Malpractice lawsuit's counts tossed after coming in too late

St. Louis Daily Record & St. Louis Countian, Oct 17, 2006 by Donna Walter

Mary Henderson is learning a lot about the statute of limitations.

First, she hired a St. Louis County law firm to handle her personal injury lawsuit against Wal-Mart. She alleged that she was injured in an Illinois store on Aug. 23,1999. But the statute of limitations ran out without Appleton, Kretmar, Beatty & Stolze filing a suit in Illinois state court.

Then, last week a federal judge in St. Louis threw out two counts of the lawsuit against the firm because Henderson's new lawyers didn't file her legal malpractice suit on time.

Henderson found out on April 3, 2003, that the original law firm didn't file her personal injury claim, and on Aug. 24, 2005, she sued the firm for malpractice in the U.S. District Court in St. Louis. St. Louis attorneys John S. Wallach and Suzanne M. Hardin are representing her in the legal malpractice case.

The arguments came down to whether Missouri or Illinois law applied. Missouri law puts the statute of limitations for filing legal malpractice claims at five years; Illinois law puts it at two years.

In court documents, Henderson's attorneys argued Missouri law should apply because the relevant actions took place in St. Louis: The contract was entered into in St. Louis, the defendants worked on the case in St. Louis, and Henderson found out the statute of limitations had expired during a face-to-face meeting with attorney Evan Beatty at the firm's St. Louis office. Her attorneys also argued the firm didn't have an office in Illinois and that the parties mediated their dispute in St. Louis.

But those facts are "immaterial," according to U.S. Magistrate Judge Audrey Fleissig. "The malpractice action accrued at the moment when the Illinois statute of limitations expired in the Illinois court where the claim should have been filed," she wrote, citing Ferrellgas Inc. v. Edward A. Smith PC, which was decided in May by the Missouri Court of Appeals, Western District.

In Ferrellgas, the plaintiff, a corporation headquartered in Missouri, filed a legal malpractice claim against its attorneys after receiving an adverse verdict in a case filed in California. The corporation's representative learned of the verdict at the corporate headquarters and so argued the legal malpractice claim accrued in Missouri, but the Western District said the malpractice action originated when the verdict was announced in California.

Fleissig dismissed two of Henderson's three counts against the law firm: that the firm negligently handled the personal injury action by its failure to exercise ordinary skill and diligence and that it breached oral and written contracts to provide competent legal representation.

Henderson may pursue her claim that the firm breached its fiduciary duty by failing to notify her sooner that the statute of limitations had expired.