Hibbard v. Taylor

SPAIN, Justice,

dissenting.

Respectfully, I dissent. The trial court correctly concluded that the malpractice suit filed by Taylor against his former attorney, Hibbard, was barred under the one-year statute of limitations, KRS 413.245. Notice of an “occurrence” accrued when the trial court granted the directed verdict motion against Taylor, and not when the appellate process had been completed as the majority has opined. Taylor “reasonably should have ... discovered” his alleged “injury” on February 9,1989, at trial or, at the latest, on February 17, 1989, the date the judgment was entered. It became time-barred on February 17, 1990.

If, indeed, attorney Hibbard was guilty of any legal malpractice, it concededly occurred before any appeal. Furthermore, such malpractice, if any, was not affected by what happened on appeal. If an attorney’s negligence causes the loss of a case, it is no less so because an appellate court reverses the trial court. Similarly, an attorney who practices a case free of negligence is not thereafter guilty of malpractice retroactively simply because he loses it on appeal.

The majority’s misapplication of KRS 413.245 will now allow disgruntled clients to bring stale and frivolous claims against their attorneys.

WINTERSHEIMER, J., joins in this dissent.