STANDFORD BIRNHOLZ, AND INTERVENORS, STEPHENS, MAGILL & THORNTON, P. A., AND TIMOTHY CARL BLAKE, ESQ., APPELLANTS,
v.
SIDNEY STEISEL AND AJAX PACKAGING AND PLASTICS, INC., A FLORIDA CORPORATION, AND SIDNEY STEISEL, AS EXECUTOR OF THE ESTATE OF WILLIAM B. STEISEL, APPELLEES
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This case concerns the statute of limitations for attorney's fees. The court held that the statute of limitations for attorney fees begins to run when the services are completed, not when payment is demanded. The court also addressed the retroactivity of a statutory change in the limitations period.
1. The statute of limitations for attorney's fees begins to run upon completion of the services, not upon demand for payment. 2. An enlarged statute of limitations period applies retroactively to claims that were not yet barred by the prior, shorter limitations period.
[1] The statute of limitations for attorney's fees accrues when the services are completed, not when a demand for payment is made.
[2] A statute of limitations that is enlarged before the earlier statute has expired will apply to claims not yet barred by the original statute.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“As in the case of the general Florida rule concerning quantum meruit claims for services rendered, Matthews v. Matthews, 222 So. 2d 282, 286 (Fla.2d DCA 1969), the universally accepted doctrine as to attorney’s fees is that the statute of limitations accrues when the particular services are completed.”
Establishes the rule that the statute of limitations for attorney fees runs from the completion of services.
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Join FLexlaw to unlock all legal intelligenceAn attorney filed a complaint for attorney's fees for services rendered in ten separate legal matters. The trial court granted summary judgment for th…
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SCHWARTZ, Judge.
On May 2, 1975, Standford Birnholz filed a ten-count complaint for the recovery of attorney’s fees for services rendered to Sidney Steisel and others in ten separate legal matters. The trial court entered summary judgments for the defendants as to eight of the counts1 on the ground that the applicable statute of limitations had expired,2 and these appeals ensued.3 As to all but one of the counts now in issue, we affirm.
Count I involves a written agreement governed by a five-year limitations statute. § 95.11(2)(b), Fla.Stat. (1975).4 The other counts are quantum meruit claims based on oral contracts which, as specifically held infra, are subject to the four-year period which became effective on January 1, 1975. § 95.11(3)(k), Fla.Stat. (Supp.1974), replacing § 95.11(5)(e), Fla. Stat. (1971) (three-year statute). The appellants’ primary argument for reversal is based on the contention that the limitations period for attorneys’ services does not begin to run until written demand for payment, which was not made in this case until April 7, 1972, within both statutory periods.
We reject this argument. As in the case of the general Florida rule concerning quantum meruit claims for services rendered, Matthews v. Matthews, 222 So. 2d 282, 286 (Fla.2d DCA 1969),5 the universally accepted doctrine as to attorney’s fees is that the statute of limitations accrues when the particular services are completed. Atchison v. Huise, 107 Cal.App. 640, 290 P. 916, 918 (1930); Annot., Limitations — Compensation of Attorney, 60 A.L.R.2d 1008 (1958).
Even more specifically, the limitations period is not extended when a demand is made only after the services have already been rendered. On this issue, Shaad v. Hutchinson’s Boat Works, Inc., 84 Misc.2d 631, 376 N.Y. S.2d 861 (Sup.Ct.1975) is directly on point. See also, Hargrove, Guyton, Van Hook & Ramey v. Blanchard, 216 So. 2d 127, 131 (La.App., 1968), writ refused, 217 So. 2d 413 (La.1969); Stark v. Hart, 22 Tex.Civ.App. 543, 55 S.W. 378 (1900).
The authorities cited by the appellants are not on point.6 More significant, the argument the defendants espouse would permit an attorney, at his option, to delay the running of the statute ad infinitum merely by neglecting to bill his client. It is thus unsatisfactorily contrary to the very purpose of the statute of limitations itself.
Hence, we adopt the established rule to the contrary. Applying that doctrine to the case at bar, we conclude that the trial court correctly entered summary judgment as to counts 1, 4-8, and 10.
The record, particularly read in the light of the allegations of the complaint itself, conclusively demonstrates that, as to those counts, the plaintiff’s services came to an end beyond the applicable statutory periods. See, Landers v. Milton, 370 So. 2d 368 (Fla.1979).
As to count 3, we reach a different conclusion. There is evidence that those services were concluded on April 8, 1972,7 less than four years before suit was filed. The appellees argue, however, that the three-year statute in effect at that time, Section 95.11(5)(e), Florida Statutes (1971), applies and that Section 95.11(3)(k), Florida Statutes (1975) effective January 1,1975, is not retroactive. They cite Foley v. Morris, 339 So. 2d 215 (Fla.1976) for this proposition.
We disagree. As the court pointed out in Mazda Motors of America, Inc. v.
S. C. Henderson & Sons, Inc., 364 So. 2d 107 (Fla. 1st DCA 1978), cert. denied, 378 So. 2d 348 (Fla.1979), the holding in Foley was only that a statutory shortening of a limitations period will not be applied retroactively unless the legislative intention to do so clearly appears. The opposite is true when, as in this instance, the period is enlarged before the earlier statute has expired. Garris v. Weller Construction Co., 132 So. 2d 553 (Fla. 1961); Walter Denson & Son v. Nelson, 88 So. 2d 120 (Fla.1956); Corbett v. General Engineering & Machinery Co., 160 Fla. 879, 37 So. 2d 161 (1948); Talbot v. Talbot, 378 So. 2d 1307 (Fla. 4th DCA 1980); Mazda Motors of America, Inc. v.
S. C. Henderson & Sons, Inc. supra; Patterson v. Sodders, 167 So. 2d 789 (Fla. 2d DCA 1964); Martz v. Riskamm, 144 So. 2d 83 (Fla. 1st DCA 1962). The claim involved in count 3 was not barred by the three-year limitations period when it was lengthened to four years on January 1, 1975. The summary judgment on that count is therefore reversed.
Affirmed in part, reversed in part.
. Counts 2 and 9 remain pending in the trial court.
. In Steisel v. Birnholz, 313 So. 2d 125 (Fla.3d DCA 1975), cert. denied, 330 So. 2d 14 (Fla.1976), we ordered an earlier, timely action dismissed for lack of prosecution. Thereafter, Birnholz’s then-lawyers were sued in a malpractice action. They were consequently permitted to intervene as parties-plaintiff below and are co-appellants here.
. Since each of the counts was distinct and severable from the others and, indeed, would have individually supported an independent action, the summary judgments as to less than all of the counts are presently appealable under Mendez v. West Flagler Family Ass’n., Inc., 303 So. 2d 1 (Fla. 1974).
. The prior statute, which also provided a five-year period, was § 95.11(3), Fla.Stat. (1971).
. The holding of the Matthews case that “in quantum meruit..., the cause of action accrued when the services have been performed,” 222 So. 2d at 286, controls the quantum meruit claims, counts 3-8 and 10.
. The only case which is even remotely pertinent, Harris v. Butler, 91 Utah 11, 63 P. 2d 286 (1936), is completely distinguishable on the ground that the demand there was itself made at the conclusion of the services, when the statute would have otherwise begun to run anyway.
. Although this date must be accepted for summary judgment purposes, it was not established as a matter of law. The factual issue as to the date of completion must be resolved after remand.
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Stanford Birnholz v. Blake, 399 So. 2d 375 (Fla. 3d DCA 1981)…defendants as to eight of the counts on the ground that the applicable statute of limitations had expired. This court, in an opinion filed February 24,1981, affirmed the entry of summary judgment as to all but one of the counts. Birnholz v. Steisel, 394 So. 2d 523 (Fla.3d DCA 1981). The net effect is that certain of Birnholz’ claims against Steisel and the other defendants are still viable and pending in the Steisel II action. For this reason, we find that the trial court improperly denied the appellees’ moti…
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Dovenmuehle, Inc. v. Lawyers Title Ins. Corp., 478 So. 2d 423 (Fla. 4th DCA 1985)…hen the damages resulted.” Meyer v. Roth, 189 So. 2d 515 (Fla. 3d DCA 1966), cert. dismissed, 198 So. 2d 29 (Fla. 1967); Fradley v. County of Dade, 187 So. 2d 48 (Fla. 3d DCA 1966). The lender believes otherwise and cites us to Birnholz v. Steisel, 394 So. 2d 523 (Fla. 3d DCA 1981), and to Miami Beach First National Bank v. Borbiro, 201 So. 2d 571 (Fla. 3d DCA), cert. denied, 207 So. 2d 689 (Fla.1967), for the proposition that the limitation period, assuming one continuous contract, does not begin to run unt…
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Cicco v. Luckett Tobaccos, Inc., 934 So. 2d 560 (Fla. 3d DCA 2006)…ded claims, it should be appealable if dismissed with finality at trial level and not delayed because of the pendency of other claims between the parties.” Mendez v. W. Flagler Family Ass’n, 303 So. 2d 1, 5, (Fla.1974). See also Birnholz v. Steisel, 394 So. 2d 523, 523 n. 3 (Fla. 3d DCA 1981) (noting in ten-count complaint for recovery of attorney fees, each count was distinct and severable from the others and would support independent actions so that summary judgments as to less than all of the counts are pr…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (13 total)
- Irving W. Landers et ux. v. Adelle L. Milton, 370 So. 2d 368 (Fla. 1979)
- Mendez v. W. Flagler Fam. Ass'n, Inc., 303 So. 2d 1 (Fla. 1974)
- Foley v. George A. Morris, M.D., 339 So. 2d 215 (Fla. 1976)
- Corbett v. Gen. Eng'g & Mach. Co. & Glens Falls Indem. Co., 160 Fla. 879 (Fla. 1948)
- Walter Denson & SON & Va. Mut. Ins. Co. v. Nelson, 88 So. 2d 120 (Fla. 1956)
- Matthews v. Olive M. Matthews, 222 So. 2d 282 (Fla. 2d DCA 1969)
- Steisel v. Standford Birnholz, 313 So. 2d 125 (Fla. 3d DCA 1975)
- Garris v. Weller Constr. Co., 132 So. 2d 553 (Fla. 1960)
- Martz v. Riskamm, 144 So. 2d 83 (Fla. 1st DCA 1962)
- City OF N. Miami Beach v. E. Shores Sales Co., 364 So. 2d 107 (Fla. 3d DCA 1978)