U.S. Tenth Circuit Court of Appeals Says Legal Malpractice Action Barred by Statute of Limitations


The U.S. District Court of Appeals for the 10th Circuit has affirmed the judgment of a Kansas District Court finding that a legal malpractice case was barred by the statute of limitations. In Elder v. Herlocker, an attorney had represented a father, and allegedly his two sons, with respect to the transfer of title to real property. When the father had a change of heart, he instructed the attorney to forward letters to the sons requesting re-transfer of the property.

The attorney sent letters to the sons requested that each sign a deed, which gave the property back to the father. However, the letters failed to mention that the re-transfer might result in the sons irrevocably losing their interest in the popery. Both sons signed and returned the deeds.

When the father died in 2004, the sons first learned that the property had been devised to someone else. During subsequent probate proceedings resulting from a challenge to the will by one of the sons, the attorney admitted that he had entered into a limited attorney-client relationship with the sons, but believed that he had no duty to inform them that signing the property back to the father could result in a complete loss of their property interests.

One son hired a new attorney to investigate a legal malpractice claim, who then forwarded a letter to the former attorney, advising him of the potential claim and the son’s reliance on his advice. However, no action was filed until 2008, after the probate court rejected the son’s will challenge.

Kansas has a two year statute of limitations on legal malpractice claims. The statute of limitations is normally tolled until the conclusion of any underlying litigation. However, there is no tolling if it is clear that there was an injury to the client and it is “reasonably ascertainable” that the injury is due to the attorney’s negligence.

The Appeals Court found that the son had been injured in 2005 when he knew he had irrevocably lost the property. It was also reasonably ascertainable in 2005 that the attorney had caused injury based on his probate testimony. The Court also opined that the outcome of the probate case was not determinative of the attorney’s alleged negligence. Thus, there was no tolling of the statute of limitations, and the deadling for filing was 2007. The case was untimely.

Decision: Elder v. Herlocker


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