Background
After criminal charges against Louis Briggs were dismissed, attorney Shaun Wimberly filed a federal action on Briggs’s behalf asserting federal civil-rights claims and state-law claims. The federal district court dismissed most claims and declined jurisdiction over the remaining state-law claims. Briggs blamed Wimberly’s alleged litigation failures and appealed the federal ruling to the Sixth Circuit.
While that appeal remained pending, Briggs filed a legal-malpractice action against Wimberly in Jefferson Circuit Court. The Sixth Circuit affirmed on April 1, 2022, and the federal appeal became final no later than April 25, 2022. The circuit court ultimately dismissed Briggs’s first malpractice action with prejudice. Briggs then filed a substantially duplicative action in February 2025, which another division of the circuit court also dismissed with prejudice.
The Court’s Holding
The Kentucky Court of Appeals affirmed both dismissals. Under Kentucky law, a litigation-malpractice claim does not ripen until the underlying litigation, including any appeal, is final. Briggs’s first action therefore was premature when filed because his federal appeal remained pending and his malpractice claim did not yet exist. The premature filing did not toll the one-year limitations period in KRS 413.245, and an amended complaint could not cure the original ripeness defect.
The court also held that Kentucky’s 90-day savings statute, KRS 413.270(1), did not preserve Briggs’s second action. That statute requires the earlier action to have been “commenced in due time,” but Briggs filed his first action before the malpractice claim accrued. Although jurisdictional dismissals ordinarily are without prejudice, both claims were indisputably time-barred by the time the circuit courts ruled. The Court of Appeals concluded that dismissal with prejudice was appropriate and declined to require a futile procedural sequence that would produce the same result.
Key Takeaways
- A litigation-malpractice claim based on an attorney’s handling of a case does not accrue while an appeal in the underlying litigation remains pending.
- Filing a “protective” malpractice action before the claim is ripe does not toll Kentucky’s one-year limitations period and cannot be cured by amendment after accrual.
- KRS 413.270(1) does not save a later action when the first action was filed before the claim existed and therefore was not “commenced in due time.”
Why It Matters
The decision underscores the timing risk in Kentucky litigation-malpractice cases: counsel must wait until the underlying proceeding is final but then file within the applicable one-year period. A premature complaint may provide no protection against the limitations deadline.
The opinion also recognizes that, although an unripe claim generally should be dismissed without prejudice, a court may dismiss with prejudice when intervening events have made the claim conclusively time-barred and a without-prejudice dismissal would serve no practical purpose.