dissenting.
I agree with Justice Levine’s opinion for the majority that the trial court erroneously referred to Finch’s suit against Gillette and Keifer Chevrolet as being completed in 1987. The mistake may have been simply inadvertent. Of course, that lawsuit was not completed until our mandate on August 12, 1988. Nevertheless, I would affirm because the statute of limitations ran before Finch sued Backes over a year later.
The trial court fairly reasoned that “[t]he statute was ‘tolled’ only until after the [Finch v. Gillette] suit was completed_” Certainly, Finch’s claim against Backes first accrued in 1978 when Backes told Finch to consult another attorney. A claim accrues the moment that the right to commence an action comes into existence. Colonial & U.S. Mortgage Co. v. Northwest Thresher Co., 103 N.W. 915 (N.D.1905); 51 Am.Jur.2d Limitations of Action § 106 (1970). Before Finch first sued Backes in September 1980, nearly two years had already elapsed.
The trial court evidently reasoned that the statute of limitations was tolled, in the “suspended” sense, after commencement of the initial suit against Backes in September 1980, through dismissal of that lawsuit without prejudice on June 2, 1982, and continuing after commencement of Finch’s suit against Gillette and Keifer in 1982, until the second lawsuit was completed in 1988. That is a possible analysis. Still, I would not suggest, as the majority opinion does in n. 3, that by dismissing Finch’s first suit against Backes, Judge Burdick legally “equated” the accrued claim for delay in bringing suit1 with the premature claim for letting the statute of limitations run.
Even if Judge Burdick coupled those different claims, I do not understand how a dismissal without prejudice might make that the law of the case. A dismissal for prematurity, as well as one without prejudice, cannot be the law of the case. Restatement (Second) of Judgments § 20 (1982). A suspension of the running of the statute of limitations for over six years does not authorize the claim to accrue anew thereafter. See NDCC 28-01-29 (“When the commencement of an action is stayed by injunction or other order of a court, or by a statutory prohibition, the time of the continuance of the stay is not a part of the time limited for the commencement of the action.”). Even if the claim was suspended for six years, less than a year remained after the suspension ended before the statute of limitations barred the claim.
After he completed his lawsuit against Gillette and Keifer on August 12, 1988, Finch waited more than a year to renew his suit against Backes on November 3, 1989. Combined with the time elapsed between 1978 and September 1980, the total time that the statute of limitations ran exceeded two years, apart from any possible suspension.
Therefore, I would affirm the trial court’s dismissal of the claim as time barred. I would not prolong this litigation into its third decade.
. For purposes of this case, I agree with n. 5 in the majority opinion that we do not need to decide whether such a claim exists. See 1 R. Mallen and J. Smith, Legal Malpractice § 16.11 (1989).