Actual damages are an essential element of a cause of action for legal malpractice because absent damages no cause of action has accrued. Thus, a plaintiff is injured for purposes of legal malpractice, and the statute of limitations period begins to run, when a plaintiff has suffered a loss for which it may seek damages. Here, defendants argued, and the trial court agreed, that plaintiff knew or should have known that it suffered actual damages for purposes of the statute of limitations at the time that the DWP order was entered. A DWP order cannot be considered a final order during the time period in which the option to refile is available. Based upon the foregoing, the trial court erred as a matter of law in holding that plaintiff knew or should have known that it suffered actual damages at the time that the DWP order was entered.
Damages are speculative when uncertainty exists as to the fact of damages.
Because the DWP order was not a final order until the one-year refiling period had expired, plaintiff's damages were uncertain, and therefore were speculative, at the time that the DWP order was entered. Further, because plaintiff's damages were uncertain and speculative when the DWP order was entered, plaintiff's cause of action could not have accrued upon the entry of the order. Plaintiff's claim for legal malpractice did not accrue until it suffered a loss for which it could seek damages. It was only when the DWP judgment became final, upon the expiration of the one-year period for refiling, that plaintiff suffered a loss for which it could seek damages. The legal malpractice statute of limitations expired on July 13, 1997.