring a legal injury.
The well-established principles regarding the accrual of a cause of action, generally, are explained as follows:
"A cause of action accrues when the party in whose favor it arises is entitled to maintain an action. ...
"... 'If the act of which the injury is the natural sequence is of itself a legal injury to plaintiff, a completed wrong, the cause of action accrues and the statute begins to run from the time the act is committed ....' n situations where the act itself is not a legal injury, not a completed wrong, and the plaintiff's injury comes only as a result of what the defendant has done, the cause of action accrues and the limitations period begins to run when damage is sustained."
System Dynamics Int'l, Inc. v. Boykin, 683 So. 2d 419, 421 (Ala. 1996). Section 6-5-574(a) -- as written and as interpreted in Michael -- is fully consistent with these principles.
However, if, as some of the language in the main opinion suggests, that opinion is intended to sever the connection between the act or omission and the cause of action, that is, to authorize a malpractice action regardless of whether the act or omission of which the client complains ever ripens to a cause of action, then I most strenuously dissent. Such an approach would be nonsensical, because it is axiomatic that a plaintiff cannot maintain an action until he has a cause of action. Thus, the limitations period could, not only run, but, expire, before the plaintiff ever had a right to maintain an action. Moreover, it would be impossible to calculate the terminus a quo from which to calculate the running of the limitations period, that is, to determine what event triggered the running of the limitations period.
This difficulty is particularly acute in legal-malpractice actions, because of the nature of legal representation. Litigation is a protracted process. In the normal give and take of litigation, a party may gain, lose, and regain the advantage repeatedly. One who is "proclaimed" the "winner" at the trial court level, may, in the final analysis, lose all on appeal. Indeed, neither the parties nor their representatives can be charged with foreknowledge of whether the opposition will appeal a final judgment, or of what an appellate court will do if it does.
These difficulties were clearly exemplified in Cantrell v. Stewart, 628 So. 2d 543 (Ala. 1993); and Brewer v. Davis, 593 So. 2d 67 (Ala. 1991). In both cases, this Court held that the plaintiff's legal-malpractice cause of action did not accrue, and, consequently, that the limitations period did not commence to run, until the merits of the underlying cause were resolved on appeal. Although those cases were correct on their facts and were well reasoned, their authority could be called into question by today's main opinion.
I do not find fault with the main opinion insofar as it states that the "'statute of limitations can be triggered at some time before the full extent of damages is sustained.'" (Quoting Rosnick v. Marks, 218 Neb. 499, 505, 357 N.W.2d 186, 190 (1984)). However, this explanation does not resolve my criticism of the theory espoused in the main opinion, because under that theory the limitations period could begin to run, and could expire, before any damages are sustained. The following rather common
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