Last Act Triggers Malpractice Statute Of Limitations

The Wyoming Supreme Court affirmed as untimely the dismissal of a legal malpractice claim.

Defendants had represented plaintiff in her divorce

On May 31, 2019, the district court issued an oral ruling granting the parties a divorce and dividing the marital property and debt. Ms. Groff was awarded property valued at $3,529,944.00, while Mr. Groff was awarded property valued at $3,525,858.17. Ms. Groff was held in contempt for failing to return personal property to Mr. Groff, but was allowed to purge her contempt if she arranged to have the property returned. A divorce decree consistent with the oral ruling was entered June 19, 2019

On June 27, 2019, Mr. Scoggin sent Ms. Groff a letter declining to further represent her based upon her failure to pay attorney fees. In this letter, Mr. Scoggin informed Ms. Groff she had until July 22, 2019, to file an appeal. Mr. Scoggin filed a motion to withdraw as Ms. Groff’s attorney on July 12, 2019; an order allowing counsel’s withdrawal followed on July 17, 2019.

Ms. Groff filed her complaint for legal malpractice against Mr. Scoggin and the Firm on June 7, 2021. The complaint alleged:

While Mr. Scoggin’s representation of [Ms. Groff] fell below the accepted standard of care throughout the whole case, his failure to do anything about undisclosed evidence, his failure to mitigate damages for [Ms. Groff] with further filings after the Decree of Divorce, and his withdrawal of representation before the 30 days was up to be able to fix the errors in the Decree was malpractice.

Below

Relying on W.S. § 1-3-107(a), the district court found May 24, 2019, was “the latest potential date when any ‘alleged act, error or omission occurred.’” Because Ms. Groff’s malpractice action was not filed within two years of that date, the district court concluded the action was untimely. The parties stipulated to Appellees dismissing their counterclaim; the district court dismissed the counterclaim with prejudice. This appeal followed.

The court

Ms. Groff asks us to recognize that Mr. Scoggin and the Firm represented her until the district court allowed them to withdraw on July 17, 2019, or at least until the motion to withdraw was filed on July 12, 2019. We have no qualms with this assertion. Ms. Groff next asks us to conclude the statute of limitations did not begin to run until Mr. Scoggin and the Firm withdrew as her divorce attorneys because of the continuous representation rule. With this we disagree.

The time begins to run

The last alleged “act, error or omission” presented to the district court on summary judgment occurred on May 24, 2019, when Mr. Scoggin and the Firm did not request a trial continuance on Ms. Groff’s behalf. Although Ms. Groff argues the statute of limitations should not begin to run until Mr. Scoggin moved to withdraw as counsel or was granted permission to withdraw, she did not allege the withdrawal constituted an “act, error or omission.” In fact, Ms. Groff confirms on appeal that the last alleged act of malpractice occurred on the last day of the bench trial, May 24, 2019, making this the last conceivable date the statute of limitations in § 1-3-107(a) could attach.  Because she did not file her complaint within two years of that date, her complaint was untimely.

No “continuous representation” rule

Both parties ask us to answer whether this Court recognizes the “continuous representation” doctrine in legal malpractice actions, which “is analogous to the continuous treatment doctrine we have applied in medical malpractice cases.” Ballinger, ¶ 27, 118 P.3d at 437. This question has been posed to us several times before. Id.; Connell v. Barrett, 949 P.2d 871, 874 (Wyo. 1997); Hiltz v. Robert W. Horn P.C., 910 P.2d 566, 571 (Wyo. 1996). We have consistently declined to adopt the continuous representation doctrine. Ballinger, ¶ 27, 118 P.3d at 437; Connell, 949 P.2d 871, 874; Hiltz, 910 P.2d 566, 571. We do so again here. 

(Mike Frisch)