A Suit Filed Before the Claim Exists is Fatal
Post 4870
Posted on October 20, 2026 by Barry Zalma
In Louis Briggs v. Shaun Wimberly; Somerset Services, Inc.; And Wimberly & Associates, PLLC, and Louis Briggs v. Shaun Wimberly And Wimberly & Associates, PLLC Nos. 2024-CA-1471-MR, 2025-CA-1366-MR, Court of Appeals of Kentucky (October 9, 2026) Louis Briggs was arrested in 2014 after an incident with police and charged with several offenses, including third-degree assault.
Probable cause was found and an indictment was returned, but the charges were eventually dismissed. His attorney, Shaun Wimberly, then filed a federal civil rights suit for Briggs in a United States district court, which also asserted state-law claims. The district court dismissed most of the claims and declined to exercise jurisdiction over the remaining state-law claims. Briggs blamed Wimberly for the result, fired him, and appealed to the Sixth Circuit.
While the federal appeal was pending, Briggs filed a legal malpractice action against Wimberly in the Jefferson Circuit Court. The Sixth Circuit affirmed on April 1, 2022, and that decision became final no later than April 25, 2022.
The state case sat largely dormant. In 2023, the circuit court issued a notice to dismiss for lack of prosecution, and some discovery followed. In February 2024, Briggs filed an amended complaint that restated his claims against Wimberly and added insurance-related claims.
Wimberly moved to dismiss arguing that the claim was not ripe when the suit was filed and that no amendment could relate back to the original filing date because the court had no jurisdiction at that time.
Briggs did not contest the relation-back point. Because the one-year limitations period measured from April 2022 had expired, the circuit court dismissed the case with prejudice in November 2024. In February 2025, Briggs filed a second, identical action, which a different division also dismissed with prejudice on Wimberly’s motion. Briggs appealed both dismissals, and the Court of Appeals consolidated the appeals.
LAW
Standard of review:
How a statute of limitations applies, and whether a claim is ripe, are questions of law reviewed de novo by the appellate court.
Limitations period:
A legal malpractice claim must be brought within one year. KRS 413.245.
Accrual of litigation negligence:
Whether an attorney’s negligence in a litigated matter caused injury must await the final outcome of the underlying case. If the underlying case is appealed, the claim does not ripen until the appeal is final.
Justiciability:
Section 112(5) of the Kentucky Constitution requires a justiciable claim, and courts do not issue advisory opinions. A suit filed before the claim exists has a “fatal defect” that “cannot be aided by amendment, or waived by delay in calling attention to it,” and it ordinarily should be dismissed without prejudice.
Types of jurisdiction:
Subject-matter jurisdiction is distinct from particular-case jurisdiction. A court always has jurisdiction to determine whether it has jurisdiction.
No tolling:
A case pending in a court without jurisdiction does not toll the limitations period.
Savings Statute:
KRS 413.270(1) allows a case to be refiled within 90 days only if the prior action was “commenced in due time” and was dismissed for lack of “jurisdiction.” The term “jurisdiction” includes both place and power.
Dismissal with Prejudice:
A dismissal for lack of jurisdiction should “ordinarily” be without prejudice. However, extraordinary circumstances may justify dismissal with prejudice. A claim may also be dismissed with prejudice when a time bar is apparent on the face of the record.
DISCUSSION AND ANALYSIS
The First Suit Was Premature.
Briggs’s malpractice claim was based on litigation negligence, so it did not exist until the federal appeal became final on April 25, 2022. When he filed his first suit, the Sixth Circuit appeal was still pending. Because the claim was not ripe, the circuit court lacked jurisdiction over that particular case.
The court did have subject-matter jurisdiction over legal malpractice claims generally. The Court of Appeals noted that this distinction did not change the result, because either type of defect ordinarily requires dismissal without prejudice.
The 2024 amended complaint could not cure the defect, and the time the premature suit was pending did not toll the one-year period. That period expired in April 2023.
The Savings Statute Did Not Rescue The Second Suit.
Briggs argued that the first case should have been dismissed without prejudice, so that KRS 413.270(1) would save his 2025 refiling. The Court rejected this argument. The savings statute requires that the prior action have been “commenced in due time,” but Briggs’s first suit was filed before the claim existed, not in due time. Even under Briggs’s own theory, the savings statute could not excuse the untimeliness of the second suit, which was properly dismissed with prejudice as time barred.
Dismissal Of The First Suit With Prejudice Was Proper.
Kentucky law says a jurisdictional dismissal should only “ordinarily” be without prejudice, so it does not forbid a dismissal with prejudice. The Court agreed with the Second Circuit’s reasoning in Vandor: when a case that was unripe at filing has become time barred by the time dismissal is ordered, common sense supports dismissing it with prejudice. A court always has authority to decide its own jurisdiction. Reversing the first dismissal only to have it entered without prejudice would be a “useless display of procedure,” because the second case’s dismissal with prejudice would produce the same result.
A Warning About “Protective” Lawsuits.
The Court cautioned against filing “protective” malpractice suits too early. Attorneys must know when a claim becomes ripe and file at the right time. Judicial economy does not favor premature suits that sit on court dockets before they can be adjudicated.
CONCLUSION
The Court of Appeals affirmed the Jefferson Circuit Court in both consolidated appeals.
The first suit was premature and therefore could not toll the limitations period. The second suit came too late, and the savings statute could not save it because the first suit was never “commenced in due time.”
The decision is a lesson about timing: a malpractice claim based on litigation negligence must be filed after the underlying case, including any appeal, becomes final, and within one year of that date—not before.
ZALMA OPINION
Unhappy with the work of his lawyer who lost a lawsuit the Plaintiff sued the lawyer for malpractice before the cause of action became ripe. While the federal appeal was pending, Briggs filed a legal malpractice action against Wimberly in the Jefferson Circuit Court. The Sixth Circuit affirmed on April 1, 2022, and that decision became final no later than April 25, 2022. Whether an attorney’s negligence in a litigated matter caused injury must await the final outcome of the underlying case. If the underlying case is appealed, the claim does not ripen until the appeal is final so he sued before the appeal was final.
(c) 2026 Barry Zalma & ClaimSchool, Inc.
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Insurance Expert May Not Testify to Speculative and Contains Unsupported Conclusions.
Posted on September 18, 2026 by Barry Zalma
See the full video at and at https://rumble.com/v7fmifw-expert-may-only-testify-to-what-experience-supports.html
In Michele A. Over, and The Estate Of Paul R. Over v. State Farm Mutual Automobile Insurance Company, and State Farm Fire And Casualty Company, Civil Action No. 23-cv-02243-PAB-STV, United States District Court, D. Colorado (September 14, 2026) Michele and Paul Over sued State Farm Fire and State Farm Auto over hail-damage and stolen-vehicle claims.
The operative dispute concerned State Farm Auto’s motion to exclude or limit opinions from plaintiffs’ insurance-industry expert, Aaron Castillo. Castillo.
Law
The proponent of expert testimony must establish by a preponderance of the evidence that an expert is qualified and that the opinions are helpful, sufficiently grounded, and reliably derived and applied. Experience-based opinions must explain how the...
150 Months in Prison for Tax Fraud
Post 4846
Posted on September 17, 2026 by Barry Zalma
See the full video at https://lnkd.in/g8rh3JBX and https://lnkd.in/gmkdy-9C, In United States Of America v. Thomas Addaquay, Nos. 25-10609, 25-10611, United States Court of Appeals, Eleventh Circuit (September 9, 2026) the Eleventh Circuit affirmed all challenged convictions, the 150-month aggregate sentence, and the challenged $4,123,474.55 restitution award.
FACTS
In United States Of America v. Thomas Addaquay, United States Of America v. Thomas Addaquay, Nos. 25-10609, 25-10611, United States Court of Appeals, Eleventh Circuit (September 9, 2026) the Eleventh Circuit affirmed all challenged convictions, the 150-month aggregate sentence, and the challenged $4,123,474.55 restitution award.
FACTS
Thomas Addaquay controlled United Consolidated Accounting and Business Services (UC), nominally a check-cashing business.
The government proved a three-stage tax-refund scheme that converted the resulting refund checks into usable funds through ...
Major Fraud Perpetrator Asserts Fifth Amendment Privilege to Avoid Prosecution
Post 5489
Posted on September 14, 2026 by Barry Zalma
Fraudster Refuses to Answer Questions About His Alleged Fraud
See the full video at https://lnkd.in/gvicAMDr and at https://lnkd.in/gvicAMDr
In Great American Insurance Co. v. Gemstone Property Management, LLC, et al., No. 23-cv-9100 (LJL), United States District Court, S.D. New York (September 8, 2026) Great American Insurance Company alleged that it was defrauded through a scheme in which Subin Associates, LLP recruited individuals to stage construction-site injuries, arranged unnecessary medical treatment and litigation funding, and pursued fraudulent personal-injury claims.
Luis Manuel Garcia Salcedo, resulted in a $6 million settlement. Non-party Jose Hernandez allegedly worked as an assistant manager at Subin, operated Hernandez Associates, and owned litigation-funding companies that shared office space with Subin and provided services to its clients.
After Great American ...
Is Exhaustion Required to Seek Declaratory Relief From an Excess Insurer?
Post 4578
Posted on November 9, 2026 by Barry Zalma
In Fox Paine & Company, LLC, et al. v. Twin City Fire Insurance Company et al., S287404, 593 P.3d 832, 593 P.3d 838, 346 Cal.Rptr.3d 541, Supreme Court of California, (July 27, 2026) the Supreme Court noted that Insurance is sometimes procured in a series of layers, with an insured acquiring a primary insurance policy that provides an initial layer of coverage for loss or liability and an excess insurance policy or policies that provide additional coverage in the event the underlying coverage is exhausted. Usually, the first layer of coverage must be exhausted before the excess layers are available to the insured.
Exhaustion
Fox and Paine’s investment-firm dispute generated extensive litigation and competing insurance claims. Their insurance tower consisted of a $10 million primary policy and four $10 million excess layers.
The Fox Parties alleged that insurers paid their rivals, withheld information,...
Payment of Fines & Completion of Probation Reinstates Right to Vote
Post 4576
Posted on November 5, 2026 by Barry Zalma
To Restore Voting Rights The Felon Must Pay Fines of $546.00
In Florida Supreme Court Mediator Ethics Advisory Committee, ETH F-26-377, No. F-26-377 (October 29, 2026) citizen unnamed and to Ron Desantis Governor, Cord Byrd the Secretary of State Florida Division of Elections provided an advisory opinion to a convicted felon about his right to vote:
To: [redacted] We received your request for an advisory opinion. You indicate that you have one or more felony convictions and request whether you are eligible to vote, including whether you have any outstanding legal financial obligations under section 98.0751, Florida Statutes, and, if so, a statement of the amount that must be paid to make you eligible to vote, and an explanation of how the amount was calculated.
The Division hereby responds to your request pursuant to its legal authority under section 106.23(2), Florida Statutes, and Florida ...
Administrative Review Permits the Agency to Apply its Expertise
Post 4574
In Erwin Jordan Castro Valdez v. Warden, Otay Mesa Detention Center, No. 26-cv-06147-BAS-JLB, United States District Court, S.D. California (October 30, 2026) Castro Valdez, a Cuban national paroled into the United States, was arrested on June 23, 2026, for alleged insurance fraud, grand theft, and making a false report to law enforcement. In his first habeas action, the district court ordered a bond hearing within fourteen days to determine whether the changed circumstances justified revoking his parole.
An Immigration Judge subsequently denied bond because of his pending state criminal case. Castro Valdez filed a second petition under 28 U.S.C. § 2241, challenging that determination and requesting immediate release without first appealing to the Board of Immigration Appeals (BIA).
LAW
According to the supplied text, § 2241 does not expressly require administrative exhaustion, but courts impose exhaustion as a prudential requirement. ...
