In the Missouri Court of Appeals Eastern District DIVISION ONE
DANIEL MCCULLEN, ) No. ED110811 ) Appellant, ) Appeal from the Circuit Court ) of St. Louis County vs. ) 22SL-CC01555 ) MATTHEW P. O’GRADY, et al., ) Honorable David L. Vincent III ) Respondents. ) Filed: April 11, 2023
Daniel McCullen (“Plaintiff”) appeals the judgment granting motions to dismiss filed by
Matthew P. O’Grady, O’Grady Law Firm, LLC, OnderLaw, LLC, and James D. O’Leary
(“Defendants”). The trial court granted Defendants’ motions to dismiss Plaintiff’s petition
alleging claims for legal malpractice (Counts I and II) on the grounds the claims are barred by
the statute of limitations. We reverse the trial court’s judgment granting Defendants’ motions to
dismiss and remand for further proceedings consistent with this opinion.
I. BACKGROUND
Because this appeal involves a dismissal by the trial court on the grounds Plaintiff’s
claims are barred by the statute of limitations, we begin by setting out the general allegations of
Plaintiff’s petition.
In November 2013, Plaintiff hired Defendants for a personal injury claim. Plaintiff is a
layperson. Defendant Matthew P. O’Grady (“O’Grady”) and Defendant James D. O’Leary
(“O’Leary”) are licensed attorneys in the State of Missouri. Defendant O’Grady Law Firm, LLC (“O’Grady Law”) and Defendant OnderLaw, LLC (“OnderLaw”) are Missouri law firms.
During all times relevant to this case, Defendant O’Grady was an employee or agent of
Defendant O’Grady Law or Defendant OnderLaw, and Defendant O’Leary was an employee or
agent of Defendant OnderLaw or O’Leary, Shelton, Corrigan, Peterson, Dalton, and Quillian,
LLC (“OSCPDQ Law”). 1
Plaintiff’s petition alleges that in October 2006, Plaintiff was injured in a “low-speed
accident,” when Plaintiff was riding his Honda motorcycle and his “right foot was able to and
did become entangled in the rear wheel, causing devastating and permanent injury to his leg and
foot.” Subsequently, in 2011, an action was filed by attorneys not involved in this case on behalf
of Plaintiff and against authorized Honda dealer Shernaman Enterprises, Inc., Jo and Allen
Shernaman, 2 and American Honda Motor Company, Inc. (“Honda”) (“underlying 2011
action”). 3
Between November 2013 and July 2019, Defendants represented Plaintiff in complex
litigation with numerous procedural steps, events, and decisions relating to the underlying 2011
action. The parties highlight several, notable events.
On November 15, 2013, Honda was dismissed from the underlying 2011 action. The
dismissal occurred even though it would subsequently be revealed there was purportedly an
agreement which provided Honda would indemnify its authorized dealer Shernaman Enterprises
against loss and against liability for personal injury arising from a product defect. The petition
does not allege the reason for Honda’s dismissal from the underlying 2011 action. Subsequently,
1 OSCPDQ Law is not a defendant in Counts I and II of Plaintiff’s petition at issue in this appeal. 2 We will refer to Shernaman Enterprises, Inc. as “Shernaman Enterprises,” to Jo and Allen Shernaman as “the Shernamans,” and to Shernaman Enterprises and the Shernamans collectively as “the Shernaman defendants.” 3 Plaintiff’s petition does not raise any claims of legal malpractice against the attorneys who filed the underlying 2011 action on behalf of Plaintiff. Those attorneys ceased representation of Plaintiff at some point prior to Defendants’ representation of Plaintiff beginning in November 2013, and the only claims of legal malpractice in Plaintiff’s petition are against Defendants.
2 on January 22, 2014, the Shernaman defendants’ insurer, Federated Mutual Insurance Company
(“Federated”), filed a reservation of rights letter 4 in the underlying 2011 action. Defendants had
notice of this letter.
On February 1, 2014, pursuant to the advice of Defendants, Plaintiff entered into a
settlement agreement with the Shernaman defendants pursuant to section 537.065 RSMo 2016 5
(“2014 settlement agreement” or “settlement agreement”). The 2014 settlement agreement
provides, inter alia, that Plaintiff agrees to not hold the Shernaman defendants personally liable,
and, in exchange, the Shernaman defendants agree to not present a defense against Plaintiff’s
personal injury claim.
Plaintiff proceeded to trial with his personal injury claim in the underlying 2011 action,
and, per the 2014 settlement agreement, no defense was presented by the Shernaman defendants.
On or about April 24, 2014, a trial court entered a judgment in favor of Plaintiff and against the
Shernaman defendants in the amount of $11,031,096 (“the approximate $11 million judgment”).
On or about May 28, 2014, Defendants filed an equitable garnishment action on
Plaintiff’s behalf, to seek recovery of the approximate $11 million judgment against the
Shernaman defendants’ insurer, Federated (“2014 equitable garnishment action” or “equitable
4 “A reservation of rights letter is a unilateral declaration from an insurance company to its insured that the company accepts the defense [in an action] but reserves its right to later deny coverage on certain specified grounds.” Pink v. Knoche, 103 S.W.3d 221, 228 (Mo. App. W.D. 2003) (emphasis omitted); see also Kinnaman-Carson v. Westport Ins. Corp., 283 S.W. 3d 761, 765 (Mo. banc 2009) (“[g]enerally, an insurance company can effect a proper reservation of rights when the company provides notice to an insured that its defense of an action should not be construed as a waiver of any policy defense and the insured accepts the defense of the action without protest and with full knowledge of the position of the insurance company of its right to assert non-liability”) (citation and internal quotations omitted). 5 All statutory references to section 537.065 in this opinion are to RSMo 2016 (effective from August 28, 1959 to August 27, 2017). Under this version of section 537.065, “an injured party and an insured/tort-feasor [may] enter an agreement which eliminates the insured’s personal liability exposure;” “[the injured party and insured/tort-feasor] then continue to litigate the injured party’s claim in circumstances in which the insured may have little incentive to vigorously defend, and might even be contractually prohibited from doing so;” and “[if] the injured party obtains a substantial money judgment against the insured[,] the injured party then seeks to bind the insured’s liability insurer to the outcome of the litigation, even though the insurer did not participate in, and might even have been unaware of, that litigation.” Knight by & Through Knight v. Knight, 609 S.W.3d 813, 822 (Mo. App. W.D. 2020); see also section 537.065.
3 garnishment action”). Plaintiff subsequently had to take out a litigation loan in June 2014 “to
keep from filing for bankruptcy and so that he could proceed with future litigation.”
Between November 2015 and January 19, 2016, Defendants represented Plaintiff during
settlement negotiations with Federated. During the negotiations, Defendants told Plaintiff
Federated made a $480,000 offer, which Plaintiff wanted to accept, but Plaintiff ultimately did
not accept the offer pursuant to Defendants’ advice. Plaintiff also signed a blank sheet of paper
which was presented to him by Defendants during the settlement negotiations. Plaintiff’s
petition also alleges Federated made an offer to settle with Plaintiff for $1 million during the
negotiations, an offer which, (1) Defendants purportedly did not communicate to Plaintiff; (2)
Plaintiff did not learn about until after negotiations had ended; and (3) Plaintiff alleges he would
have accepted. No settlement agreement was ever reached between Plaintiff and Federated.
On January 20, 2016, Federated was granted summary judgment on Plaintiff’s 2014
equitable garnishment action, “on the grounds [Federated] had been prejudiced in the
[underlying] 2011 [a]ction by being unaware of the ongoing litigation and when [it] [was]
apprised of the matter[,] being unable to mount a defense pursuant to the [2014 settlement]
[a]greement” (“January 20, 2016 grant of summary judgment” or “grant of summary judgment”).
Defendants then advised Plaintiff that an appeal of the January 20, 2016 grant of summary
judgment lacked merit.
Defendants continued to represent Plaintiff up until July 2019. Between November 2016
and August 2017, Defendants allegedly “represented to Plaintiff that serious discussions were
being had with outside counsel regarding methods of recovery on the [approximate $11 million]
judgment.” Additionally, on August 17, 2017, Defendant O’Leary left Defendant OnderLaw and
started OSCPDQ Law, a Missouri law firm. O’Leary purportedly did not communicate this
information to Plaintiff and continued to represent Plaintiff.
4 On or about December 14, 2018, after Plaintiff made several attempts to speak with
Defendants, Defendant O’Leary and Plaintiff had “an intense meeting’ at the office of OSCPDQ
Law, during which “O’Leary expressed to Plaintiff of their perceived inability to collect on the
[approximate $11 million] judgment after years of dragging out litigation and false indications of
potential recovery avenues.”
It is also alleged that on or about January 16, 2019, (1) Defendant O’Leary contacted
Plaintiff and advised Plaintiff to allow Ryan Shernaman (the Shernamans’ son who is a licensed
attorney in Missouri) to represent Plaintiff in a collection action against Honda on behalf of the
Shernaman defendants; (2) “Defendants . . . only allowed Plaintiff [four] hours to contemplate
the possibility of another suit before stressing time was of the essence and a petition needed to be
filed nearly immediately”; (3) “Plaintiff [ ] agreed to pursue Honda with Ryan Shernaman
representing his interests against Honda on the condition that Defendants would still be zealously
representing his interests”; (4) Defendants agreed with the aforementioned condition; and (5) a
petition was filed by Ryan Shernaman on behalf of the Shernaman defendants and Plaintiff
against Honda (“the 2019 case against Honda”). Finally, on July 10, 2019, the 2019 case against
Honda was voluntarily dismissed, after Plaintiff was purportedly advised by Ryan Shernaman
that the case “was outside of his area of practice and the case should be dismissed.”
Plaintiff filed the petition at issue in the instant case on January 20, 2021, alleging two
counts for legal malpractice. Plaintiff’s petition alleges that, as a result of Defendants’ negligent
legal representation of Plaintiff, Plaintiff never recovered any part of the approximate $11
million judgment, and Plaintiff suffered financial distress due to the costs of continued litigation.
5 Count I of Plaintiff’s petition alleges Defendants negligently advised Plaintiff to enter
into the purportedly deficient 2014 settlement agreement with the Shernaman defendants. 6
Count II of Plaintiffs’ petition alleges Defendants negligently failed to investigate and identify
Honda’s purported duty to indemnify its authorized dealer Shernaman Enterprises. 7
Defendants filed motions to dismiss Plaintiff’s petition on the grounds Counts I and II are
barred by the five-year statute of limitations applying to legal malpractice claims. 8 Plaintiff then
filed suggestions in opposition to Defendants’ motions to dismiss, and Defendants filed replies in
support of their motions to dismiss.9
The trial court then entered a judgment granting Defendants’ motions to dismiss and
dismissing Counts I and II of Plaintiff’s petition with prejudice. The court’s judgment does not
state the reasons it granted Defendants’ motions to dismiss. This appeal followed.
II. DISCUSSION
Plaintiff raises one point on appeal alleging the trial court erred in granting Defendants’
motions to dismiss asserting Plaintiff’s petition is barred by the statute of limitations governing
legal malpractice claims. For the reasons discussed in detail below, we agree.
6 Count I specifically alleges, (1) the Shernaman defendants’ insurer, Federated, was not provided notice of the ongoing underlying 2011 action; (2) Federated was not given an opportunity to defend against liability prior to the execution of the settlement agreement; (3) the settlement agreement, in part, limits Plaintiff’s recovery of a favorable judgment to any insurance policies held by the Shernaman defendants; (4) the settlement agreement fails to expressly contemplate Honda’s purported obligation to indemnify its authorized dealer Shernaman Enterprises; (5) the settlement agreement contains an “unfair” provision regarding how Plaintiff and the Shernaman defendants would share any recovery of a favorable judgment; and (6) the circumstances indicated Federated, the ultimate party envisioned to be held liable, intended to refute liability and expressly wished to present a defense. 7 Count II specifically alleges, (1) an agreement provides Honda would indemnify its authorized dealer Shernaman Enterprises against loss and against liability for personal injury arising from a product defect; (2) Defendants were counsel of record before Honda was dismissed from the underlying 2011 action; (3) the terms of the 2014 settlement agreement did not expressly contemplate or reflect Plaintiff’s ability to pursue an indemnification claim against Honda; and (4) Defendants’ failure to consider pursuing a recovery against Honda severely limited Plaintiff’s ability to collect against Honda on Shernaman Enterprises’ behalf. 8 See Klemme v. Best, 941 S.W.2d 493, 497 (Mo. banc 1997); see also section 516.120(4) RSMo 2016 (effective from August 28, 1939 to the present). 9 To avoid unnecessary repetition, the parties’ specific arguments in their pleadings will be set out below in Section II.B.1. of this opinion.
6 A. The Statute of Limitations for Legal Malpractice Claims and the Standard of Review
“Actions for legal malpractice based on negligence are governed by the five-year statute
of limitations in [section] 516.120(4) [RSMo].” Klemme v. Best, 941 S.W.2d 493, 497 (Mo.
banc 1997); see also section 516.120(4) RSMo 2016. 10
The trial court’s grant of a motion to dismiss asserting a petition is barred by the statute
of limitations is a question of law subject to de novo review. Coin Acceptors, Inc. v. Haverstock,
Garrett & Roberts LLP, 405 S.W.3d 19, 27 (Mo. App. E.D. 2013); Murray v. Fleischaker, 949
S.W.2d 203, 206 (Mo. App. S.D. 1997). We liberally construe the petition, treating all of the
plaintiff’s factual allegations as true, and viewing the allegations favorably to the plaintiff.
Murray, 949 S.W.2d at 205.
When it is not clear from a petition that a cause of action is barred by the statute of
limitations, a motion to dismiss on that ground should not be granted. Mental Health Associates,
Inc. v. Carlson, 835 S.W.2d 551, 552, 553 (Mo. App. E.D. 1992). Where, as in this case, the
trial court does not state the basis for dismissal, we presume the court’s decision was based on
the grounds alleged in the defendant’s motion to dismiss, and we will affirm if the dismissal is
correct under any of the grounds stated in the motion. Walters Bender Strohbehn & Vaughan,
P.C. v. Mason, 316 S.W.3d 475, 478 (Mo. App. W.D. 2010).
B. The Trial Court’s Dismissal of Counts I and II Asserting Legal Malpractice Claims
In this case, Plaintiff argues the trial court erred in granting Defendants’ motions to
dismiss Plaintiff’s petition on the grounds Counts I and II are barred by the five-year statute of
limitations applying to legal malpractice claims. Count I of Plaintiff’s petition alleges
Defendants negligently advised Plaintiff to enter into the purportedly deficient 2014 settlement
10 This reference to RSMo 2016 and all further statutory references to RSMo 2016 are to versions of statutes effective from August 28, 1939 to the present.
7 agreement with the Shernaman defendants. Count II of Plaintiffs’ petition alleges Defendants
negligently failed to investigate and identify Honda’s purported duty to indemnify its authorized
dealer Shernaman Enterprises. While it is undisputed Defendants’ alleged negligence occurred
more than five years before Plaintiff’s petition was filed, Plaintiff asserts a reasonable layperson
would not have been put on notice of Defendants’ potential negligence until a later time which
falls within five years of the date Plaintiff’s petition was filed.
1. The Trial Court’s Judgment and the Parties’ Arguments in Their Pleadings
The trial court’s judgment in this case does not state the basis for its dismissal of Counts I
and II. Accordingly, our Court presumes the trial court’s decision was based on the grounds
alleged in Defendants’ motion to dismiss. Mason, 316 S.W.3d at 478.
Defendants’ motions to dismiss argue Plaintiff’s legal malpractice claims accrued at one
of various points prior to the January 20, 2016 grant of summary judgment in favor of Federated:
(1) in January 2014, when the Shernaman defendants’ insurer, Federated, filed a reservation of
rights letter in the underlying 2011 action; (2) in February 2014, when Plaintiff entered into the
settlement agreement with the Shernaman defendants; (3) in June 2014, when Plaintiff had to
take out a litigation loan to keep from filing for bankruptcy and so that he could proceed with
future litigation; or (4) sometime between November 2015 and January 19, 2016, when Plaintiff
was engaged in settlement negotiations with Federated, and specifically when, (a) Federated
made two settlement offers to Plaintiff that Plaintiff claims he would have accepted but for
Defendants’ acts or omissions; or (b) when Plaintiff signed a blank sheet of paper which was
presented to him by Defendants.
In contrast, Plaintiff’s suggestions in opposition contend Plaintiff’s petition was filed
within the five-year statute of limitations because his claims in Counts I and II did not accrue
until “at least January 20, 2016,” i.e., the date of the grant of summary judgment in favor of
8 Federated (the Shernaman defendants’ insurer) on Plaintiff’s equitable garnishment action.
When this ruling was entered, and despite Defendants’ assertions to the contrary, all potential
avenues of recovery of the approximate $11 million judgment had effectively closed in that
Plaintiff could not recover from Federated because of the grant of summary judgment in its
favor, Plaintiff could not recover from the Shernaman defendants personally pursuant to the
terms of the 2014 settlement agreement, and Plaintiff could not recover from Honda because it
was dismissed as a party in 2011.
2. Relevant Law and Analysis
The statute of limitations for a legal malpractice claim begins to run when the cause of
action accrues, meaning when the damage resulting from the alleged legal malpractice is
“sustained and is capable of ascertainment.” Duvall v. Yungwirth, 613 S.W.3d 71, 76-77 (Mo.
App. W.D. 2020) (emphasis omitted) (quoting section 516.100 RSMo); see also section 516.100
RSMo 2016. “The test for accrual of a cause of action . . . is objective.” Duvall, 613 S.W.3d at
77 (citing Powel v. Chaminade College Preparatory, Inc., 197 S.W.3d 576, 584 (Mo. banc
2006)).
Generally, a claim for legal malpractice accrues when a reasonable person would have
been put on notice that an injury and substantial damages resulting from alleged negligence may
have occurred and would have undertaken to ascertain the extent of the damages. Id.
Nevertheless, for purposes of determining when a legal malpractice claim accrues, a plaintiff has
no obligation to check the action or inaction of an attorney he has hired for expert or professional
services, “unless facts or circumstances which suggest an error are known by or are available to
the plaintiff.” M & D Enterprises, Inc. v. Wolff, 923 S.W.2d 389, 397 (Mo. App. S.D. 1996).
Additionally, there is a distinction between “lay[person]/expert cases” where plaintiffs are unable
9 to ascertain their injuries without the help of experts and more simple cases where plaintiffs can
ascertain their own injuries. Jordan v. Willens, 937 S.W.2d 291, 294 n.5 (Mo. App. W.D. 1996).
Accordingly, where, as in this case, a plaintiff is a layperson who hired defendants-
attorneys for expert and professional services in complex litigation, a plaintiff’s claim for legal
malpractice accrues when a reasonable layperson would have been put on notice that an injury
and substantial damages resulting from the defendants’ alleged negligence may have occurred
and would have undertaken to ascertain the extent of the damages. See id.; Duvall, 613 S.W.3d
at 77; Wolff, 923 S.W.2d at 397; see also Powel, 197 S.W.3d at 584. In other words, a plaintiff’s
claim for legal malpractice accrues when an event occurs which would put a reasonable
layperson on notice of the defendants’ potential negligence. See id.
As explained in detail in Section I. of this opinion, Plaintiff’s petition alleges Plaintiff, a
layperson, hired Defendants to represent him in complex litigation from November 2013 to July
2019. Contrary to Defendants’ assertions, we find that based on Plaintiff’s allegations in his
petition, a reasonable layperson such as Plaintiff would not have been put on notice of
Defendants’ potential negligence when Federated filed its reservation of rights letter, when
Plaintiff entered into the settlement agreement with the Shernaman defendants, when Plaintiff
had to take out a litigation loan, or at any point during settlement negotiations between Plaintiff
and Federated. During these times, a reasonable layperson such as Plaintiff had no obligation to
check the actions or inactions of Defendants, because there are no facts or circumstances alleged
in Plaintiff’s petition which suggest an error would have been known or available to a reasonable
layperson in Plaintiff’s position who was relying on Defendants’ expert and professional advice
to recover an approximate $11 million judgment in complex litigation. See id.; see also Martin
v. Crowley, Wade, and Milstead, Inc., 702 S.W.2d 57, 58-59 (Mo. banc 1985) (finding a
10 plaintiff-layperson “cannot be expected to double check every act (or failure to act) of his
attorney”) (citation omitted).
In support of Defendants’ arguments that Plaintiff’s legal malpractice claims accrued at
some point prior to January 20, 2016, Defendants primarily rely on three cases: Duvall, 613
S.W.3d 71, Brower v. Davidson, Deckert, Schutter & Glassman, P.C., 686 S.W.2d 1 (Mo. App.
W.D. 1984), and Zero Mfg. Co. v. Husch, 743 S.W.2d 439 (Mo. App. E.D. 1987).
In Duvall, the Western District held, at the summary judgment stage, that a legal
malpractice claim alleging a defendant-attorney negligently provided estate-planning services
accrued when the plaintiffs admitted to “blam[ing]” defendant-attorney for collateral litigation
being filed and plaintiffs hired new counsel to represent him in such litigation. 613 S.W.3d at
72-75, 80 n.4, 82. In Brower, the Western District held, at the summary judgment stage, that a
legal malpractice claim alleging defendants-attorneys negligently failed to follow a specific
section of the Internal Revenue Code accrued when an adverse administrative ruling from the
Internal Revenue Service informed plaintiffs a tax deficiency occurred because defendants failed
to follow the specific section of the Internal Revenue Code cited by plaintiffs in their legal
malpractice claim. 686 S.W.2d at 1-4. In Zero Mfg., our Court held, at the motion to dismiss
stage, that a legal malpractice claim alleging defendants-attorneys caused damages arising from
an untimely contract termination accrued when the defendants advised plaintiff it could terminate
a contract upon giving thirty days’ notice, and plaintiff had reason to know the advice may have
been negligently given because opposing counsel told plaintiff a Wisconsin statute required
ninety-days’ notice. 743 S.W.2d at 440-42. We find Defendant’s reliance on Duvall, Brower,
and Zero Mfg. is misplaced because each of the cases are distinguishable.
In contrast to the summary judgment proceedings at issue in Duvall and Brower, this case
involves the early motion to dismiss stage. Unlike the developed facts in Duvall, there are no
11 allegations in Plaintiff’s petition that Plaintiff ever blamed or assessed fault to Defendants at any
time during Defendants’ representation of Plaintiff. Additionally, in contrast to the developed
facts in Brower, there are no allegations in Plaintiff’s petition that there was ever any adverse
administrative ruling in this case, much less a ruling informing Plaintiff of Defendants’ potential
negligence. Finally, unlike the facts alleged in the petition in Zero Mfg., there are no allegations
in Plaintiff’s petition in this case supporting a finding that a reasonable layperson in Plaintiff’s
position had any reason to know of any potential negligence on the part of Defendants at the
times in the complex litigation suggested by Defendants (when Federated filed its reservation of
rights letter, when Plaintiff entered into the settlement agreement pursuant to section 537.065
with the Shernaman defendants, when Plaintiff had to take out a litigation loan, or during
Plaintiff’s settlement negotiations with Federated).
Plaintiff’s petition does not allege Plaintiff was even aware that Federated filed its
reservation of rights letter, and, even if Plaintiff was somehow aware of the filing, there are no
allegations in Plaintiff’s petition supporting a finding that a reasonable layperson such as
Plaintiff would understand the meaning of such a letter. Additionally, Plaintiff entering into a
settlement agreement with the Shernaman defendants was the direct result of the reservation of
rights letter being filed, entering into the settlement agreement was arguably good trial strategy
on the part of Defendants, and a reasonable layperson such as Plaintiff would have no reason to
be concerned with Defendants’ representation of him at this stage of the proceedings.
Furthermore, there is no suggestion in Plaintiff’s petition that when Plaintiff had to take a
litigation loan out to pay for ongoing litigation, (1) the attorney-client agreement between
Defendants and Plaintiff had changed; (2) Plaintiff was advancing costs of litigation for the first
time; or (3) that a reasonable layperson in the position of Plaintiff would have any other reason
to be concerned with having to pay for such costs. Finally, during Defendants’ representation of
12 Plaintiff in settlement negotiations with Federated, Defendants ultimately advised Plaintiff not to
settle with Federated, which would demonstrate to a reasonable layperson such as Plaintiff that
Defendants were confident in a strategy of pursuing a greater recovery than any amount of
money Federated had offered to Plaintiff during the settlement negotiations.
Moreover, based on the allegations in Plaintiff’s petition, we hold the earliest point in
time Plaintiff’s legal malpractice claims accrued was on January 20, 2016, when Federated was
granted summary judgment on Plaintiff’s 2014 equitable garnishment action “on the grounds
[Federated] had been prejudiced in the [underlying] 2011 [a]ction by being unaware of the
ongoing litigation and when [it] [was] apprised of the matter[,] being unable to mount a defense
pursuant to the [2014 settlement] [a]greement.” See, e.g., Coin Acceptors, 405 S.W.3d at 27-28
and Murray, 949 S.W.2d at 205-06 (holding a plaintiff’s legal malpractice claim accrued when
there was an adverse court ruling or judgment which put a reasonable person on notice of the
defendant-attorney’s potential negligence). When this January 20, 2016 adverse ruling was
entered against Plaintiff, all potential avenues of recovery of the approximate $11 million
judgment had effectively closed in that Plaintiff could not recover from Federated because of the
grant of summary judgment in its favor, Plaintiff could not recover from the Shernaman
defendants personally pursuant to the terms of the 2014 settlement agreement, and Plaintiff could
not recover from Honda because it was dismissed as a party in 2011.
Further, the grant of summary judgment triggered the occurrence of alleged events in
Defendants’ representation of Plaintiff which a reasonable layperson in the position of Plaintiff
would find concerning. These alleged events include: Defendants advising Plaintiff an appeal of
the grant of summary judgment lacked merit; Plaintiff making several unsuccessful attempts to
speak with Defendants; a meeting between Plaintiff and Defendant O’Leary at a new law office
(OSCPDQ Law) where O’Leary essentially told Plaintiff he no longer had a path to recover the
13 approximate $11 million judgment; Defendants advising Plaintiff to hire a new lawyer (the son
of underlying-defendants the Shernamans) and pressuring Plaintiff to make the representation
decision within a four-hour window; and Plaintiff ultimately being told by the Shernamans’ son
that the case “was outside of his area of practice and the case should be dismissed.”
Based on the foregoing, we hold as a matter of law that the trial court’s January 20, 2016
grant of summary judgment on Plaintiff’s 2014 equitable garnishment action was the earliest
point in time a reasonable layperson involved in complex litigation, (1) would have been put on
notice that an injury and substantial damages may have occurred (the inability to collect the
approximate $11 million judgment in the underlying 2011 action); (2) would have undertaken to
ascertain the extent of the damages; and (3) would have been put on notice that such an injury
and substantial damages resulted from Defendants’ alleged negligence (Defendants advising
Plaintiff to enter into the purportedly deficient 2014 settlement agreement as alleged in Count I
and Defendants failing to investigate and identify Honda’s alleged duty to indemnify as alleged
in Count II). See Duvall, 613 S.W.3d at 77; Jordan, 937 S.W.2d at 294 n.5; Wolff, 923 S.W.2d
at 397; see also Powel, 197 S.W.3d at 584. Therefore, Plaintiff’s petition filed on January 20,
2021 was filed within the five-year statute of limitations, and the trial court erred in dismissing
Counts I and II. Plaintiff’s sole point on appeal is granted.
III. CONCLUSION
We reverse the trial court’s judgment dismissing Counts I and II of Plaintiff’s petition
with prejudice and remand for further proceedings consistent with this opinion.
ROBERT M. CLAYTON III, Judge
Angela T. Quigless, P.J., and Sherri B. Sullivan, J., concur.