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Gonzales v. Stewart Title11/1/1995
ry or damages sustained. Damages cannot be determined until all appeals have been exhausted when a `litigation' rather than a `transactional' malpractice case is involved." Id. Although the instant case was based upon transactional malpractice, the extent of Gonzalez's damages, if any, could not be determined until the underlying action was resolved. As noted in Lansford, the prospect of having to pay some attorney's fees in the underlying action (which, in the case underlying the instant case, amounted only to potential damages), should simply provide no basis for triggering the running of the statute of limitations. Without citation to further cases, I suggest that the majority's claim to be part of a "trend" is incorrect. The citation to Oregon and Idaho as evidence of the trend is hardly supportive of the majority's position. Moreover, I suggest that it is inconsistent with well recognized principles of law relating to damages to adopt a rule commencing the running of a period of limitations on damages that are almost entirely speculative as to kind and extent. See, e.g., Archer v. Airline Pilots Ass'n Int'l, 609 F.2d 934, 938 (9th Cir. 1979), cert. denied, 446 U.S. 953 (1980) (" here future damages are too speculative to prove at the time the defendant's wrongdoing takes place, `the cause of action for future damages, if they ever occur, will accrue only on the date they are suffered'") (citation omitted). In the instant case, it would have been highly speculative to reach any conclusion, prospectively, on the subject of whether the client would lose the property as a result of the attorney's transactional negligence. Moreover, it would have been almost equally speculative whether, and to what extent, the client may have suffered the expense of attorney's fees.
[111 Nev. 1350, Page 1363]
I suggest that the rule discussed above, consistent with the ruling by the California Supreme Court in Niles, is a rule of greater certainty that is also more conducive to judicial economy. Under the majority's rule, a client would be forced to commence litigation against his or her attorney under circumstances that subsequent events might prove unnecessary and disruptive to the possibility of ongoing positive relations between attorney and client. For the reasons discussed above, I respectfully dissent.
Opinion Footnotes}
1 This is not to say that the cause of action for negligent drafting of the trust instrument would have presented a proper claim for liability. As we noted in the Charleson opinion, it was uncontroverted that Ms. Trelease wanted Lichowsky to have discretion over the trust assets and specifically did not want Mr. Hardesty to restrict Lichowsky to secured borrowing. Charleson, n.5 at 884, 839 P.2d at 1307.
2 Although the case of Bonz v. Sudweeks, 808 P.2d 876 (Idaho 1991), cited by the majority, does not lend support to the majority's position, the earlier case of Griggs v. Nash, 775 P.2d 120 (Idaho 1989), does support the proposition cited by the majority.
3 The California statute relating to attorney malpractice states that a cause of action shall not accrue while " he plaintiff has not sustained actual
injury ." Cal. Civ. Proc. Code S 340.6(a)(1) (West 1982). The "actual injury" requirement in the California statute is indistinguishable from Nevada's "actual loss or damage" requirement as set forth in Sorenson, 94 Nev. 440, 581 P.2d 851 (1978).
4 In the recent case of Marshall v. Gibson, Dunn & Crutcher, 44 Cal. Rptr. 2d 339 (1995), the Court of Appeal, in a case involving attorney transactional negligence, concluded that the allegations of the complaint reasonably fell w
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