HERMAN ZUCKERMAN, APPELLANT,
v.
RUDEN, BARNETT, MCCLOSKEY, SMITH, SCHUSTER & RUSSELL, P.A., APPELLEE
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Herman Zuckerman appeals summary judgment dismissing his legal malpractice suit against his former law firm Ruden Barnett for failing to obtain the wife's signature on a mortgage for homestead property. The court reversed, holding that the statute of limitations for malpractice does not begin to run until redressable harm is established, which in this case requires final resolution of the underlying foreclosure action.
The statute of limitations for a legal malpractice action accrues only upon the establishment of redressable harm, not merely upon discovery of the alleged malpractice. Here, redressable harm has not yet been established because the underlying foreclosure action remains pending, and Zuckerman may still successfully foreclose despite the wife's failure to execute the mortgage. Only when the foreclosure action is entirely resolved will the statute of limitations begin to run.
[1] A cause of action for legal malpractice accrues when redressable harm is established, not merely upon discovery of potential malpractice.
[2] The statute of limitations for a legal malpractice action begins to run only when the client suffers damages proximately caused by the attorney's alleged negligence.
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Join FLexlaw to unlock all legal intelligence“Zuckerman's mere knowledge of possible malpractice is not dispositive of when a malpractice action accrues.”
Establishes that discovery of potential malpractice alone does not start the statute of limitations clock
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Join FLexlaw to unlock all legal intelligenceZuckerman hired Ruden Barnett to prepare a mortgage for a business loan involving homestead property. The firm failed to obtain the signature of the t…
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PER CURIAM.
Appellant, Herman Zuckerman (“Zucker-man”), appeals an adverse summary judgment in his legal malpractice suit against appellee Ruden, Barnett, McCloskey, Smith, Schuster & Russell, PA. (“Ruden Barnett”). We reverse.
Zuckerman retained Ruden Barnett to represent him in a business transaction that included Zuckerman loaning money to a third party in exchange for a promissory note and property mortgage. Ruden Barnett prepared the mortgage, which the third party executed.
One year later, the third party defaulted on the loan. On April 5, 1992, Zuckerman learned that foreclosing on the property would be “problematic” because the third party’s wife did not execute the mortgage, even though the subject of the mortgage was homestead property.
Zuckerman retained new counsel and filed a foreclosure action. The third party asserted as an affirmative defense that the mortgage is invalid because the property was homestead property and his wife did not execute the mortgage. The foreclosure action is currently pending in the circuit court.
On April 5, 1994, roughly twenty-one months after Ruden Barnett refused to take an assignment of the mortgage and note, Zuckerman filed suit for legal malpractice. Ruden Barnett moved for summary judgment, arguing that the two-year statute of limitations for malpractice actions had expired. The trial court agreed, finding that Zuckerman’s cause of action accrued in April 1992, when he learned of the potential defect in the mortgage, and thus, his action was barred.
On appeal, Zuckerman asserts that the statute of limitations begins accruing only upon the existence of redressable harm, which has yet to be determined. Ruden Barnett argues that the statute of limitations began running when Zuckerman first discovered the alleged malpractice in 1992.
Contrary to Ruden Barnett’s assertions, Zuckerman’s mere knowledge of possible malpractice is not dispositive of when a malpractice action accrues. See Adams v. Sommers, 475 So. 2d 279 (Fla. 5th DCA 1985). Rather, the test for determining when a legal malpractice cause of action has accrued is based upon the establishment of redressable harm. Peat, Marwick, Mitchell & Co. v. Lane, 565 So. 2d 1823 (Fla.1990); Bierman v. Miller, 639 So. 2d 627 (Fla. 3d DCA 1994).
Here, unless Zuckerman is unable to foreclose on the mortgage, he will not have suffered damages proximately caused by Ru-den Barnett’s alleged failure to obtain the wife’s signature on the mortgage. See Bierman, 639 So. 2d at 627; Spivey v. Trader, 620 So. 2d 212 (Fla. 4th DCA 1993); Haghayegh v. Clark, 520 So. 2d 58 (Fla. 3d DCA 1988). Only when the foreclosure action has been entirely resolved will the statute of limitations on the malpractice action begin to run. Adams, 475 So. 2d at 279. Thus, Zucker-man’s malpractice action is certainly not barred by the statute of limitations. Accordingly, the trial court’s entry of summary judgment in favor of Ruden Barnett is reversed.
Reversed.
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Hold v. Manzini, 736 So. 2d 138 (Fla. 3d DCA 1999)…the time of their execution of the general release is of no moment as their mere knowledge of possible malpractice is not dispositive of when a malpractice action accrues. See Zuckerman v. Ruden, Barnett, McCloskey, Smith, Schuster & Russell, P.A., 670 So. 2d 1050, 1051 (Fla. 3d DCA 1996). As stated earlier, the test for determining when a legal malpractice cause of action has accrued is based upon the establishment of redressable harm. See id.; see also Peat, Marwick, Mitchell & Co. v. Lane, 565 So. 2d 1323,…
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Taracido v. Perez-Abreu, Zamora & DE LA FE, P.A., 705 So. 2d 41 (Fla. 3d DCA 1997)…o. 2d 1323 (Fla.1990); Bierman v. Miller, 639 So. 2d 627 (Fla. 3d DCA 1994). Knowledge of potential harm from malpractice is not sufficient to begin the limitations period. See Zuckerman v. Ruden, Barnett, McCloskey, Smith, Schuster & Russell, P.A., 670 So. 2d 1050 (Fla. 3d DCA), review denied 679 So. 2d 774 (Fla.1996); Adams v. Sommers, 475 So. 2d 279 (Fla. 5th DCA 1985). As this Court explained in Bierman v. Miller, 639 So. 2d at 628: No cause of action for legal malpractice “should be deemed to have accru…
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Kelly v. Lodwick, 82 So. 3d 855 (Fla. 4th DCA 2011)…not have suffered any damages. “[T]he mere possibility of damage at a later date” is insufficient to commence the limitations period. Kellermeyer, 427 So. 2d at 346-47; accord Zuckerman v. Ruden, Barnett, McCloskey, Smith, Schuster & Russell, P.A., 670 So. 2d 1050, 1051 (Fla. 3rd DCA 1996) (“[Mjere knowledge of possible malpractice is not dispositive of when a malpractice action accrues. Rather, the test for determining when a legal malpractice cause of action has accrued is based upon the establishment of re…
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
- Bierman v. Miller, 639 So. 2d 627 (Fla. 3d DCA 1994)
- Abdolhossain Haghayegh and Gholamossain Haghayegh v. Clark, 520 So. 2d 58 (Fla. 3d DCA 1988)
- Adams v. Sommers, 475 So. 2d 279 (Fla. 5th DCA 1985)
- Spivey v. Trader, 620 So. 2d 212 (Fla. 4th DCA 1993)