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NJ Statute of Limitations: When Does it Begin to Run?

Pasqua v. Masone, N.J. App. Div., August 19, 2010 (Unpublished).

Facts:  Plaintiff, the administrator of his mother’s estate, appeals from the dismissal of the estate’s complaint against the defendant attorney.  In May, 1992 Plaintiff’s mother had suffered traumatic injuries which left her with severely diminished cognitive functions.  Thereafter, Plaintiff’s brother hired an attorney who prepared a will, power of attorney, and trust agreements naming him trustee.  The will resulted in the brother and his lineal descendants receiving a greater portion of the mother’s estate. 

in January, 1999 suit was brought on the mother’s behalf alleging breach of fiduciary duty and conversion against the brother and his family.  In or around that time, other family members had begun to question certain disbursement from the mother’s estate.  Soon after the mother’s death, there was a will contest in probate court.  The court found in favor of Plaintiff and noted that the mother’s signature on the new will appeared on a page by itself, that her relationship with the brother was "very sketchy," and that, to a reasonable degree of medical certainty, the mother had no ability to truly understand the attorney’s advice regarding the new will.  As a result of its decision, the probate court appointed Plaintiff administrator of his mother’s estate.

Several days later, on February 9, 2006, Plaintiff commenced an action against the attorney who had drafted and obtained the mother’s signature on the new estate documents rejected by the probate court.  The defendant attorney argued that Plaintiff’s action was time-barred under New Jersey’s six-year statute of limitations for legal malpractice actions.  Plaintiff argued that his action was timely, since (1) there was no ascertainable loss until the probate court awarded attorney’s fees; and (2) he could not maintain an action on behalf of the estate until the probate court appointed him as administrator of the estate.

Issue:  Was Plaintiff’s time to file a legal malpractice action tolled until he could identify an "ascertainable loss"?  Could Plaintiff maintain a legal malpractice action on behalf of the estate without first being appointed administrator? 

Ruling:  The Court rejected Plaintiff’s position that no damages had occured until the probate court rendered its decision.   The Court noted that Plaintiff and his family members had begun questioning disbursements as early as 1999.

To trigger the statute of limitations, only the fact, not the amount of damages need be certain.

The Court further rejected Plaintiff’s argument that the statute of limitations ought to be tolled until he had been appointed administrator by the probate court.  The Court noted that there was no authority to support such an argument, and that in fact, Plaintiff had pursued ongoing litigation in probate court while his brother was still trustee.  Accordingly, the Court held that Plaintiff’s malpractice claim was barred by the applicable statute of limitations.

Lesson:  The six year statue of limitations for legal malpractice begins to run as soon as Plaintiff learns of the attorney’s negligence and that the negligence will result in some injury or damage, even though the extent of the damage may not yet be known.  The statute of limitations will not be tolled for a beneficiary until he is appointed administrator.

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Posted in: New Jersey, Statute of Limitations, Wills Trusts & Estates