BREAKERS OF FORT LAUDERDALE, LTD., A FLORIDA LIMITED PARTNERSHIP, APPELLANT,
v.
JAMES S. CASSEL, APPELLEE
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Breakers of Fort Lauderdale appealed a trial court's dismissal of its legal malpractice complaint against attorney James Cassel for allegedly failing to settle a lawsuit, arguing the statute of limitations had not yet run. The Florida District Court of Appeal reversed, holding that the cause of action accrued when Breakers learned the lawsuit had been revived, not when it ultimately paid damages, and that the amended complaint was not beyond cure despite deficiencies.
The cause of action for legal malpractice accrued when Breakers learned that the lawsuit against it had been revived, not when it paid damages to the claimant. The amended complaint, while deficient in failing to establish conclusively when Breakers actually knew of the malpractice, was not beyond cure and should have been permitted to be amended rather than dismissed with prejudice.
[1] A legal malpractice claim accrues when the client suffers damage, which can occur when the client incurs expenses due to the attorney's alleged malpractice, even if the f…
[2] A cause of action for legal malpractice against an attorney who allegedly failed to consummate a settlement accrues when the client learns the lawsuit has been revived, n…
Previewing 2 of 5 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“Damage to Breakers occurred the moment it was called upon to incur the expense of having to continue to defend against a lawsuit that should have been settled but for its attorney's alleged malpractice. That moment — and the accrual of the cause of action for legal malpractice — occurred when Breakers learned that the lawsuit against it had been revived, not, as Breakers urges, when it paid damages to the claimant.”
Establishes the key holding on when a cause of action for malpractice accrues in the settlement failure context
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Join FLexlaw to unlock all legal intelligenceBreakers had an attorney, James Cassel, who allegedly failed to properly consummate the settlement of a lawsuit against Breakers. The settlement had b…
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PER CURIAM.
Finding that the statute of limitations had run on the plaintiff’s cause of action for legal malpractice, the trial court dismissed the amended complaint with prejudice. The amended complaint, while deficient in that it failed to establish conclusively when appellant actually knew that its attorney's conduct constituted malpractice, was not beyond cure. We therefore reverse the dismissal with directions to permit plaintiff to amend. See Tucker v. Brennan, 458 So. 2d 367 (Fla. 2d DCA 1984).
We note, however, that the trial court was correct in rejecting the alternative argument of Breakers of Fort Lauder-dale, Ltd., [Breakers] that the statute of limitations did not begin to run until May 23, 1986, when the lawsuit which Cassel allegedly improperly failed to settle was concluded with Breakers having to pay a substantially greater amount than the amount contained in the earlier agreed upon, but unconsummated, settlement. Damage to Breakers occurred the moment it was called upon to incur the expense of having to continue to defend against a lawsuit that should have been settled but for its attorney’s alleged malpractice. That moment — and the accrual of the cause of action for legal malpractice — occurred when Breakers learned that the lawsuit against it had been revived, not, as Breakers urges, when it paid damages to the claimant. The court’s opinion in Diaz v. Piquette, 496 So. 2d 239 (Fla. 3d DCA 1986), review denied, 506 So. 2d 1042 (Fla.1987), upon which Breakers relies, addresses the question of when a cause of action for legal malpractice accrues against an attorney who has lost a case at trial, not the question of when a cause of action for legal malpractice accrues against an attorney who has allegedly improperly failed to consummate the settlement of a case. In the former situation, as Diaz correctly holds, there can be no claim of malpractice until the loss determined at trial is made final on appeal; in the latter and present situation, one need not await the eventual result of the lawsuit that should have been settled to determine that the failure to complete the settlement is malpractice and that damage from that failure, although not then completely ascertainable, is immediate. See City of Miami v. Brooks, 70 So. 2d 306 (Fla.1954).
Reversed and remanded with directions.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Segall v. Segall, 632 So. 2d 76 (Fla. 3d DCA 1993)…for malpractice. See, e.g., Zitrin, 621 So. 2d 748 (where attorney failed to include requested provisions in employment contract, malpractice plaintiff not required to confirm attorney’s error on appeal); Breakers of Fort Lauderdale, Ltd. v. Cassel, 528 So. 2d 985 (Fla. 3d DCA 1988) (when attorney improperly failed to consummate settlement of lawsuit, cause of action for legal malpractice accrued when client learned that lawsuit was revived). We are unable to establish a bright-line rule that complete appella…
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Pa. Ins. Guar. Ass'n v. Sikes, 590 So. 2d 1051 (Fla. 3d DCA 1991)…, Marwick, Mitchell & Co. v. Lane, 565 So. 2d 1323, 1324 (Fla.1990) (in accounting malpractice action, if tax court did not uphold deficiency, there would be no action against accountants for malpractice); Breakers of Ft. Lauderdale, Ltd. v. Cassel, 528 So. 2d 985, 986 (Fla. 3d DCA 1988) (no claim for malpractice exists until loss at trial level is made final on appeal). The summary judgment is affirmed.…
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Sawyer v. Earle, 541 So. 2d 1232 (Fla. 2d DCA 1989)…. 5th DCA 1985) (no damage suffered and statute of limitations did not run until case on appeal was finally resolved, the court rendered its decision, and no further review was sought). More recently, in Breakers of Fort Lauderdale, Ltd. v. Cassel, 528 So. 2d 985 (Fla. 3d DCA 1988), the third district stated that where an attorney improperly failed to settle a lawsuit, the damage occurred and the cause of action accrued at the moment the client incurred the expense of having to continue to defend against a l…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- City of Miami v. Brooks, 70 So. 2d 306 (Fla. 1954)
- Eligio Barrios & Goldstone Co., N.V. v. Duran, 496 So. 2d 239 (Fla. 3d DCA 1986)
- Bismark Diaz & Bis D. Corp. v. Piquette, 496 So. 2d 239 (Fla. 3d DCA 1986)
- Tucker v. Vaughn C. Brennan, 458 So. 2d 367 (Fla. 2d DCA 1984)