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Sharts v. Natelson6/30/1993
"the harm or damage in this case arose at the time the testatrix died."
As I understand Jaramillo, the harm occurred at the time of the testatrix's death because that is when the plaintiff's legal rights became fixed. So long as the testatrix was alive, the alleged negligence could have been cured by revising the will. The dates when the court acted with respect to the will were immaterial to the determination of when harm occurred. As stated in ) (applying as law), "Legal injury is complete when the negligence of the defendant attorney results in a diminution of the plaintiff's rights under the law, not when that diminution is confirmed by a court . . . ."
Thus, the harm in this case occurred once the alleged negligent drafting by Natelson had irreversible legal consequences. The drafting had irreversible legal consequences when Sharts sold land pursuant to deeds that permitted purchasers to prevent Sharts from subdividing Tract Two into half-acre lots. Until such a sale, Natelson's alleged negligence in preparing the restrictive covenants could have been corrected. That is, prior to such a sale Natelson or some other attorney could have redrafted the covenants and no harm would have been done. After the sale a court could rule on the meaning and application of the covenants but could not change the facts that determined Sharts' legal rights under the covenants.
To be sure, Sharts suffered no financial injury at the time of the first sale of a lot, but neither did the plaintiff in Jaramillo suffer a financial injury at the time of the death of the testatrix. What is important in both cases is that the event in question--the sale of the lot or the death of the testatrix--fixed the plaintiff's legal rights. Once the first lot was sold, Sharts suffered harm because his other property was subject to an unwanted restriction. Jaramillo did not express any interest in when the plaintiff in that case had suffered any financial loss. But if that is a concern, in this case Sharts suffered financial loss more than four years before filing suit. The problem with the covenants prepared by Natelson required Sharts to incur various legal expenses to try to correct the problem, see Kovacevich v. Wainwright, Cal. Rptr. (Ct. App. 6/4/93) (actual injury occurred when plaintiff compelled to incur legal costs); Grunwald v. Bronkesh, 131 N.J. 483, 621 A.2d 459, 465 (N.J. 1993) (in determining when cause of action for attorney malpractice accrues, actual damage may consist of attorney's fees), and the delay to the planned development caused Sharts to suffer substantial financial losses, such as having to pay additional interest charges.
Contrary to the reasoning in the lead opinion, Jaramillo clearly rejects the view that harm from the negligent drafting of a document cannot occur until a court has construed the document. Jaramillo held that the limitations period had commenced prior to the time that the improperly drafted will was denied probate. (The will was denied probate on May 28, 1974; suit was filed on May 20, 1977; yet the court held that the four-year statute-of-limitations period had expired.) It is noteworthy that the appellate brief-in-chief of the losing plaintiff in Jaramillo made the argument seemingly adopted by the lead opinion in this case. The brief contended:
Beneficiaries under the will had no dispute with defendant-attorney until such time as they were denied recovery under the will. . . . It would be premature for a disclosed beneficiary to file an action against the attorney to protect his bequest on grounds that provisions of the will may fail and that probate may take longer than the four year statute of limitations. It is not the policy of the courts
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