The question whether a CR 60.02 motion tolls the one-year professional malpractice statute of limitations was raised in Faris v. Stone, Ky., 103 S.W. 3d 1 (2003). The case concerns divorce litigation in which two years after divorce the wife concluded that her husband had committed fraud by undervaluing business assets. This resulted in her receiving $1,500 instead of $162,100 that a jury later decided was the appropriate amount.

The record showed that the wife discovered the malpractice on August 28, 1995 when she was advised by successor counsel that her prior lawyer had committed malpractice by failing to obtain a proper evaluation of the husband’s business. Less than one year later on June 14, 1996 the wife filed a CR 60.02 motion seeking relief on the basis of her ex-husband’s alleged fraud. Approximately seven months later the CR 60.02 motion was denied. On November 7, 1997, over two years and two months after discovering the negligence, the wife made a claim of malpractice against her former lawyer. The lawyer asserted a statute of limitations defense on the basis that it was uncontested that the malpractice had been discovered by the wife more than one year before making her malpractice claim.

A unanimous Supreme Court held:

"We begin with the observation that CR 60.02 is not an appellate vehicle. It is not a part of the normal progression of litigation, but is an extraordinary procedure whereby a collateral attack is made upon a judgment upon specific grounds set forth in the rule. As such, a CR 60.02 claim is not of the same character as an appeal of right or a motion for discretionary review. It is separate and distinct from the main case, and a party may not use it as a means to extend a statutory period. If it were otherwise, statutes of limitation would pass into nonexistence because CR 60.02 (d), (e), and (f) are without any outer limits with respect to time. As such, a party could always bring a CR 60.02 motion and thereby revitalize a time-barred claim.

Accordingly, we decline to adopt Ms. Faris’ argument that the date of her injury did not become fixed and nonspeculative until the denial of the CR 60.02 motion. Pursuant to KRS 413.245, the latter of the date of occurrence or the date of discovery of the negligence commences the one-year statute of limitations. The date of occurrence was the time when the underlying divorce decree became final. As Ms. Faris was not aware of the alleged malpractice at this time, the date of discovery governs commencement of the limitation period. Thus, the one-year period began when she learned that her case had been negligently practiced." (footnotes omitted)

The Faris decision is a mini-clinic on how KRS 413.245 applies to legal malpractice claims. The Court succinctly synthesizes the case law covering the key concepts of occurrence, discovery, and continuous representation dicta. It is a professional reading must. For more on this subject read The Kentucky Malpractice Statute of Limitations – The Kentucky Supreme Court Clears the Air available in the Bench & Bar section of our website.