statute of limitations began when client, on advice of counsel, consented to temporary injunction resulting in monthly lost profits, notwithstanding that extent of client’s damages were unknown until resolution of underlying case
How later courts described this case
- statute of limitations began when client, on advice of counsel, consented to temporary injunction resulting in monthly lost profits, notwithstanding that extent of client’s damages were unknown until resolution of underlying case
- “The test is when the plaintiff could have first successfully maintained the action.”
- “[A] defendant may be estopped by his conduct from claiming the statute of limitations as a defense where his conduct induced the plaintiff to delay bringing the suit until after the expiration of the statute.”
- "damage is sustained and capable of ascertainment for purposes of the statute of limitations when it can be discovered or made known, even though the amount of damage is unascertained"
Written by the judges who cited it.
The opinion
ON MOTION FOR REHEARING BEFORE THE COURT EN BANC OR, IN THE ALTERNATIVE, APPLICATION FOR TRANSFER TO THE MISSOURI SUPREME COURT
Plaintiffs have filed a Motion For Rehearing En Banc as well as an Application For Transfer in which they allege several reasons why this case should be reheard by the court en banc or transferred to the Supreme Court of Missouri. Such motions are without merit and are denied. In so ruling, we note that with their Motion For Rehearing, Plaintiffs have attached documents which are not properly a part of the record before this court. These include documents which were the subject of a prior Motion to Supplement the Record which was denied by this court.
We feel that it is appropriate to respond to one of the allegations contained in the Motion For Rehearing En Banc. Plaintiffs allege that a statement made by the court at page 5 of the slip opinion was factually inaccurate. That statement is as follows:
On June 24, 1985, Plaintiffs entered into a written contingent fee contract with attorneys in Springfield. During the discussions, the Springfield attorneys discussed with Mr. Davis the possibility of a malpractice stdt.
One of the paragraphs of Wolffs amended motion for summary judgment alleged:
In June of 1985, plaintiffs hired new attorneys, namely, Harrison, Tucker & Hyde; and those attorneys discussed with Harvey Davis the possibility of a malpractice action against defendant Wolff. (Paragraph L on page 5 of the affidavit.)
Plaintiffs’ response to that motion was as follows:
Plaintiffs admit that in June of 1985 they hired Harrison, Tucker & Hyde, and admit that they discussed the possibility of a malpractice action against defendant Wolff, and admit that Tucker testified as claimed in Paragraph L on page 5 of Wolff’s affidavit, but point out to the court that Tucker did not state when he made his statement. Plaintiffs state that the Tucker and Harrison firm did not tell Plaintiffs until a few months before the scheduled date of trial in October of 1989 that Defendants’ actions diminished Plaintiffs’ ability to negotiate for a higher settlement or get a higher judgment. [Emphasis added.]
Likewise, Plaintiffs refer us to the affidavit of Harvey Davis filed in response to the motions for summary judgment in which he stated:
That the Harrison, Tucker & Hyde firm did not advise him until just prior to the months immediately preceding the settlement of the underlying actions that Defendant’s conduct would diminish his ability to negotiate a higher settlement or get a higher judgment.
Plaintiffs’ response admits that they discussed the possibility of a malpractice action against Defendant Wolff. Their claim that they were not told by the new law firm that Defendants’ actions diminished their ability to negotiate for a higher settlement or get a higher judgment until just months before the trial date is not inconsistent with having previously discussed the possibility of a malpractice action. In any event, the statement contained in this court’s opinion about which complaint is made was not determinative of any point on this appeal.
Plaintiffs’ Motion For Rehearing En Banc and Application For Transfer are denied.