432 P.3d 736
Nev.2018Background
- Branch Banking & Trust hired Gerrard & Cox to represent it in a dispute over priority of deeds of trust; the district court entered judgment against Branch Banking.
- A three-justice panel of the Nevada Supreme Court affirmed; petitions for rehearing and en banc reconsideration were denied.
- The Nevada Supreme Court issued remittitur on March 18, 2014; Branch Banking then petitioned the U.S. Supreme Court for certiorari, which was denied October 6, 2014.
- Branch Banking filed a legal-malpractice complaint against Gerrard on October 5, 2016, alleging malpractice during the property litigation.
- Gerrard moved to dismiss as time-barred under NRS 11.207(1); the district court granted the motion and dismissed the complaint.
- The Nevada Supreme Court affirmed, holding the malpractice limitations period began upon issuance of remittitur and that an unsuccessful certiorari petition (without a stay of remittitur) does not extend the litigation-malpractice tolling rule.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When does a litigation-malpractice claim accrue for statute of limitations purposes after an adverse appellate ruling? | Tolling continues until the 90-day certiorari period expires or, if certiorari is timely filed, until the U.S. Supreme Court resolves the petition (here, until denial on Oct 6, 2014). | Tolling ends when Nevada Supreme Court issues remittitur (here, Mar 18, 2014); absent a stay of remittitur, certiorari filings do not extend tolling. | Accrual occurs on issuance of remittitur; an unsuccessful certiorari petition without a stay does not extend the tolling period. |
Key Cases Cited
- Brady, Vorwerck, Ryder & Caspino v. New Albertson's, Inc., 130 Nev. 632, 333 P.3d 229 (litigation-malpractice tolling rule explained)
- Moon v. McDonald, Carano & Wilson LLP, 129 Nev. 547, 306 P.3d 406 (distinguishing litigation vs. transactional malpractice)
- Hewitt v. Allen, 118 Nev. 216, 43 P.3d 345 (malpractice claim does not accrue while an appeal is pending)
- Semenza v. Nevada Medical Liability Insurance Co., 104 Nev. 666, 765 P.2d 184 (malpractice suit premature while appeal is pending; guidance on abeyance)
- K.J.B., Inc. v. Drakulich, 107 Nev. 367, 811 P.2d 1305 (statute of limitations does not run until underlying litigation concludes)
- Dickerson v. State, 114 Nev. 1084, 967 P.2d 1132 (remittitur divests appellate jurisdiction and returns jurisdiction to district court)
- Petersen v. Bruen, 106 Nev. 271, 792 P.2d 18 (policy considerations underlying statutes of limitation)