DAYTONA DEVELOPMENT CORPORATION, A/K/A DAYTONA CORPORATION, A FLORIDA CORPORATION; K.D. SAUDER, A/K/A KENNETH D. SAUDER AND ANITA L. SAUDER, HIS WIFE; GREGG, INC., A FLORIDA CORPORATION; CLEARDALE, INC., A FLORIDA CORPORATION, APPELLANTS,
v.
DONALD O. MCFARLAND; PHILLIPS, MCFARLAND, GOULD, WILHELM & WAGSTAFF, P.A., A FLORIDA PROFESSIONAL CORPORATION, FORMERLY PHILLIPS, MCFARLAND, GOULD & KORNES, P.A., A FLORIDA PROFESSIONAL CORPORATION; ST. PAUL FIRE & MARINE INSURANCE; THE TRAVELERS INDEMNITY COMPANY; GULF INSURANCE COMPANY; UNITED STATES FIRE INSURANCE COMPANY; AND SELECT INSURANCE COMPANY, APPELLEES
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The court reversed a directed verdict on statute of limitations grounds in a legal malpractice case, holding that the evidence did not prove as a matter of law that plaintiffs discovered or should have discovered their cause of action before the statutory deadline.
A directed verdict on statute of limitations grounds in a legal malpractice case is improper when the evidence does not conclusively prove that plaintiffs discovered or should have discovered their cause of action before the statutory deadline.
[1] A directed verdict on statute of limitations grounds in a legal malpractice action is improper when the evidence does not conclusively establish that the plaintiff discov…
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Join FLexlaw to unlock all legal intelligencePlaintiffs filed a legal malpractice suit against defendants on February 22, 1978. Defendants raised a statute of limitations defense under section 95…
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PER CURIAM.
The plaintiffs filed a legal malpractice suit against the defendants on February 22, 1978. The defendants raised as an affirmative defense that the action was barred by the applicable statute of limitations, section 95.11(4)(a), Florida Statutes (1977). This section provides that a suit for legal malpractice shall be commenced within two years “from the time the cause of action is discovered or should have been discovered with the exercise of due diligence.” At the conclusion of the plaintiffs’ case at trial, the court granted the defendants’ motion for a directed verdict on the ground that the evidence presented during the plaintiffs’ case proved the defendants’ statute of limitations defense as a matter of law. The plaintiffs appeal the final judgment rendered pursuant to the directed verdict.
Evaluating the evidence on the statute of limitations issue in a light most favorable to the plaintiffs, and indulging every reasonable inference adduced therefrom in their favor, it cannot be held that the evidence presented during the plaintiffs’ case proved as a matter of law that they discovered or should have discovered their cause of action with the exercise of due diligence before February 22, 1976. See Smith v. Hussey, 363 So. 2d 1138 (Fla. 2d DCA 1978). See also Swagel v. Goldman, 393 So. 2d 65 (Fla. 3d DCA 1981).
Accordingly, we REVERSE the final judgment and REMAND for a new trial.
HOBSON, A.C.J., and BOARDMAN and DANAHY, JJ., concur.
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Citator
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Hofer v. Ross, 481 So. 2d 939 (Fla. 2d DCA 1985)…gations in their second amended complaint. Therefore, the trial court erred in dismissing this complaint on the basis of the statute of limitations. Green v. Bartel, 365 So. 2d 785 (Fla. 3d DCA 1978). See also Daytona Development Corp. v. McFarland, 454 So. 2d 761 (Fla. 2d DCA 1984), petition for review denied, 462 So. 2d 1107 (Fla.1985); Smith v. Hussey, 363 So. 2d 1138 (Fla. 2d DCA 1978). Accordingly, we reverse and remand for reinstatement of the Hofers’ second amended complaint. CAMPBELL and SCHOONOVER,…
Authorities Cited
- Swagel v. Solomon B. Goldman, 393 So. 2d 65 (Fla. 3d DCA 1981)
- Smith v. Hussey, 363 So. 2d 1138 (Fla. 2d DCA 1978)