Erica Rae Fox v. Harold V. Hughston III and Sheila Morgan

Rel: March 10, 2023
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern
Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts,
300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other
errors, in order that corrections may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2022-2023
_________________________
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_________________________
Erica Rae Fox
v.
Harold V. Hughston III and Sheila Morgan
Appeal from Colbert Circuit Court
(CV-21-900257)
PER CURIAM.
In this legal-malpractice action, Erica Rae Fox appeals from a
summary judgment entered by the Colbert Circuit Court in favor of her
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former criminal-defense attorneys, Harold V. Hughston III and Sheila
Morgan ("the defense attorneys"). The trial court determined that the
applicable statute of limitations barred Fox's action. We affirm.
Facts and Procedural History
On August 12, 2016, Ronnie Credille murdered Fox's husband,
Jason Fox. Credille shot Jason in the head as he entered the doorway of
the residence that he shared with Fox and their children. Fox and
Credille were alleged to have been involved in an adulterous relationship.
A grand jury indicted Fox for capital murder on January 12, 2017. Fox
was accused of arranging for Credille to murder Jason so that she could
collect the proceeds from Jason's life-insurance policy. The trial court
presiding over the criminal action declared Fox indigent and appointed
the defense attorneys to represent her. On October 26, 2018, at the
conclusion of a five-day jury trial, the jury convicted Fox of capital
murder, and, on November 28, 2018, she was sentenced to life
imprisonment without the possibility of parole.
The transcript of Fox's trial indicates that, on October 26, 2018,
after the jury had reached its verdict and the trial court had polled the
jury members, Morgan provided an oral notice of appeal in open court.
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Rule 3(a)(2), Ala. R. App. P., however, provides that,
"[i]n criminal cases, an appeal permitted by law as a matter
of right to an appellate court shall be taken by filing a written
notice of appeal with the clerk of the trial court within the
time allowed by Rule 4, [Ala. R. App. P.,] or by the defendant's
giving an oral notice of appeal at the time of sentencing, which
oral notice shall be noted of record …."
(Emphasis added.) Fox contends that, at the conclusion of the sentencing
hearing, she made it clear to the defense attorneys that she wanted to
appeal her conviction and sentence and that they represented to her that
a notice of appeal had been perfected. Despite that representation, there
is no oral notice of appeal contained in the transcript of the sentencing
hearing.
On December 28, 2018, the defense attorneys filed a motion for a
new trial on Fox's behalf. That motion was denied by operation of law on
January 28, 2019. See Rule 24.4, Ala. R. Crim. P.1 Nevertheless, the trial
court held a hearing on the motion for a new trial on March 7, 2019. At
1Rule 24.4 provides, in pertinent part: "No motion for new trial …
shall remain pending in the trial court for more than sixty (60) days after
pronouncement of sentence …." In this case, the 60th day after
pronouncement of sentence was January 27, 2019; however, because that
day was a Sunday, the motion was deemed denied on Monday, January
28, 2019. See Rule 1.3(a), Ala. R. Crim. P.; Bryant v. State, 29 So. 3d 928,
935 n.4 (Ala. Crim. App. 2009).
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the conclusion of the hearing, the trial court entered an order purportedly
denying the motion for a new trial. After January 28, 2019, however, the
trial court did not have jurisdiction to rule on the motion for a new trial,
and therefore its order purporting to deny the motion was void. See Edgar
v. State, 646 So. 2d 683 (Ala. 1994). The transcript of the hearing on the
motion for a new trial reflects that Morgan again provided an oral notice
of appeal in open court. Neither oral notice of appeal was effective
because neither was given at the time of sentencing. See Rule 3(a)(2),
Ala. R. App. P. See also Ex parte Soule, 892 So. 2d 879, 880 n.1 (Ala.
2004) ("An oral notice of appeal is effective only if it is made at the time
of sentencing.").
Because the deadline by which Fox was required to file a written
notice of appeal of her conviction and sentence is calculated from the date
on which her motion for a new trial was denied by operation of law, her
written notice of appeal was due to be filed on or before March 11, 2019.
See Rule 4(b)(1), Ala. R. App. P. The record in Fox's criminal case, which
Hughston provided as an exhibit to his motion for a summary judgment
in this case, does not contain a timely written notice of appeal.
After the trial court heard Fox's motion for a new trial, the defense
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attorneys filed a motion to withdraw from representing Fox. The trial
court granted the defense attorneys' motion to withdraw on March 25,
2019, but it was not until April 1, 2019, that the trial court appointed
Charlie Bottoms as appellate counsel to represent Fox in her anticipated
appeal. Bottoms promptly filed a written notice of appeal on Fox's behalf
on April 2, 2019. The record in Fox's criminal case reflects that this was
the first written notice of appeal filed therein. On April 11, 2019, the
Alabama Court of Criminal Appeals entered an order requiring Fox to
show cause why her appeal should not be dismissed on the ground that
her notice of appeal was not timely filed. Bottoms filed a response in
which he contended that Fox's appeal should not be dismissed because,
he argued, "[Fox] and/or her trial council [sic] gave an oral notice of
appeal at the sentencing hearing." The Court of Criminal Appeals stayed
the appeal on June 5, 2019.
Bottoms then filed a motion to reinstate the appeal or, in the
alternative, to order a new sentencing hearing for Fox. Bottoms stated:
"The undersigned attorney has reviewed the transcript of the sentencing
hearing provided to him and the record does not reflect that [Fox] gave
an oral notice of appeal at the sentencing hearing." On July 17, 2019, the
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Court of Criminal Appeals dismissed Fox's appeal as untimely. Fox v.
State (No. CR-18-0670, July 17, 2019). That court held that Morgan's oral
notice of appeal after the jury returned its verdict was ineffective and,
therefore, that Bottoms's written notice of appeal was not timely filed.
Bottoms filed an application for rehearing; that court overruled the
application on August 5, 2019. Bottoms then filed a petition for a writ of
certiorari with this Court. We granted the petition, but on December 20,
2019, we quashed the writ, Ex parte Fox (No. 1180913, Dec. 20, 2019),
316 So. 3d 232 (Ala. 2019) (table), and, on the same date, the Court of
Criminal Appeals certified its judgment of dismissal as final.
Meanwhile, on August 12, 2019, Fox wrote a letter to Morgan. The
letter stated, in pertinent part:
"I do not understand the fact of the notice of appeal at my
sentencing hearing can't be found and is not documented, and
apparently we are out of time for my direct appeal. I know you
do not represent me any more, but you did then. Can you
please write me back and let me know (explain) what is going
on."
Fox submitted an affidavit she executed on February 28, 2022, as
evidence in the legal-malpractice action ("the 2022 affidavit"). She
testified as follows in the 2022 affidavit:
"Around February 1, 2020, I learned that my appeal had
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been dismissed by the appellate court because the appeal had
been untimely filed. I was unsure whether Attorneys
Hughston and Morgan, or Attorney Bottoms, had failed to
timely file the appeal. Nor did I know I had a potential claim
against Attorneys Hughston and Morgan for not timely filing
my appeal. I knew I needed to have an attorney look into the
matter for me."
Fox and her parents retained attorney Richard Bite on February
14, 2020, to pursue postconviction relief on her behalf. She testified in
the 2022 affidavit that, to her knowledge, Bite never filed the petition
necessary to commence postconviction proceedings pursuant to Rule 32,
Ala. R. Crim. P. Fox and her parents have filed a separate complaint
against Bite alleging legal malpractice, fraud, conversion, and breach of
contract.
Fox further testified in the 2022 affidavit that, on or about
September 22, 2021, she retained attorney Jerry Blevins, her counsel in
this case, "to look into [her] case and to pursue post-conviction relief." Fox
then testified that it was not until on or about October 1, 2021, that she
"learned that [her] appeal [had been] dismissed because the oral notice
of appeal given by Attorney Morgan [had been] ineffective and learned
for the first time that [she] had a claim against Attorneys Hughston and
Morgan regarding the handling of [her] case."
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On November 5, 2021, Fox sued the defense attorneys under the
Alabama Legal Services Liability Act ("the ALSLA"), § 6-5-570 et seq.,
Ala. Code 1975, alleging legal-malpractice claims. Fox alleged that the
defense attorneys had failed to file a proper and timely notice of appeal
in Fox's criminal case and that they had misrepresented to her that a
proper notice of appeal had been given. On November 22, 2021, Fox filed
a petition pursuant to Rule 32, Ala. R. Crim. P., seeking to pursue an out-
of-time appeal in her criminal case because, she alleged, the defense
attorneys had failed to timely perfect her appeal in that case. Fox's
postconviction case is proceeding separately.
The defense attorneys filed answers and moved to dismiss the
complaint in the legal-malpractice action. The defense attorneys each
filed a motion for a summary judgment, asserting, among other
arguments, that Fox's claims were barred by the two-year statute of
limitations set out in § 6-5-574, Ala. Code 1975, which is a part of the
ALSLA. Fox filed a motion for a partial summary judgment as to liability
and as to a portion of her alleged damages, as well as a motion to strike
certain evidence offered in opposition to her summary-judgment motion.
The trial court set all motions for a hearing. On March 24, 2022, the trial
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court entered a final judgment granting the defense attorneys' summary-
judgment motions, denying Fox's summary-judgment motion, and
denying Fox's motion to strike. Fox appealed.
Standard of Review
" ' "This Court's review of a summary judgment is de
novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So. 2d
72, 74 (Ala. 2003). We apply the same standard of review as
the trial court applied. Specifically, we must determine
whether the movant has made a prima facie showing that no
genuine issue of material fact exists and that the movant is
entitled to a judgment as a matter of law. Rule 56(c), Ala. R.
Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899
So. 2d 949, 952-53 (Ala. 2004). In making such a
determination, we must review the evidence in the light most
favorable to the nonmovant. Wilson v. Brown, 496 So. 2d 756,
758 (Ala. 1986). Once the movant makes a prima facie
showing that there is no genuine issue of material fact, the
burden then shifts to the nonmovant to produce 'substantial
evidence' as to the existence of a genuine issue of material
fact. Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d
794, 797-98 (Ala. 1989); Ala. Code 1975, § 12-21-12.
'[S]ubstantial evidence is evidence of such weight and quality
that fair-minded persons in the exercise of impartial
judgment can reasonably infer the existence of the fact sought
to be proved.' West v. Founders Life Assur. Co. of Fla., 547 So.
2d 870, 871 (Ala. 1989)." ' "
Gooden v. City of Talladega, 966 So. 2d 232, 235 (Ala. 2007) (quoting
Prince v. Poole, 935 So. 2d 431, 442 (Ala. 2006), quoting in turn Dow v.
Alabama Democratic Party, 897 So. 2d 1035, 1038-39 (Ala. 2004)).
"Questions of law are reviewed de novo." Pritchett v. ICN Med. All. Inc.,
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938 So. 2d 933, 935 (Ala. 2006).
Analysis
The dispositive issue in this case is whether Fox timely commenced
her legal-malpractice action against the defense attorneys. As noted by
the parties on appeal, there is a split of authority in our caselaw
concerning when the statute-of-limitations period for a legal-malpractice
action will begin to run. On the one hand, our caselaw has applied the
"damage" approach, under which the limitations period begins to run
from the date on which the client bringing the legal-malpractice action
first sustained an injury or damage. On the other hand, our caselaw also
has applied the "occurrence" approach, under which the limitations
period begins to run from the date on which the act or omission giving
rise to the claim occurred and not when the client first suffered damage.
As demonstrated below, however, we need not elect between these
approaches in the present case because, given the undisputed facts, the
limitations period provided in the ALSLA bars Fox's legal-malpractice
action against the defense attorneys regardless of which approach is
applied.
"When a claim accrues, for statute-of-limitations purposes, is a
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question of law if the facts are undisputed and the evidence warrants but
one conclusion." Kindred v. Burlington N. R.R., 742 So. 2d 155, 157 (Ala.
1999). Fox argues that when the facts are disputed, as she alleges they
are here, the question of accrual of a cause of action for statute-of-
limitations purposes is a question of fact that should be decided by a jury,
citing Jim Walter Homes, Inc. v. Kendrick, 810 So. 2d 645, 750 (Ala.
2001). Despite Fox's argument to the contrary, we find the relevant facts
to be clear and unequivocal; therefore, the dispositive issue here is a
question of law to be reviewed de novo. See Pritchett, 938 So. 2d at 935.
Any action against a licensed attorney that arises in whole or in
part from his or her provision of legal services is governed by the ALSLA.
Price v. Ragland, 966 So. 2d 246, 259 (Ala. 2007). Section 6-5-572(1), Ala.
Code 1975, which is a part of the ALSLA, provides, in pertinent part:
"A legal service liability action embraces all claims for injuries
or damages or wrongful death whether in contract or in tort
and whether based on an intentional or unintentional act or
omission. A legal service[ ] liability action embraces any form
of action in which a litigant may seek legal redress for a wrong
or injury and every legal theory of recovery, whether common
law or statutory, available to a litigant in a court in the State
of Alabama now or in the future."
With regard to the timing for commencing such an action, § 6-5-574
provides:
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"(a) All legal service liability actions against a legal
service provider must be commenced within two years after
the act or omission or failure giving rise to the claim, and not
afterwards; provided, that if the cause of action is not
discovered and could not reasonably have been discovered
within such period, then the action may be commenced within
six months from the date of such discovery or the date of
discovery of facts which would reasonably lead to such
discovery, whichever is earlier; provided, further, that in no
event may the action be commenced more than four years
after such act or omission or failure; except, that an act or
omission or failure giving rise to a claim which occurred before
August 1, 1987, shall not in any event be barred until the
expiration of one year from such date.
"(b) Subsection (a) of this section shall be subject to all
existing provisions of law relating to the computation of
statutory periods of limitations for the commencement of
actions, namely, Sections 6-2-1, 6-2-2, 6-2-3, 6-2-5, 6-2-6, 6-2-
8, 6-2-9, 6-2-10, 6-2-13, 6-2-15, 6-2-16, 6-2-17, 6-2-30, and 6-2-
39[, Ala. Code 1975]; provided, that notwithstanding any
provisions of such sections, no action shall be commenced
more than four years after the act, omission, or failure
complained of; except, that in the case of a minor under four
years of age, such minor shall have until his or her eighth
birthday to commence such action."
Section 6-5-574(a) requires that an action "must be commenced
within two years after the act or omission or failure giving rise to the
claim." Moreover, this section allows for a remedial filing deadline of six
months from the date when the plaintiff discovers the cause of action or
the date when the plaintiff discovers facts that would reasonably lead to
such discovery if the cause of action was not known to the plaintiff during
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the two-year limitations period ("the savings provision"). Section 6-5-
574(b) also subjects the two-year limitations period to other statutes
regarding the computation of statutory limitations periods.
In Denbo v. DeBray, 968 So. 2d 983 (Ala. 2006), this Court
discussed the two different approaches used to determine when a cause
of action in an ALSLA case accrues and the limitations period begins to
run. In Denbo, the Court recognized the "damage" approach applied in
Floyd v. Massey & Stotser, P.C., 807 So. 2d 508 (Ala. 2001), relying in
part on Michael v. Beasley, 583 So. 2d 245 (Ala. 1991), under which the
limitations period begins to run from the date on which the client
bringing the legal-malpractice action sustained an injury or damage. The
Denbo Court also recognized the "occurrence" approach applied in Ex
parte Panell, 756 So. 2d 862 (Ala. 1999) (plurality opinion), and Ex parte
Seabol, 782 So. 2d 212 (Ala. 2000), under which the limitations period
begins to run from the date that the act or omission giving rise to the
claim occurred and not when the client first suffered damage. Although
the Denbo Court recognized the split of authority as to when a legal-
malpractice action accrues, it did not elect to resolve the split. Instead,
the Court held that under either the damage approach or the occurrence
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approach, the client's complaint was untimely. 968 So. 2d at 988-89. The
Court took the same approach in Coilplus-Alabama, Inc. v. Vann, 53 So.
3d 898, 905-07 (Ala. 2010).
In the present case, the defense attorneys argued in the trial court
that, under both the damage approach and the occurrence approach,
Fox's claims "accrued at the latest on March 11, 2019, when Fox allegedly
lost her right to appeal her underlying conviction and sentence based
upon a written notice of appeal not having been filed." Therefore, they
argued, Fox had two years from March 11, 2019, in which to commence
her legal-malpractice action under the ALSLA. The defense attorneys
also argued that Fox learned that she had cognizable legal-malpractice
claims against the defense attorneys no later than August 12, 2019, the
date on which Fox wrote to Morgan inquiring about issues with her
appeal. Therefore, they argued, under the savings provision, Fox had six
months from August 12, 2019, in which to commence her legal-
malpractice action. Because Fox did not commence her legal-malpractice
action until November 5, 2021, the defense attorneys argued, Fox's
claims were time-barred.
Fox asserts, however, that the defense attorneys failed to recognize
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the distinction between the damage approach and the occurrence
approach. Under the occurrence approach, she says, the act of
malpractice occurred on March 11, 2019, the deadline for filing a written
notice of appeal in her criminal case. Fox concedes that, absent the
savings provision, her claims would be time-barred under the occurrence
approach. Fox insists instead that it is the damage approach that applies
to her case and that the legal damage resulting from the defense
attorneys' failure to file a proper notice of appeal occurred on December
20, 2019, when this Court quashed its previously issued writ of certiorari
in her criminal case and the Court of Criminal Appeals certified its
judgment of dismissal as final. After that, Fox says, she then had two
years in which to commence her legal-malpractice action.
In support of her argument, Fox relies on Brewer v. Davis, 593 So.
2d 67 (Ala. 1991). In Brewer, the plaintiffs commenced a legal-
malpractice action that arose out of legal services provided in a will-
contest proceeding. The plaintiffs' attorney filed a petition to remove the
estate from the probate court to the circuit court and then amended the
removal petition to assert grounds to contest the will. The case proceeded
to a trial in which the jury returned a verdict against the proponent of
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the will, i.e., the executrix of the decedent's estate, and the circuit court
entered a judgment for the plaintiffs. The executrix of the will appealed,
and this Court reversed the circuit court's judgment, holding that the
amended removal petition was not a proper complaint asserting a will-
contest claim and, therefore, that the circuit court had not obtained
jurisdiction over the will contest. See Bullen v. Brown, 535 So. 2d 76 (Ala.
1988).
The plaintiffs then filed an ALSLA action in which they alleged that
their attorneys had committed legal malpractice in the will-contest
proceeding. The trial court entered a summary judgment holding that the
plaintiffs' action was untimely. This Court reversed that judgment and
held:
"In Michael v. Beasley, 583 So. 2d 245 (Ala. 1991), this
Court held that the time limits set out in the Legal Services
Liability Act, Ala. Code 1975, § 6-5-570 et seq., are to be
measured from the date of the accrual of the cause of action,
not from the date of the occurrence of the act or omission, and
that a cause of action accrues when some injury occurs giving
rise to a cause of action. In that case, we concluded that the
Michaels sustained a legal injury sufficient for them to
maintain an action at the time a jury verdict was returned
against them and that their cause of action accrued at that
time, not when this Court affirmed the trial court's judgment.
"In the present case, we find that the plaintiffs
sustained a legal injury sufficient for them to maintain an
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action against the [attorneys] when this Court overruled the
application for rehearing in Bullen v. Brown, [535 So. 2d 76(Ala. 1988)]. In this case, unlike Michael v. Beasley, supra,the jury returned a verdict in favor of the plaintiffs and the
plaintiffs sustained no loss or injury until this Court reversed
the trial court's judgment and overruled the [rehearing]
application [in Bullen]."
Brewer, 593 So. 2d at 68-69.
Fox contends that the defense attorneys were under the mistaken
impression that the oral notice of appeal Morgan provided after the jury
returned its verdict was sufficient to perfect Fox's appeal and that
Bottoms arguably thought the same because, she says, he sought review
of that issue in the certiorari petition challenging the judgment
dismissing Fox's appeal to the Court of Criminal Appeals. Fox argues
that the issue was not resolved until December 20, 2019, when this Court
entered an order quashing the writ of certiorari and the Court of Criminal
Appeals certified its judgment dismissing her appeal of her conviction
and sentence as final.
The defense attorneys recognize in this appeal this Court's split of
authority regarding when the limitations period for a legal-malpractice
action begins to run. They argue, however, that it is unnecessary for this
Court to resolve the split at this time because, they say, given the
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undisputed facts of this case, the statute of limitations in § 6-5-574 bars
Fox's claims under either approach. The defense attorneys maintain that
Fox's November 5, 2021, complaint was filed far outside the applicable
two-year limitations period.
Fox concedes on appeal that, absent the savings provision, her
legal-malpractice action is barred under the occurrence approach.
Therefore, we must examine whether her action is timely under the
damage approach or the savings provision. The defense attorneys
maintain that the limitations period began to run under the damage
approach on March 11, 2019, when Fox lost her right to appeal and first
suffered legal damage, not on December 20, 2019, when this Court
quashed the writ of certiorari and the Court of Criminal Appeals certified
its judgment of dismissal as final. The defense attorneys rely on Sirote &
Permutt, P.C. v. Bennett, 776 So. 2d 40, 45 (Ala. 2000) (quoting Michael,
583 So. 2d at 251) ("[E]ven though the plaintiffs' losses 'may have been
compounded subsequently by virtue of the effect' of the judgment …, the
plaintiffs' causes of action accrued when each plaintiff first sustained
appreciable legal damage."). Fox insists that before December 20, 2019,
she had no reason to believe that the courts would not allow her appeal
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to proceed; therefore, she argues, she did not sustain legal damage until
then and her legal-malpractice action, commenced on November 5, 2021,
within two years of December 20, 2019, was timely.
As was the case in Denbo and in Coilplus, there is no need in the
present case for this Court to elect between the occurrence approach and
the damage approach because Fox's claims are untimely under either
approach. Fox's claims clearly are barred under the occurrence approach.
The act or omission giving rise to Fox's claims was the defense attorneys'
failure to file a proper notice of appeal in her criminal case. That act or
omission occurred no later than March 11, 2019, the date on which a
written notice of appeal would have been due. Fox filed her complaint on
November 5, 2021, after the two-year limitations period had run.
Fox's action is also time-barred under the damage approach. Fox
first suffered legal damage on March 11, 2019, when the defense
attorneys did not observe the deadline for filing her appeal in the
criminal case and she lost her right to appeal. 2 Although we need not
2Fox argues that this analysis conflates the damage approach and
the occurrence approach. In other words, she argues that these
approaches must yield different dates/results. She is mistaken. It is
possible (but not necessary) that the act of legal malpractice can occur on
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consider it, legal damage also occurred on July 17, 2019, when the Court
of Criminal Appeals dismissed her appeal. "A cause of action accrues as
soon as the claimant is entitled to maintain an action, regardless of
whether the full amount of the damage is apparent at the time of the first
legal injury." Chandiwala v. Pate Constr. Co., 889 So. 2d 540, 543 (Ala.
2004); Kelly v. Shropshire, 199 Ala. 602, 605, 75 So. 291, 292 (1917)
(holding that the limitations period "begins to run from the time the act
is committed, be the actual damage (then apparent) however slight, and
the statute will operate to bar a recovery not only for the present damages
but for damages developing subsequently ….") (emphasis added)). Thus,
we do not find persuasive Fox's argument that she did not sustain legal
damage until this Court entered its judgment on December 20, 2019.
Fox next argues that, even if her claims are time-barred under both
the occurrence approach and the damage approach, the savings provision
extended the limitations period. Fox contends that she did not learn that
she had cognizable legal-malpractice claims against the defense
attorneys until October 1, 2021; therefore, she argues, under the savings
one date and the result (i.e., the damage or injury) can occur on a different
date.
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provision, she had six months from that date in which to commence her
legal-malpractice action. The defense attorneys contend that it is clear
from Fox's letter to Morgan that she knew by August 12, 2019, at the
latest, that the defense attorneys had not filed a written notice of appeal
in her criminal case. By that time, the defense attorneys argue, Fox had
actual knowledge of facts that reasonably would have led to the discovery
of her legal-malpractice claims. Moreover, the defense attorneys say, Fox
has not offered any evidence to support even an inference that her claims
"could not reasonably have been discovered within [the two-year
limitations] period." § 6-5-574(a). They conclude that Fox cannot invoke
the savings provision because it applies only if the cause of action was
not discovered and could not reasonably have been discovered within the
two-year limitations period.
Fox points out the portion of her August 12, 2019, letter in which
she wrote that she did not understand why a notice of appeal was not
documented in the transcript of her sentencing hearing. She argues that,
contrary to the defense attorneys' argument, the letter proves that she
did not then know that she had cognizable legal-malpractice claims
because, she says, she thought that Morgan had given a proper notice of
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appeal at the transcript of the sentencing hearing. We disagree.
Fox's August 12, 2019, letter shows that Fox was aware by that date
that the transcript of the sentencing hearing in her criminal case did not
contain a notice of appeal and that the time in which she could appeal
her criminal case as a matter of right had expired. Accordingly, Fox had
knowledge of facts that reasonably should have led her to discover that
she had legal- malpractice claims against the defense attorneys.
Therefore, the savings provision provided her six months from that date
-- or until February 12, 2020 -- to commence her legal-malpractice action.
Because Fox did not commence her action until November 5, 2021,
however, the savings provision does not provide relief.
Finally, in the alternative, Fox argues that the defense attorneys'
misrepresentation to her that they had given a proper notice of appeal
after the jury had returned its verdict tolled the two-year limitations
period under § 6-5-574(a). As stated previously in this opinion, § 6-5-
574(b) makes the provisions of subsection (a) "subject to all existing
provisions of law relating to the computation of statutory periods of
limitations for the commencement of actions," including § 6-2-3, Ala.
Code 1975. Section 6-2-3 is applicable to fraud claims and provides:
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"In actions seeking relief on the ground of fraud where
the statute has created a bar, the claim must not be
considered as having accrued until the discovery by the
aggrieved party of the fact constituting the fraud, after which
he must have two years within which to prosecute his action."
This Court has previously held that the tolling provision of § 6-2-3 applies
in ALSLA actions. See Leighton Ave. Off. Plaza, Ltd. v. Campbell, 584
So. 2d 1340, 1344 (Ala. 1991).
Fox had the burden of proving that her fraud claim comes within
the tolling provision of § 6-2-3. Seabol, 782 So. 2d at 215. Fox contends
that she did not learn that she had cognizable legal-malpractice and
fraud claims against the defense attorneys until on or about October 1,
2021. In support of her contention, Fox points to the 2022 affidavit in
which she stated that on or about February 1, 2020, she learned that her
appeal in the criminal case had been dismissed because a notice of appeal
had not been timely filed, that she was not sure which attorney was at
fault, that she did not know at that time that she had a potential claim
against the defense attorneys for mishandling her case, and that she did
not learn that she had cognizable legal-malpractice claims against the
defense attorneys until on or about October 1, 2021. She maintains that,
based on this alleged October 1, 2021, discovery date, her legal-
23
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malpractice action was commenced well within the two-year period set
out in § 6-2-3 and within the four-year bar applicable to all claims
brought under the ALSLA. At the very least, Fox argues, when she
learned about her potential causes of action is a disputed issue of fact
that made the entry of a summary judgment improper.
The limitations period applicable to fraud claims under § 6-2-3
begins to run when a party actually discovers the fraud or when he or she
learns of facts that would have caused a reasonable person to inquire
further. Dickinson v. Land Devs. Constr. Co., 882 So. 2d 291, 298 (Ala.
2003). Fox's August 12, 2019, letter provides evidence in her own words
that she had actual knowledge as of that date that the defense attorneys'
representation that they had filed a notice of appeal on her behalf was
false. Moreover, ordinary diligence would have required inquiry on Fox's
part about the facts underlying the defense attorneys' alleged
representations to her that her appeal had been properly perfected.
"A cause of action for fraud accrues, and 'the limitations
period begins to run[,] when the plaintiff was privy to facts
which would " 'provoke inquiry in the mind of a [person] of
reasonable prudence, and which, if followed up, would have
led to the discovery of the fraud.' " ' Auto-Owners Ins. Co. v.
Abston, 822 So. 2d 1187, 1195 (Ala. 2001) (quoting Willcutt v.
Union Oil Co., 432 So. 2d 1217, 1219 (Ala. 1983), quoting in
turn Johnson v. Shenandoah Life Ins. Co., 291 Ala. 389, 397,
24
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281 So. 2d 636, 643 (1973))."
Ex parte Dow AgroSciences LLC, 299 So. 3d 952, 959 (Ala. 2020). Under
these circumstances, tolling under § 6-2-3 would have ended no later than
August 12, 2019, and, thus, Fox's action is untimely.
Conclusion
Because Fox's legal-malpractice action was untimely under the
ALSLA and because she failed to demonstrate that the tolling provision
in § 6-2-3 applies in her case, we affirm the trial court's summary
judgment in favor of the defense attorneys. Given our resolution of this
issue, we need not address the other arguments made by the parties.
AFFIRMED.
Shaw, Wise, Bryan, Stewart, and Cook, JJ., concur.
Mitchell, J., concurs specially, with opinion.
Parker, C.J., concurs in part and concurs in the result, with opinion.
Mendheim, J., concurs in the result.
Sellers, J., dissents.
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MITCHELL, Justice (concurring specially).
I concur in the main opinion because it reaches the correct result
and faithfully applies our precedents. That said, I agree with Chief
Justice Parker that the damage approach to interpreting § 6-5-574, Ala.
Code 1975, is plainly incorrect. In an appropriate future case, when
asked to do so by the parties, the Court should clarify this area of the law
and definitively hold that the occurrence approach, not the damage
approach, is required by the statute's text.
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PARKER, Chief Justice (concurring in part and concurring in the result).
I agree that Erica Rae Fox's legal-malpractice claims are barred by
the time-bar statute in the Alabama Legal Services Liability Act
("ALSLA"), § 6-5-570 et seq., Ala. Code 1975. In my view, however, this
Court should establish, without further delay, that the occurrence rule is
the only correct interpretation of the two-year provision in § 6-5-574(a).
The occurrence rule is required by the language of the provision, whereas
the accrual rule (sometimes called the "damage rule") directly contradicts
that language. This Court's original adoption of the accrual rule was built
on a flawed foundation. And our continued attempts to apply both rules
simultaneously depart from our institutional role of clarifying the law
and impose unnecessary burdens on the resources of litigants and courts.
I also write to point out the need for this Court to develop a coherent
theory of accrual of a legal-malpractice cause of action. Accrual will be
relevant to the statutory analysis even after (as I hope) the accrual rule
is abandoned. And the results of cases often hinge on the date of accrual.
But our prior cases have been very inconsistent in pinpointing when a
cause of action accrues, so working out a coherent theory will be
necessary to ensure predictability and adherence to the rule of law.
27
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I. Occurrence rule versus accrual rule
The two-year provision of ALSLA's time-bar statute provides: "All
legal service liability actions against a legal service provider must be
commenced within two years after the act or omission or failure giving
rise to the claim, and not afterwards ...." § 6-5-574(a), Ala. Code 1975
(emphasis added). This Court should establish the occurrence rule and
abandon the accrual rule because the text of the statute requires the
occurrence rule.
A. The text requires the occurrence rule
The two-year provision creates a bright line for when its time-bar
period commences: the occurrence of the lawyer's "act or omission or
failure." § 6-5-574(a), Ala. Code 1975. The provision does not reference
accrual of a cause of action, incurring legal injury, or experiencing
damage. "[T]he Alabama Legislature, by adopting the 'act or omission or
failure' language ..., rejected the damage rule .... This Court is bound by
the unambiguous language of § 6-5-574(a) and must give effect to that
language ...." Ex parte Panell, 756 So. 2d 862, 867 (Ala. 1999) (plurality
opinion); see also Ex parte Seabol, 782 So. 2d 212, 214 (Ala. 2000)
(quoting with approval Panell plurality's articulation of the occurrence
28
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rule); Dennis v. Northcutt, 887 So. 2d 219, 221 (Ala. 2004) (plurality
opinion) (same); Roberts v. Lanier, 72 So. 3d 1174, 1184-85 (Ala. 2011)
(applying occurrence rule to two-year provision). The language of the two-
year provision unambiguously requires us to apply the occurrence rule.
In some cases, the occurrence rule that is required by the plain
meaning of the two-year provision may have seemingly harsh or unfair
results. But it is not this Court's role to "displace the legislature by
amending statutes to make them express what we think the legislature
should have done. Nor is it this Court's role to assume the legislative
prerogative to correct defective legislation ...." Siegelman v. Chase
Manhattan Bank (USA), Nat'l Ass'n, 575 So. 2d 1041, 1051 (Ala. 1991).
"Fidelity to … separation-of-powers … requires us to
determine and adhere to the meaning of the statute's text,
even if doing so leads to an inefficient or undesirable
result. [DeKalb Cnty. LP Gas Co. v. Suburban Gas, Inc., 729
So. 2d 270, 276 (Ala. 1998)]; Ex parte T.B., 698 So. 2d 127,
129-30 (Ala. 1997). Therefore, 'our inquiry begins with the
language of the statute, and if the meaning of the statutory
language is plain, our analysis ends there.' Ex parte
McCormick, 932 So. 2d 124, 132 (Ala. 2005). We must
'interpret that language to mean exactly what it says.' IMED
Corp. v. Systems Eng'g Assocs. Corp., 602 So. 2d 344, 346 (Ala.
1992)."
Lang v. Cabela's Wholesale, LLC, [Ms. 1200851, June 24, 2022] ___ So.
3d ___, ___ (Ala. 2022). Our role is to apply a statute as it is written and
29
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leave for the Legislature to decide whether and how it will be rewritten.
B. Clarifying the nature of the two-year provision
I suspect that much of this Court's difficulty interpreting the two-
year provision has resulted from its heterogenous design. Although we
have often referred to it as a statute of limitations, it is actually a hybrid
between a statute of limitations and a statute of repose.
A statute of limitations imposes a time-bar period that runs from
accrual of the cause of action. See Garrett v. Raytheon Co., 368 So. 2d
516, 518-19 (Ala. 1979), overruled on other grounds, Griffin v. Unocal
Corp., 990 So. 2d 291 (Ala. 2008); Payne v. Alabama Cemetery Ass'n, 413
So. 2d 1067, 1072 (Ala. 1982); Black's Law Dictionary 1707 (11th ed.
2019). And a statute of limitations may be subject to exceptions. See
Pinigis v. Regions Bank, 977 So. 2d 446, 449 (Ala. 2007). In contrast, a
statute of repose imposes a time-bar period that runs from a specific
event such as the defendant's act or omission, regardless of when the
cause of action accrues. See Black's Law Dictionary 1707 (11th ed. 2019);
54 C.J.S. Limitations of Actions § 28 (2020); 3 Ronald E. Mallen, Legal
Malpractice § 23:1 (2023 ed.). And a statute of repose is ordinarily not
subject to exceptions. See Pinigis, 977 So. 2d at 449-50; Mallen, supra.
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The two-year provision resembles a statute of limitations because it is
subject to the exception contained in the discovery (or "savings")
provision that follows it in § 6-5-574(a). The two-year provision may also
be subject to the general statute-of-limitations exceptions incorporated
into § 6-5-574(b). More importantly for present purposes, however, the
two-year provision's time-bar period functions as a statute of repose
because it expressly runs from a specific event: the lawyer's "act or
omission or failure." This clarification is important because many prior
criticisms of the occurrence-rule interpretation of the two-year provision
have been rooted in a misunderstanding of its nature and function.
C. This Court's original adoption of the accrual rule
was fundamentally flawed
This Court first applied the accrual rule to ALSLA in Michael v.
Beasley, 583 So. 2d 245 (Ala. 1991). In Michael, we never discussed the
language of the two-year provision. Instead, we were interpreting a
different provision that specified the date that ALSLA would be in force,
§ 6-5-581, Ala. Code 1975. The following was the totality of our analysis
supporting adoption of the accrual rule:
"[ALSLA] ... applies only to actions against legal service
providers based on 'acts or omissions accruing [occurring?]
after April 12, 1988.' § 6-5-581. It is unclear whether the
31
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legislature intended [ALSLA] to apply to acts or omissions
occurring after April 12, 1988, or causes of actions [sic]
accruing after that date. However, in reading § 6-5-574(a) and
§ 6-5-581 together, in considering the legislative intent
expressed in § 6-5-570, and in comparing [ALSLA] to the
Alabama Medical Liability Act, § 6-5-480 et seq. (hereinafter
'the AMLA['])[,] and the Alabama Medical Liability Act of
1987,[] § 6-5-540 et seq. (hereinafter 'the 1987 Act'), we
determine that the legislature intended [ALSLA] to apply to
causes of actions [sic] 'accruing' after April 12, 1988, and not
to acts or omissions 'occurring' after that date.2
"____________________
"2In enacting the 1987 Act, Act No. 87-189, Ala. Acts
1987, codified at Ala. Code 1975, § 6-5-540 et seq., the
legislature included § 13 (codified at § 6-5-552), a provision
similar to § 6-5-581: 'This article applies to all actions against
health care providers based on acts or omissions accruing
[occurring?] after June 11, 1987.' This Court had previously
interpreted the statute of limitations in medical malpractice
actions as being based on accrual and not occurrence.
"In Street v. City of Anniston, 381 So. 2d 26, 31 (Ala.
1980), the Court stated that 'the Medical Liability Act
contains a traditional statute of limitations, one which
commences the running of the statute from the accrual of the
cause of action, and is not subject to constitutional infirmity
under [Article IV,] § 45[, Ala. Const. 1901 (requiring that a
legislative bill's subject be clearly expressed in its title)].'
(Emphasis added.) See Bowlin Horn v. Citizens Hosp., 425 So.
2d 1065 (Ala. 1982); Thomas v. Niemann, 397 So. 2d 90 (Ala.
1981) (Jones, J., concurring); Ramey v. Guyton, 394 So. 2d 2(Ala. 1980). This same rationale applies to [ALSLA]."
Id. at 246-47 (bracketed words followed by question marks in original).
At the end of the opinion, without having engaged in any further analysis
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on this point or having discussed the language of any ALSLA provision
other than § 6-5-581 as to this point, we then stated a broad holding about
all of ALSLA's time limits: "[T]he time limits in [ALSLA] are to be
measured from the date of the accrual of a cause of action and not from
the date of the occurrence of the act or omission." Id. at 252.
In hindsight, it is hard to imagine an interpretation more
diametrically opposed to the relevant statutory language. The two-year
provision's language is "within two years after the act or omission or
failure giving rise to the claim." § 6-5-574(a). Michael interpreted that
language as "not from the date of the occurrence of the act or omission."
583 So. 2d at 252. Moreover, whatever ambiguity may have existed in the
provision that Michael did examine -- § 6-5-581, which contained the odd
phrase "acts or omissions accruing" -- that ambiguity was completely
absent from the two-year provision of § 6-5-574(a).
Further, Michael's reliance on Street v. City of Anniston, 381 So. 2d
26 (Ala. 1980), was misplaced because Michael disconnected the concepts
of act/omission and accrual, whereas Street had expressly connected
them. In Street, a patient sued a doctor, alleging medical malpractice.
381 So. 2d at 27-28. The doctor raised the time-bar statute in the
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Alabama Medical Liability Act. Id. at 28. The statute provided that
medical-malpractice actions "must be commenced within two years next
after the act, or omission, or failure giving rise to the claim," § 6-5-482(a),
using the same language as was later used in ALSLA's two-year
provision. The patient argued that the statute violated Article IV, § 45,
of the Alabama Constitution of 1901, which required that the subject of
each law " 'be clearly expressed in its title.' " Id. at 30. This Court noted
that the statute was titled as " 'a statute of limitations.' " Id. at 31.
However, if the statute's time-bar period was commenced by the act or
omission, rather than the patient's legal injury, the time-bar period could
theoretically expire before the patient received legal injury. In such a
case, the patient's claim would be barred before the cause of action
accrued. See id. at 30. That possibility would cause the statute to be a
statute of repose (which Street described as a "grant of immunity") rather
than a statute of limitations. And that would mean that the statute had
been misdescribed as a "statute of limitations" in its title and thus
violated § 45. See id. at 30-31.
How did this Court avoid that conundrum in Street? We
circumvented the constitutional issue by holding that, in medical-
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malpractice cases, act/omission and injury/accrual are always
simultaneous events. Id. at 31. Specifically:
"[O]ur case law has established that, in [medical-] malpractice
actions, legal injury occurs at the time of the negligent act or
omission, whether or not the injury is or could be discovered
within the statutory period. Thus, the [Alabama] Medical
Liability Act contains a traditional statute of limitations, one
which commences the running of the statute from the accrual
of the cause of action, and is not subject to constitutional
infirmity under § 45."
Id. (citations omitted). In other words, because act/omission was
necessarily simultaneous with accrual, the statute's "act, or omission, or
failure" language was synonymous with accrual.
When we later interpreted ALSLA's two-year provision in Michael,
however, we relied on Street to support exactly the opposite proposition.
In Michael, we held that ALSLA's two-year period ran "from the date of
the accrual of a cause of action and not from the date of the occurrence of
the act or omission." 583 So. 2d at 252 (emphasis added). In that way,
Michael founded its conclusion on a case that was premised on the
opposite of that conclusion. 3
3Notably, Street's premise of simultaneous act/omission and accrual
did not age well. Within a year, we were already backing away from it
and separating the time of accrual from the time of the medically
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Therefore, Michael's adoption of the accrual rule was not only
contrary to the language of the statute but also founded on precedent that
did not support it.
D. The problem of coexisting divergent rules
Since a plurality of this Court attempted to return to the statutory
language in Ex parte Panell, 756 So. 2d 862 (Ala. 1999), this Court has
spent two decades trying to simultaneously follow the (incompatible)
negligent act or omission. See Ramey v. Guyton, 394 So. 2d 2 (Ala. 1980)
(plurality opinion); id. at 6 (Shores, J., concurring specially); Thomas v.
Niemann, 397 So. 2d 90, 94 (Ala. 1981) (Jones, J., concurring specially).
Initially, some Justices tried to adhere to Street and bridge the gap
between act/omission and accrual by employing such creative yet dubious
concepts as a doctor's "impliedly continuing act," a doctor's omission by
"failure to discontinue" a medication prescription, and an extension of a
doctor's act by the patient's later acting on the doctor's advice. See
Ramey, 394 So. 2d at 6 (Shores, J., concurring specially); Thomas, 397
So. 2d at 94 (Jones, J., concurring specially). Since then, our distance
from Street's simultaneousness premise has increased with time. We
have made increasingly clear that act/omission and accrual are neither
synonymous nor necessarily simultaneous. See Guthrie v. Bio-Med.
Lab'ys, Inc., 442 So. 2d 92, 95 (Ala. 1982); Colburn v. Wilson, 570 So. 2d
652, 654 (Ala. 1990); Mobile Infirmary v. Delchamps, 642 So. 2d 954, 958
(Ala. 1994); Crosslin v. Health Care Auth. of Huntsville, 5 So. 3d 1193,
1197-99 & n.2 (Ala. 2008) (plurality opinion); id. at 1199 (Lyons, J.,
concurring in part and concurring in result); Cutler v. University of
Alabama Health Servs. Found., 215 So. 3d 1065, 1068-73 (Ala. 2016)
(plurality opinion); id. at 1073-74 (Murdock, J., concurring specially).
Thus, the foundation of Street's interpretation of the time-bar statute in
the Alabama Medical Liability Act has been substantially undermined.
36
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occurrence and accrual rules for applying ALSLA's two-year provision.
We have justified that ambivalence by the fact that both rules have, at
least in those cases, led to the same result. See Floyd v. Massey & Stotser,
P.C., 807 So. 2d 508, 511-12 (Ala. 2001); Taylor v. Stevenson, 820 So. 2d
810, 813 (Ala. 2001) (self-acknowledged dicta); Denbo v. DeBray, 968 So.
2d 983, 988-90 (Ala. 2006); Coilplus-Alabama, Inc. v. Vann, 53 So. 3d 898,
906-07 (Ala. 2010); cf. Ex parte Edwards, 299 So. 3d 238, 243 & n.4 (Ala.
2020). But that course of action is inconsistent with this Court's
institutional role. This Court exists not merely to decide the results of
individual cases, but -- more importantly -- to clarify the law "for the
benefit of lower courts, attorneys, and the public. This duty derives from
our constitutional role, as 'the highest court of the state,' of exercising
'general supervision and control of courts of inferior jurisdiction,' Art. VI,
§ 140(a) and (b), Ala. Const. 1901 (Off. Recomp.)." Ex parte Self, [Ms.
1200431, Sept. 10, 2021] ___ So. 3d ___, ___ (Ala. 2021) (Parker, C.J.,
concurring specially). We cannot fulfill this duty by continuing to
perpetuate two contradictory rules for applying the same statute.
Further, there are real-world consequences to this Court's
continued halting between two opinions. In every ALSLA case in which
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the two-year provision is raised, the parties' counsel and potentially the
trial and appellate courts must analyze the facts under both the
occurrence rule and the accrual rule. That dual analysis may include the
whole waterfall of each rule's potential effects on the application of the
several other provisions of the ALSLA time-bar statute. This exercise
imposes real costs on clients and judicial resources. And those costs
cannot continue to be justified when it has become clear that one rule is
right and the other is wrong.
Accordingly, this Court should cease trying to simultaneously ride
the tracks of two divergent rules (and forcing litigants and lower courts
to do so), leave behind the mistaken accrual rule, and follow the language
of the statute.
II. Accrual of a legal-malpractice cause of action
If, as I hope, this Court in a future case establishes the occurrence
rule and abandons the accrual rule under the two-year provision of § 6-
5-574(a), Ala. Code 1975, the concept of accrual will still be relevant
under the statute's discovery provision. The discovery provision
indirectly links the commencement of its six-month period to accrual:
"[I]f the cause of action is not discovered and could not
reasonably have been discovered within [the initial two-year]
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period, then the action may be commenced within six months
from the date of such discovery or the date of discovery of facts
which would reasonably lead to such discovery, whichever is
earlier ...."
§ 6-5-574(a) (emphasis added). In light of accrual's continuing relevance,
its proper application is worth examining.
In this case, under our precedent, Fox's causes of action based on
the defense attorneys' failure to timely appeal accrued when the Court of
Criminal Appeals dismissed the appeal on that basis. In general, when a
lawyer's mistake occurs mid-litigation and is a type of mistake that could
result in a final adjudication adverse to the client, we have held that the
malpractice cause of action accrues when a court first enters such an
adverse adjudication. See Brewer v. Davis, 593 So. 2d 67 (Ala. 1992);
Welborn v. Shipman, 608 So. 2d 334 (Ala. 1992); Cantrell v. Stewart, 628
So. 2d 543 (Ala. 1993); Turner v. Barnes, 687 So. 2d 197, 198-99 (Ala.
1997). This rule is consistent with reasoned scholarly commentary. See
Tyler T. Ochoa & Andrew J. Wistrich, Limitation of Legal Malpractice
Actions: Defining Actual Injury and the Problem of Simultaneous
Litigation, 24 Sw. U.L. Rev. 1, 2-3, 14-25, 27-32, 65-67 (1994); 3 Ronald
E. Mallen, Legal Malpractice § 23:39 (2023 ed.). But see Mallen, supra,
§§ 23:38, 23:40 (taking positions different from that rule).
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Nevertheless, it is worth noting that there is tension and
inconsistency among this Court's opinions regarding when a legal-
malpractice cause of action accrues. We have variously held that it
accrues when:
• the lawyer's act or omission occurs. See Mardis v. Shackleford, 4
Ala. 493, 504, 506-08 (1842); Lomax v. Gibson, 584 So. 2d 445(Ala. 1991); Leighton Ave. Off. Plaza, Ltd. v. Campbell, 584 So.
2d 1340, 1342-43 (Ala. 1991); Mississippi Valley Title Ins. Co. v.
Hooper, 707 So. 2d 209, 211-13 (Ala. 1997); Wesson v. McCleave,
Roberts, Shields & Green, P.C., 810 So. 2d 852 (Ala. 2001); Price
v. Ragland, 966 So. 2d 246, 247-61 (Ala. 2007); Ex parte
Edwards, 299 So. 3d 238, 240, 243 & n.4 (Ala. 2020).
• the client learns of the act or omission. See Floyd v. Massey &
Stotser, P.C., 807 So. 2d 508 (Ala. 2001).
• the client acts in reliance on the act or omission. See McConico
v. Romeo, 561 So. 2d 523, 524-25 (Ala. 1990); Ladner v. Inge, 603
So. 2d 1012 (Ala. 1992); Denbo v. DeBray, 968 So. 2d 983, 984-
90 (Ala. 2006); Coilplus-Alabama, Inc. v. Vann, 53 So. 3d 898,
40
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899-908 (Ala. 2010); cf. Sirote & Permutt, P.C. v. Bennett, 776
So. 2d 40 (Ala. 2000) (third party).
• an opposing party files suit against the client based on the act or
omission. See Leighton, 584 So. 2d at 1342-43.
• the client incurs legal fees or other expenses, or experiences
emotional harm, as a result of the act or omission. See Ex parte
Burnham, Klinefelter, Halsey, Jones & Cater, P.C., 674 So. 2d
1287 (Ala. 1995); Denbo, 968 So. 2d at 984-90.
• a court enters a judgment against the client as a result of the act
or omission. See Cofield v. Smith, 495 So. 2d 61 (Ala. 1986);
Brewer, 593 So. 2d 67; Welborn, 608 So. 2d 334; Cantrell, 628 So.
2d 543; Burnham, 674 So. 2d at 1289; Turner, 687 So. 2d at 198-
99; cf. Michael v. Beasley, 583 So. 2d 245, 245-46, 251-52 (Ala.
1991); Ex parte Panell, 756 So. 2d 862, 869 (Ala. 1999) (plurality
opinion).
One cause of this tension among our opinions may be a fundamental
doctrinal distinction that deeply affects the meaning of accrual but that
our opinions have not clearly recognized. This distinction is the difference
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between contract and tort causes of action. A breach-of-contract cause of
action has often been framed as having four elements: a valid contract,
the plaintiff's performance, the defendant's nonperformance, and
resulting damages. E.g., Childs v. Pommer, 348 So. 3d 379, 387 (Ala.
2021); Barrett v. Radjabi-Mougadam, 39 So. 3d 95, 98 (Ala. 2009). But
that is not quite accurate. On a breach-of-contract claim, a plaintiff may
recover nominal damages; concrete injury is not required. See Knox
Kershaw, Inc. v. Kershaw, 552 So. 2d 126, 128 (Ala. 1989); Avis Rent A
Car Sys., Inc. v. Heilman, 876 So. 2d 1111, 1120 (Ala. 2003). Thus, proof
of damages or concrete injury is not actually required for a breach-of-
contract cause of action and thus cannot be an element. (Of course, if the
plaintiff wants to recover more than nominal damages, he must prove
them. But that is different from saying that damages are an element, an
essential component, of the cause of action.) Thus, in reality, there are
only three elements of a breach-of-contract cause of action, ending with
the defendant's nonperformance. Once the plaintiff performs and the
defendant does not, even if the plaintiff has not received any concrete or
perceptible injury, all elements are present and the cause of action
accrues. See Stephens v. Creel, 429 So. 2d 278, 280-83 (Ala. 1983).
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In contrast, on tort claims, nominal damages are generally not
available. See Ex parte Stonebrook Dev., L.L.C., 854 So. 2d 584, 589 (Ala.
2003) (quoting Matthews Bros. Constr. Co. v. Stonebrook Dev., L.L.C.,
854 So. 2d 573, 578 (Ala. Civ. App. 2001)) (" 'Nominal damages, to
vindicate a technical right, cannot be recovered in a negligence action,
where no actual loss has occurred.' "). Thus, damages is a required
element. Stephens, 429 So. 2d at 280. And that means that a tort cause
of action generally accrues only when the plaintiff receives concrete,
perceptible harm. See id. at 281.
Here is the rub: Legal malpractice can be conceptualized as either
a contract cause of action or a tort cause of action. See George L. Blum,
Annotation, When Statute of Limitations Begins to Run on Action
Against Attorney for Malpractice Based upon Negligence -- View that
Statute Begins to Run from Time of Occurrence of Negligent Act or
Omission, 11 A.L.R. 6th 1, at § 2 (2006) ("[I]n the view of some courts, an
action to recover for an attorney's malpractice may sound either in
contract, on the theory that the defendant breached the obligations of his
or her employment, or in tort, on the theory that the defendant was
negligent."); id. at § 3 ("Typically, an action for legal malpractice may be
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brought on contract or tort grounds."); Blanche M. Manning, Legal
Malpractice: Is It Tort or Contract?, 21 Loy. U. Chi. L.J. 741 (1990); Ex
parte Watters, 212 So. 3d 174, 182 (Ala. 2016) ("[T]he issue whether the
[present legal-malpractice] claim sounds in tort, in contract, or in both
for that matter, is sharply disputed by the parties."). As a contract cause
of action, it accrues at the time of breach -- the lawyer's act or omission.
See Wilcox v. Executors of Plummer, 29 U.S. (4 Pet.) 172, 182 (1830). As
a tort cause of action, it accrues at the time of damages -- the client's
reception of concrete, perceptible harm. Cf. Mylar v. Wilkinson, 435 So.
2d 1237, 1239 (Ala. 1983); Hall v. Thomas, 456 So. 2d 67 (Ala. 1984).
Now, if the solution were simply to inspect the complaint to see
which way the client pleaded the claim, in contract or in tort, there would
be little cause for consternation. But that easy solution does not exist, at
least not anymore, because ALSLA says that its newly created omnibus
cause of action subsumes all previous legal-malpractice causes of action
in both contract and tort, see §§ 6-5-572(1), 6-5-580. And ALSLA does not
clearly indicate whether its new omnibus cause of action requires
damages. Compare § 6-5-572(1) (defining "[l]egal service liability action"
as "[a]ny action against a legal service provider in which it is alleged that
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some injury or damage was caused in whole or in part by the legal service
provider's violation of the standard of care ...." and providing that [a] legal
service liability action embraces all claims for injuries or damages or
wrongful death ...." (emphasis added)) and -572(4) (defining "[b]reach of
the standard of care" as "[t]he failure by a legal service provider to comply
with the applicable standard of care the breach of which proximately
causes the injury or damages or wrongful death" (emphasis added)), with
§ 6-5-572(1) (providing that "[a] legal service liability action embraces all
claims for injuries or damages or wrongful death whether in contract or
in tort ...." and that "[a] legal services liability action embraces any form
of action in which a litigant may seek legal redress for a wrong or an
injury and every legal theory of recovery ...." (emphasis added)). So
ALSLA does not make clear when its cause of action accrues.
Faced with this conundrum, I believe that the best solution is to
look to pre-ALSLA common law's articulation of the elements of a legal-
malpractice cause of action. Before ALSLA, our most recent cases treated
legal malpractice as a tort cause of action requiring proof of damages. See
Tyree v. Hendrix, 480 So. 2d 1176, 1177 (Ala. 1985); Johnson v. Horne,
500 So. 2d 1024, 1026 (Ala. 1986). But see Mardis v. Shackleford, 4 Ala.
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493, 506-08 (1842) (older case treating legal-malpractice claim as a
breach-of-contract cause of action for which proof of damages was not
required). Moreover, there is much common sense in that damages
requirement. Without concrete, perceptible harm, the vast majority of
clients will have no reason to sue their lawyers. Nor, in most
circumstances, is it clear why courts should be open to adjudicating
technical breaches of attorney-client contracts that resulted in no harm.
And given these realities, it makes little sense to require a client to sue
for a harmless breach within a certain time or forfeit his claim. Instead,
when it comes to legal malpractice, the modern maxim is apropos: No
harm, no foul.
A second cause may lie behind the inconsistency among our legal-
malpractice accrual cases. It seems that we have not clearly and
consistently articulated a general theory for when accrual occurs.
Instead, in each case, we have mainly tracked the arguments of the
parties regarding when accrual occurred. The problem is that the parties
have not been motivated by a search for a consistent theory. Rather, they
have been motivated by one simple fact, determined by basic math: the
date exactly two years before the action was commenced. Defendants
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must find a plausible date of accrual before that date. Plaintiffs must find
a plausible date of accrual after that date. To both sides, it matters little
which precise event triggered accrual, as long as it is on the right side of
that date. So if we want a consistent theory for accrual, we cannot depend
on the parties to work it out for us. Instead, we might find benefit in the
work of legal scholars who have attempted to frame a coherent theory of
accrual. See, e.g., Mallen, supra, § 23:25 ("For evaluating [accrual of]
legal malpractice claims, a ... useful definition of injury is the loss or
impairment of a right, remedy or interest, or the imposition of a liability.
These are the spectrum of injuries sustained by clients." (footnote
omitted)); Ochoa & Wistrich, supra.
Because the relevance of accrual will survive even if (as I hope) the
accrual rule of Michael does not, and because the date of accrual will
often be dispositive under the discovery provision, it is worth this Court's
effort to work out a coherent theory of accrual of a cause of action for legal
malpractice. As a starting point, I propose adhering to a tort-based
requirement of damages and factoring in the impact of subsequent court
rulings on mid-litigation malpractice.
III. Conclusion
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As always, courts' interpretation of a statute must be bound to the
text. When the meaning is plain, we must not ignore, evade, distort,
improvise on, modify, or otherwise depart from that meaning. This Court
has spent a decade departing from the plain meaning of the two-year
provision of ALSLA's time-bar statute and another two decades
straddling the divide between that plain meaning and that departing
interpretation. It is time, in my view, that we rectify those errors and re-
anchor our jurisprudence to the text.
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