K.J.B., Inc. v. Drakulich

Decision Date06 June 1991
Docket NumberNo. 21544,21544
Citation811 P.2d 1305,107 Nev. 367
PartiesK.J.B., INC., a Nevada corporation, Appellant, v. Paul DRAKULICH and Digesti and Peck, Respondents.
CourtNevada Supreme Court
OPINION

PER CURIAM:

THE FACTS

In October 1978, appellant, K.J.B., Inc. (K.J.B.), acquired a leasehold interest in a building located on West Fourth Street in Reno, Nevada. K.J.B.'s lease agreement provided for annual rent increases, and the allowable rent under the lease had grown to $1,150.00 per month when Emmett Kelly became K.J.B.'s new landlord on July 1, 1985. However, K.J.B. did not pay increased rents allowed under the lease agreement pursuant to Kelly's request. Further, K.J.B. was late in some rent payments and mistakenly paid the rent to Kelly's predecessor in interest rather than to Kelly. Accordingly, Kelly commenced an unlawful detainer action in the justice's court, and a hearing was scheduled for October 8, 1985.

Prior to this hearing, the unlawful detainer action was abandoned pursuant to negotiations between the parties; thereafter, K.J.B. retained possession of the leasehold and made rent payments of $1,500.00 per month to Kelly until November, 1986, when K.J.B. reasserted its rights and obligations under the lease agreement and commenced rental payments of $1,150.00 per month.

After receiving the lower rent payments, Kelly served a thirty-day notice to quit on K.J.B. In December 1986, Kelly commenced an action in the district court asserting unlawful detainer and professing damages based upon allegations of waste and failure to repair. 1 Prior to the conclusion of this litigation, K.J.B. and its counsel, Douglas Norberg, filed a cause of action in the district court, asserting that the respondents, Paul Drakulich and the law firm of Digesti and Peck, had committed attorney malpractice in the underlying unlawful detainer action.

Paul Drakulich and the law firm of Digesti and Peck filed a motion to dismiss the attorney malpractice cause of action, arguing it was premature until the conclusion of the unlawful detainer lawsuit. The district court granted the motion to dismiss and awarded respondents $1,500.00 in attorney's fees for successfully defending the motion. These attorney's fees were assessed against appellant's counsel, Douglas Norberg, because the district court felt Norberg persisted in asserting arguments in opposition to the motion to dismiss that Norberg knew, or should have known, were meritless. This appeal followed.

PROFESSIONAL NEGLIGENCE CAUSE OF ACTION

"Where there has been no final adjudication of the client's case in which the malpractice allegedly occurred, the element of injury or damage remains speculative and remote, thereby making premature the cause of action for professional negligence." Semenza v. Nevada Med. Liability Ins. Co., 104 Nev. 666, 668, 765 P.2d 184, 186 (1988) (quoting Amfac Distribution Corp. v. Miller, 138 Ariz. 155, 673 P.2d 795, 796 (Ariz.App.1983)). Nonetheless, K.J.B. and Douglas Norberg argue they had no alternative but to file their cause of action for attorney malpractice since the statute of limitations could be construed to run against the cause of action prior to the conclusion of the underlying unlawful detainer action in which the malpractice occurred. Semenza did not specifically determine whether the statute of limitations would be tolled against a cause of action for attorney malpractice pending the outcome of the underlying lawsuit in which the malpractice allegedly occurred. Therefore, we will resolve this issue here.

Pursuant to NRS 11.207(1), the statute of limitations will not commence to run against an attorney malpractice cause of action until the claimant sustains damages. 2 In Semenza, we held that damages for attorney malpractice are premature and speculative until the conclusion of the underlying lawsuit in which the professional negligence allegedly occurred. Semenza, 104 Nev. at 668, 765 P.2d at 186. Synthesizing these rules, we now hold that the statute of limitations in NRS 11.207(1) does not commence to run against a cause of action...

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25 cases
  • Rippo v. State
    • United States
    • Nevada Supreme Court
    • February 25, 2016
    ...allegedly occurred. Paz v. State, 123 Idaho 758, 852 P.2d 1355, 1358 (1993)(Bistline, J., dissenting); cf. K.J.B., Inc. v. Drakulich, 107 Nev. 367, 369–70, 811 P.2d 1305, 1306 (1991)(explaining that statute of limitations for attorney malpractice action does not begin to run until claimant ......
  • Rippo v. State
    • United States
    • Nevada Supreme Court
    • August 2, 2018
    ...occurred. Paz v. State , 123 Idaho 758, 852 P.2d 1355, 1358 (1993) (Bistline, J., dissenting); cf. K.J.B., Inc. v. Drakulich, 107 Nev. 367, 369-70, 811 P.2d 1305, 1306 (1991) (explaining that statute of limitations for attorney malpractice action does not begin to run until claimant sustain......
  • Dunn v. Christensen
    • United States
    • U.S. District Court — District of Nevada
    • January 29, 2018
    ...remains speculative and remote, thereby making premature the cause of action for professional negligence." K.J.B., Inc. v. Drakulich, 107 Nev. 367, 369, 811 P.2d 1305, 1306 (1991) (citation omitted). Damages accrue upon the resolution of the underlying legal action. Hewitt v. Allen, 118 Nev......
  • Brunacini v. Kavanagh
    • United States
    • Court of Appeals of New Mexico
    • December 16, 1993
    ...legal malpractice accrues when the act of malpractice occurs and actual damage has resulted). See, e.g., K.J.B., Inc. v. Drakulich, 107 Nev. 367, 811 P.2d 1305, 1306 (1991) (per curiam); Hennekens v. Hoerl, 160 Wis.2d 144, 465 N.W.2d 812, 815-16 New Mexico has adopted the "damage rule" as t......
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