LONNIE E. WILLOUGHBY, JR., APPELLANT,
v.
DOWDA AND FIELDS, CHARTERED F/D/B/A DOWDA AND FIELDS, P.A. AND ALAN B. FIELDS, JR., INDIVIDUALLY, APPELLEES
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Willoughby appealed a summary judgment that barred his legal malpractice counterclaim against his former attorney Fields based on the statute of limitations. The court reversed, holding that the statute of limitations had not expired and that Willoughby was entitled to assert his malpractice claim as a setoff against Fields' fee claim.
The court reversed the summary judgment, holding that the statute of limitations for legal malpractice does not begin to run until the underlying lawsuit in which the malpractice allegedly occurred has been finally lost on appeal, which in this case did not occur until October 8, 1991. Additionally, even if the claim were time-barred, Willoughby would be entitled to set off his malpractice claim against any sums awarded in Fields' suit for fees.
[1] A statute of limitations for legal malpractice generally does not begin to run until the underlying lawsuit in which the claimed malpractice occurred has been finally los…
[2] A claim for legal malpractice, even if time-barred, may be asserted as a setoff against a claim for legal fees arising from the same underlying litigation.
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Join FLexlaw to unlock all legal intelligence“the statute does not generally begin to run until the underlying lawsuit in which the claimed malpractice took place has been finally lost on appeal”
Establishes the controlling legal rule for when the statute of limitations begins in legal malpractice cases
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Join FLexlaw to unlock all legal intelligenceFields, an attorney, and his professional association sued Willoughby for unpaid legal fees. Willoughby filed a counterclaim alleging legal malpractic…
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W. SHARP, Judge.
Willoughby appeals from a summary judgment denying him any affirmative relief on his malpractice counterclaim filed in a lawsuit brought by Fields (an attorney), and Fields’ professional association, for legal services. Willoughby’s counterclaim arose out of the same litigation as Fields’ suit for fees. The trial judge ruled that Willoughby’s malpractice claim was barred by the two-year statute of limitations,1 because he was aware of Fields’ alleged malpractice as of October 3, 1989, and he did not file his counterclaim until September 19, 1992. We reverse.
Fields concedes the summary judgment cannot be based on the statute of limitations bar. In the first place, the statute does not generally begin to run until the underlying lawsuit in which the claimed malpractice took place has been finally lost on appeal. Edwards v. Ford, 279 So. 2d 851 (Fla.1973); Richards Enterprises, Inc. v. Swofford, 495 So. 2d 1210 (Fla. 5th DCA 1986); Magic World, Inc. v. Icardi, 483 So. 2d 815 (Fla. 5th DCA 1986); Adams v. Sommers, 475 So. 2d 279 (Fla. 5th DCA 1985). That did not occur in this case until October 8,1991, when the lower court’s judgment was affirmed (adversely to Willoughby) by this court. Other circumstances' may start the statute running earlier, but summary judgment was premature on this basis.
Further, even if time-barred, Wil-loughby is entitled to set off his claim against Fields or his professional association for sums awarded in the suit for fees. See Allie v. Ionata, 503 So. 2d 1287 (Fla.1987); Payne v. Nicholson, 100 Fla. 1459, 131 So. 324 (1930).
Fields argues the summary judgment should be upheld, although granted for the wrong reason, because Willoughby is suing Fields in the United States District Court for Florida on the same cause of action. See Birnholz v. Steisel, 338 So. 2d 862, 863 (Fla. 3d DCA 1976). However, the record in this case is insufficient to establish anything substantive with regard to the federal litigation. And, in any event, it does not address Wil-loughby’s right to assert his malpractice claim by way of set off or recoupment.
REVERSED and REMANDED.
GOSHORN and PETERSON, JJ., concur. . § 95.11, Fla.Stat. (1993).
ON MOTION FOR REHEARING AND/OR CLARIFICATION
W. SHARP, Judge.
We grant the motion for rehearing and/or clarification to clarify that Fields, individually or personally, cannot be subject to recoupment or set off on a claim brought by Willoughby.
This lawsuit was brought solely by Fields’ law firm, Dowda & Fields, a professional association. Fields did not, in his personal or individual capacity, institute a claim against Willoughby. Recoupment is only available as a defense when an affirmative claim has been asserted against a party. It is well established that the defense of recoupment may be asserted defensively where the underlying claim is barred by the statute of limitations. However, this principle does not apply in the present case1 because Fields personally has instituted no claim against Willoughby. Thus, on remand, Willoughby’s claim in recoupment cannot be utilized defensively against Fields individually. Willough-by’s recoupment claim, in this case, should be limited to Dowda and Fields, P.A., on remand.
In all other respects, the motion is denied.
GOSHORN and PETERSON, JJ., concur. . See Allie v. Ionata, 503 So. 2d 1237 (Fla.1987).
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Beach v. Great W. Bank, 692 So. 2d 146 (Fla. 1997)…ver, that does not end our inquiry. [*150] In Florida, “[i]t is well established that the defense of recoupment may be asserted defensively where the underlying claim is barred by the statute of limitations.” Willoughby v. Dowda & Fields, Chartered, 643 So. 2d 1098, 1099 (Fla. 5th DCA 1994) (on rehearing); see also Allie v. Ionata, 503 So. 2d 1237 (Fla.1987); Payne v. Nicholson, 100 Fla. 1459, 131 So. 324 (1930). Similarly, this principle informed the court in Dawe v. Merchants Mortgage & Trust Corp., 683 P. 2…
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Dove v. McCORMICK, 698 So. 2d 585 (Fla. 5th DCA 1997)…as raised as a defense in the nature of recoupment. Specifically, she maintains that “the defense of recoupment may be asserted defensively where the underlying claim is barred by the statute of limitations.” Willoughby v. Dowda & Fields, Chartered, 643 So. 2d 1098, 1099 (Fla. 5th DCA 1994). More particularly, Dove relies on Dawe v. Merchants Mortgage & Trust Corp., 688 P. 2d 796 (Colo.1984), wherein the Colorado supreme court, treating the three-year period in subsection 1635(f) as a statute of limitation ins…
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O'Brien v. Fed. Tr. Bank, 727 So. 2d 296 (Fla. 5th DCA 1999)…89 (1991). Even if barred as an independent action by the statute of limitations, a claim may be asserted defensively as a counterclaim for recoupment or setoff. Allie v. Ionata, 503 So. 2d 1237 (Fla.1987); Willoughby v. Dowda and Fields, Chartered, 643 So. 2d 1098 (Fla. 5th DCA 1994) (on rehearing); Johnson v. Allen, Knudsen, DeBoest, Edwards & Rhodes, P.A., 621 So. 2d 507 (Fla. 2d DCA 1993); Evans v. Parker, 440 So. 2d 640 (Fla. 1st DCA 1983). We do not agree with FTB that 15 U.S.C. § 15b is a statute of re…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Allie v. Ionata, 503 So. 2d 1237 (Fla. 1987)
- Edwards v. Ford, 279 So. 2d 851 (Fla. 1973)
- Lundy v. Hettie Hunter Lundy, 100 Fla. 1512 (Fla. 1930)
- Payne v. Nicholson, 100 Fla. 1459 (Fla. 1930)
- Standford Birnholz v. Steisel, 338 So. 2d 862 (Fla. 3d DCA 1976)
- Adams v. Sommers, 475 So. 2d 279 (Fla. 5th DCA 1985)
- Richards Enters., Inc. v. Swofford, 495 So. 2d 1210 (Fla. 5th DCA 1986)
- Magic World, Inc. v. Aldo Icardi & Icardi Law Offs., P.A., 483 So. 2d 815 (Fla. 5th DCA 1986)