HARRY A. GAINES, APPELLANT,
v.
DON RUSSO, INDIVIDUALLY, THOMAS A. CULMO, RUSSO & CULMO, P.A., ELIZABETH KOEBEL RUSSO, INDIVIDUALLY, PATRICE A. TALISMAN, INDIVIDUALLY, AND RUSSO & TALISMAN, P.A., APPELLEES
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Harry Gaines appealed the dismissal of his legal malpractice action against the attorneys who represented him in a personal injury case. The court reversed the dismissal on statute of limitations grounds based on the recently announced Silvestrone v. Edell rule, but affirmed dismissals on other grounds with leave to amend.
The statute of limitations for legal malpractice in a litigation-related context does not commence to run until the final judgment becomes final. The dismissal based on statute of limitations was reversed as the lawsuit was timely filed. Dismissals for failure to state a cause of action were affirmed with leave to amend, and other rulings striking the sham tolling agreement and punitive damages claim were affirmed.
[1] The statute of limitations for legal malpractice in a litigation-related context does not commence to run until the final judgment becomes final.
[2] A judgment becomes final upon the expiration of the time for filing an appeal or postjudgment motions, or, if an appeal is taken, upon the appeal being affirmed and eithe…
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Join FLexlaw to unlock all legal intelligence“[W]e hold that the statute of limitations does not commence to run until the final judgment becomes final.”
The Silvestrone rule establishing when the limitations period for legal malpractice begins to run, which was the basis for reversing the statute of limitations dismissal.
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Join FLexlaw to unlock all legal intelligenceGaines was the plaintiff in a personal injury action represented by the appellee attorneys. He received a trial judgment that he deemed unsatisfactory…
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PER CURIAM.
Harry A. Gaines (“the client”) appeals orders dismissing his legal malpractice action against the appellee attorneys. We affirm in part and reverse in part.
I.
The client was plaintiff in a personal injury action in which he was represented by the appellee attorneys. He received a judgment at trial which he deemed unsatisfactory. Contending that the attorneys had been guilty of professional negligence in the litigation of the case, he brought this legal malpractice action. The trial court dismissed the legal malpractice claims under the statute of limitations, and the client has appealed.
During the pendency of this appeal, the Florida Supreme Court announced Silvestrone v. Edell, 721 So. 2d 1173, 23 Fla. L. Weekly S625 (Fla.1998), which states:
[W]e hold that the statute of limitations does not commence to run until the final judgment becomes final.2
Id. at 1175 & n.2, 23 Fla. L. Weekly at S626 & n. 2. Based on the just-stated rule, it is clear that this lawsuit was timely filed, and the dismissal order must be reversed. We do not fault the trial court for its ruling; as the Silvestrone court itself acknowledged, heretofore Florida law has not been clear “as to when the limitations period for legal mal practice in a litigation-related context begins to run.” Id.
II.
Several additional issues are presented for decision. Some counts were dismissed for failure to state a cause of action. The dismissal orders are affirmed, but with leave to amend on remand.* The client must also have leave to amend the gross negligence claim. The trial court struck as sham that part of the complaint which alleged the existence of an agreement between the parties to toll the statute of limitations. That ruling is supported by the record and is affirmed. The order striking the punitive damage claim without prejudice is affirmed. See § 768.72, Fla. Stat. (1997).
III.
The orders under review are affirmed in part, reversed in part, and remanded for further proceedings consistent herewith.
Affirmed in part, reversed in part.
For instance, a judgment becomes final either upon the expiration of the time for filing an appeal or postjudgment motions, or, if an appeal is taken, upon the appeal being affirmed and either the expiration of the time for filing motions for rehearing or a denial of the motions for rehearing.
*
The parties have advised us that the battery claim has been dropped.
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Cited By
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Edda Ferrari v. Vining, 744 So. 2d 480 (Fla. 3d DCA 1999)…new counsel about what Vining had allegedly done wrong, because that discussion would trigger when time began to run for statute of limitations purposes, and Vining hoped to prove Ferrari’s action was time barred. Vining was wrong. Gaines v. Russo, 723 So. 2d 398 (Fla. 3d DCA 1999) (citing Silvestrone v. Edell, 721 So. 2d 1173 (Fla.1998)), settles the question of when the statute of limitations for a malpractice action begins to run. In Silvestrone, 721 So. 2d at 1175, the Supreme Court concluded: To be lia…
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Jeff & Betsy Durden Reeves v. Barrett, 964 So. 2d 869 (Fla. 1st DCA 2007)…ion commenced when the summary judgment was entered. However, the limitations time did not commence until the summary judgment became final by expiration of the time for appeal. See Silvestrone v. Edell, 721 So. 2d 1173 (Fla. 1998); Gaines v. Russo, 723 So. 2d 398 (Fla. 3d DCA 1999). Because the malpractice action was filed within two years from that date, it was timely and should not have been dismissed. The appealed order is reversed, and the case is remanded. BARFIELD, ALLEN and HAWKES, JJ., concur.…
Authorities Cited
- Art Silvestrone v. Edell, 721 So. 2d 1173 (Fla. 1998)