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Sharts v. Natelson6/30/1993
to be distinguished is where the error which causes the damage occurs within the judicial proceeding itself. Then, the judicial process does not declare the rights and liabilities of the parties, but rather is the situs of the client's injury to a cause of action or a defense. Since subsequent effects usually determine the economic consequence of the error, the time of the injury is when the judicial action is completed, typically upon the entry of an order or judgment.
Id. at 110 (footnote omitted). Recognizing the distinction between predicate litigation and other related litigation is Arizona Management Corp. v. Kallof, 142 Ariz. 64, 688 P.2d 710, 714 (Ariz. Ct. App. 1984) (distinguishing AMFAC Distrib. Corp. v. Miller, 138 Ariz. 155, 673 P.2d 795, approved as supplemented, 673 P.2d 792 (Ariz. 1983), as limited to malpractice occurring during litigation). See Graham v. Holler, 499 So. 2d 62 (Fla. Dist. Ct. App. 1986) (distinguishing Richards Enterprises v. Swofford, 495 So. 2d 1210 (Fla. Dist. Ct. App. 1986)); Grunwald v. Bronkesh, 621 A.2d at 465; Magnuson v. Lake, 78 Ore. App. 620, 717 P.2d 1216 (Or. Ct. App. 1986); Zidell v. Bird, 692 S.W.2d 550, 557 (Tex. Ct. App. 1985); see also Massachusetts Elec. Co. v. Fletcher, Tilton & Whipple, 394 Mass. 265, 475 N.E.2d 390 (Mass. 1985).
The contrary authority is rather limited. Some Kansas decisions could be read as applying the predicate-litigation rule even when the alleged malpractice was not committed in the related litigation, but the Kansas Supreme Court now appears to have rejected the view that harm cannot occur until the Conclusion of related litigation. See Dearborn Animal Clinic v. Wilson, 248 Kan. 257, 806 P.2d 997 (Kan. 1991) (treating related litigation as being relevant to discoverability rather than harm). In any event, Kansas cases are not good authority in New Mexico because they follow Price v. Holmes, 198 Kan. 100, 422 P.2d 976 (Kan. 1967), which held that a cause of action for malpractice in preparing a will accrued only after the will was declared invalid, a result contrary to Jaramillo. Occasionally other courts also fail to distinguish between predicate litigation and other related litigation. This error was made, for example, in Grunwald v. Bronkesh, 254 N.J. Super. 530, 604 A.2d 126, 130 (N.J. Super. Ct. App. Div. 1992), rev'd, 131 N.J. 483, 621 A.2d 459 (1993). All but one of the decisions upon which the New Jersey Appellate Division relied involved predicate litigation. That one decision, Haghayegh v. Clark, 520 So. 2d 58 (Fla. Dist. Ct. App. 1988), had itself relied on decisions involving predicate litigation in erroneously applying the rule to other related litigation. Moreover, as noted above, Florida appellate courts do not all agree with Haghayegh. See Graham v. Holler. This Court should not follow the few cases that have mechanically applied the predicate-litigation rule to other related litigation without examining the rationale of the rule.
Finally, I see no public policy reason to hold that no harm occurs until the resolution of related litigation that is not the predicate litigation. My review of statutes in other jurisdictions reveals that New Mexico's four-year limitations period is one of the longer in the country for attorney malpractice actions, and reportedly New Mexico has one of the faster dockets in the country. Ordinarily, if the person alleging legal malpractice thought that it would cause problems to file suit before related litigation had been decided, there would still be ample time to resolve the related litigation before the limitations period expired in the malpractice action. For example, in this case the related litigation was the declaratory judgment action. Judgment was entere
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