DURLENE J. DRAKE, APPELLANT,
v.
GARY C. SIMONS, ET AL., APPELLEES

Fla. 5th DCA | 1991-07-11
No. 90-2162
DAUKSCH and DIAMANTES, JJ., concur.
583 So. 2d 1074 Florida District Court of Appeal, Fifth District (1991) Positive Treatment
Cited by 4 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Drake appealed the dismissal of her legal malpractice complaint against her former attorney Simons, challenging whether the two-year statute of limitations had expired. The court held that the statute of limitations for attorney malpractice does not begin to run until a client has suffered redressable harm, which in dissolution cases requires final resolution of the underlying appeal.


Holding

The statute of limitations for legal malpractice begins to run only when a client has suffered redressable harm. In cases involving appellate review, the statute does not commence until the appellate process is concluded and it is established that the client cannot remedy the alleged malpractice through a favorable appellate decision. Since Drake's appeal was decided adversely on November 9, 1989, the statute of limitations began running on that date, and her July 1990 complaint was timely.


Headnotes

[1] The statute of limitations for legal malpractice begins to run when the attorney's act of negligence becomes known or should have been known to the client.

[2] In legal malpractice actions, the statute of limitations does not begin to run until a decision adverse to a client has been appealed and a decision rendered with no furt…

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Key Quotes

“a two-year statute of limitations for legal malpractice did not begin to run until a decision adverse to a client, which was the subject of a malpractice action, had been appealed and a decision rendered with no further action taken”

Establishes the core principle that the statute of limitations clock starts after the appellate process concludes, not when the adverse trial court ruling is issued.

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Facts & Procedural History

Drake retained Simons to represent her in a dissolution action against her former husband. Drake filed a suit to reopen the dissolution judgment on Ju…

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Opinion of the Court
COBB, Judge.

COBB, Judge.

The sole issue on this appeal concerns an alleged incident of attorney malpractice and the applicable statute of limitations. An amended complaint was filed by Drake on July 27, 1990,1 claiming that Simons and his professional association were negligent in representing her interests in a dissolution action against her former husband.2

Simons, in a successful attempt to dismiss the amended complaint, argued that the statutory time period within which to bring a legal malpractice action was two years and since the complaint filed by Drake apparently acknowledged she knew of all the facts giving rise to the malpractice claim on or prior to July 8, 1987, the 1990 malpractice complaint should have been barred.

Section 95.11(4)(a), Florida Statutes (1989), which is ‘the applicable statute of limitations governing actions against attorneys for malpractice, does not begin to run at the time services are rendered by an attorney, but rather when the attorney’s act of negligence becomes known or should have been known to the client. Edwards v. Ford, 279 So. 2d 851 (Fla.1973).

In Richards Enterprises, Inc. v. Swofford, 495 So. 2d 1210 (Fla. 5th DCA 1986), cause dismissed, 515 So. 2d 231 (Fla.1987) and Adams v. Sommers, 475 So. 2d 279 (Fla. 5th DCA 1985), we held that a two-year statute of limitations for legal malpractice did not begin to run until a decision adverse to a client, which was the subject of a malpractice action, had been appealed and a decision rendered with no further action taken.3

The threshold question can be stated as follows: If the lower court’s ruling, which was adverse to the client, was reversed on appeal, would the client still have a legal cause of action for malpractice? Where the response to this question is in the negative, the statute of limitations begins to run at the time an appellate decision is rendered; otherwise, the applicable statute of limitations would begin when the client knew or should have known of the alleged malpractice. In Graham v. Holler, 499 So. 2d 62, 63 (Fla. 5th DCA 1986), we phrased the question somewhat differently as: Whether the collateral litigation, depending on its outcome, could have negated an attorney’s delinquent act.

In Peat, Marwick, Mitchell & Co. v. Lane, 565 So. 2d 1323 (Fla.1990), the Florida Supreme Court affirmed the Third District finding that a cause of action for professional malpractice did not arise until “the existence of redressable harm has been established.” Furthermore, the Third District had noted that the clients only knew that the professionals “might have been negligent” because if the tax court did not uphold a deficiency, the client would have no cause of action for accounting malpractice:

We find, consistent with the holdings of numerous attorney malpractice cases, that until their tax court action was final, the Lanes did not have an action for malpractice.

Peat, Marwick at 1326.

In the instant case, a quick review of the claimed negligence reveals that had Drake’s appeal been decided in her favor regarding the marital property disposition issue, Drake would not have had any “re-dressable” cause of action as against Si-mons. Hence, the applicable statute of limitations could only have started to run on November 9, 1989.

Accordingly, we reverse and remand the cause on the authority of Peat, Marwick, Richards and Adams.

REVERSED AND REMANDED.

DAUKSCH and DIAMANTES, JJ., concur. . The original complaint was filed on March 19, 1990.

. Drake had previously initiated a legal malpractice action against Simons, et al., on May 6, 1988, but allowed the suit to lapse due to a failure to prosecute. A suit to reopen the dissolution judgment had previously been filed by Drake on July 8, 1987. This action was subsequently dismissed by the trial court on September 19, 1988 and Per Curiam Affirmed by this court on November 9, 1989. See Drake v. Drake, 553 So. 2d 226 (Fla. 5th DCA 1989).

. See also Zakak v. Broida and Napier, P.A., 545 So. 2d 380 (Fla. 2d DCA 1989); Haghayegh v. Clark, 520 So. 2d 58, 59 (Fla. 3d DCA 1988); Diaz v. Piquette, 496 So. 2d 239 (Fla. 3d DCA 1986), rev. denied, 506 So. 2d 1042 (Fla.1987); Bimholz v. Blake, 399 So. 2d 375, 377 (Fla. 3d DCA 1981).


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Citator

Cited By

  • Ramsey v. Jonassen, 698 So. 2d 581 (Fla. 2d DCA 1997)
    …ne, 565 So. 2d 1323 (Fla.1990); Zuckerman v. Ruden, Barnett, McCloskey, Smith, Schuster & Russell, P.A., 670 So. 2d 1050 (Fla. 3d DCA 1996), rev. denied, 679 So. 2d 774 (Fla.1996); Segall v. Segall, 632 So. 2d 76 (Fla. 3d DCA 1993); Drake v. Simons, 583 So. 2d 1074 (Fla. 5th DCA 1991), rev. denied, 592 So. 2d 682 (Fla. 1991); Zakak v. Broida & Napier, P.A., 545 So. 2d 380 (Fla. 2d DCA 1989). In this case, the harm to Ramsey was not conclusively established until this court addressed whether the stock was hel…
  • Reynel Clemente v. Freshman, 760 So. 2d 1059 (Fla. 3d DCA 2000)
    …La Fe, P.A., 705 So. 2d 41, 43 (Fla. 3d DCA 1997); Ramsey v. Jonassen, 698 So. 2d 581, 582 (Fla. 2d DCA 1997); Throneburg v. Boose, Casey, Ciklin, Lubitz, Martens, McBane & O’Connell, P.A., 659 So. 2d 1134, 1136 (Fla. 4th DCA 1995); Drake v. Simons, 583 So. 2d 1074, 1075 (Fla. 5th DCA 1991).1 This is because, until that time, it cannot be determined whether there was any actionable error by the attorney. See Peat, Marwick; see also Hold v. Manzini, 736 So. 2d at 142 (stating that “until that time, a legal malp…

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