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Sullivan v. Aslanides1/6/2005
insufficient to trigger the running of the statute of limitations; a party must also have incurred damages. Grunwald v. Bronkesh, 131 N.J. 483, 492 (1993). The damages, moreover, must be actual damages, that is,"real and substantial as opposed to speculative." Id. at 495.
The trial court also concluded that plaintiff suffered actual damages no later than November 17, 1994, the date upon which he retained counsel to defend him in the Szwed litigation. In support of this conclusion, the trial court relied upon Grunwald, supra, and Dixon Ticonderoga Co. v. Estate of O'Connor, 248 F. 3d 151 (3rd Cir. 2001). We consider these cases distinguishable and disagree with the trial court's determination as to when Sullivan suffered actual damages.
Plaintiff in Grunwald retained defendant Bronkesh to prepare an option agreement with regard to the sale of certain property in Atlantic City to Resorts International Hotel and Casino, Inc. Grunwald, supra, 131 N.J. at 488. Bronkesh did so and submitted the option, together with a form of contract annexed, to Resorts. Ibid. Resorts signed both the option and the contract and Bronkesh then advised Grunwald he had an enforceable contract for the sale of the property. Ibid. Based upon that advice, Grunwald did not pursue another opportunity to sell the property but Resorts never exercised the option. Ibid. In 1984 Grunwald sued Resorts for specific performance, but was unsuccessful. Ibid. He also lost on appeal when this court, in November 1985, affirmed the trial court's order. Ibid. Five years after that affirmance, in September 1990, Grunwald sued Bronkesh, saying Bronkesh had committed malpractice in advising him that Resorts had exercised the option by executing the sales contract attached to the option agreement. Ibid. The trial court held Grunwald's malpractice action barred by the statute of limitations. It found the statute began to run in July 1984 when the trial court denied Grunwald specific performance against Resorts. Id. at 489. On appeal, this court reversed, finding that the statute did not begin to run until November 1985, when the decision of the trial court was affirmed. We reasoned that until that point, Grunwald's damages were only speculative. The Supreme Court, however, reversed this court and reinstated the judgment of the trial court dismissing the malpractice action for having been filed beyond the six-year limitations period. Id. at 500.
The main focus of the Court in Grunwald was its determination that the discovery rule should be applied to legal malpractice actions. Id. at 492-95. The elements of the discovery rule, of course, are injury or damages and fault. Id. at 495. In finding Grunwald's action time-barred, the Court ruled that his cause of action for malpractice accrued at the time of the trial court's ruling adverse to his position. Id. at 500. In the course of its discussion of the necessity of having incurred actual damages for limitations purposes, the Court noted that payment of attorney's fees can constitute such damages. Id. at 495.
In Dixon, the court was presented with separate, but related claims of legal malpractice. Plaintiff Dixon owned industrial property in Jersey City that it contracted to sell in 1983. Attorney O'Connor represented Dixon in connection with the negotiations, contract preparation and closing. Dixon, supra, 248 F. 3d at 156. The contract called for a closing within sixty days of the purchaser having obtained a variance, which occurred on October 12, 1983. Ibid. The closing, however, did not take place until February 24, 1984. Id. at 157. After the contract had been executed, the New Jersey Legislature enacted the Environmental Cleanup and Responsibility Act ("ECRA") N.J.S.A. 1
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