# Epstein v. Brown

> Supreme Court of South Carolina · March 21, 2005 · 363 S.C. 372

URL: https://www.frixlaw.com/law-library/cases/9586235

## Case

- **Full name:** Franklin M. EPSTEIN, M.D. and Southern Neurological Institute, Appellants, v. David A. BROWN, Esquire, Respondent
- **Court:** Supreme Court of South Carolina
- **Decided:** March 21, 2005
- **Citations:** 363 S.C. 372; 610 S.E.2d 816; 14 A.L.R. 6th 741; 2005 S.C. LEXIS 90
- **Precedential status:** Published
- **Opinion:** Dissent by Toal
- **Judges:** Waller, Moore, Burnett, Toal, Pleicones
- **Cited by:** 31 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by Stokes-Craven Holding Corp. v. Robinson, 416 S.C. 517 (2016).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9586235

## How later opinions describe it (automated extraction)

- explaining reasonable diligence means "simply that an injured party must act with some promptness where the facts and circumstances of an injury would put a person of common knowledge and experience on notice that some right of his has been invaded or that some claim against a…
- stating that the exercise of reasonable diligence means an injured party must act with some promptness when the facts and circumstances of an injury would put a person of common knowledge and experience on notice that some right has been invaded or some claim against another p…
- holding the three-year limitations period for a legal malpractice claim began running on the date the adverse verdict was entered against the client, even though the attorney continued to represent the client throughout the appellate process
- rejecting the continuous- representation rule and affirming the dismissal of a legal malpractice case based on the expiration of the statute of limitations on the ground the three-year limitations period began to run on the date that the adverse verdict was entered against cla…
- rejecting the continuous-representation rule and affirming the dismissal of a legal malpractice case based on the expiration of the statute of limitations on the ground the three-year limitations period began to run on the date that the adverse verdict was entered against clai…

## Opinion text

Chief Justice TOAL
dissenting:
I respectfully dissent. I would adopt a bright-line rule that the statute of limitations does not begin to run in a legal malpractice action until an appellate court disposes of the action by sending a remittitur to the trial court.
I agree that under the discovery rule, the statute of limitations is tolled until the date the injured party either knows or should know, by the exercise of reasonable diligence, that a cause of action exists for the wrongful conduct. S.C.Code Ann. § 15-3-535 (Supp.2003); See also Dean v. Ruscon Corp., 321 S.C. 360, 363 , 468 S.E.2d 645, 647 (1996) (explaining the discovery rule). In Dean , this Court explained the nature of “reasonable diligence”:
[w]e have interpreted the exercise of reasonable diligence to mean that the injured party must act with some promptness where the facts and circumstances of an injury place a *384 reasonable person of common knowledge and experience on notice that a claim against another party might exist.
Id. (emphasis added).
I disagree with the majority’s decision holding that the appellants should have known of the existence of a cause of action arising from respondent’s alleged malpractice at the conclusion of the trial. In my opinion, there was no evidence that appellants were injured as a result of respondent’s alleged malpractice until the court of appeals disposed of the case by sending a remittitur to the trial court. Therefore, I would establish a bright-line rule that the statute of limitations does not begin to run in a legal malpractice action until a remittitur has been sent to the trial court. As a result, in my opinion, the statute of limitations does not bar Appellants’ claim.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9586235. Public record. Not legal advice.