RAYMOND E. SLAPIKAS AND APOLLO SYSTEMS, INC., APPELLANTS,
v.
CARLOS M. LLORENTE, P.A., AND CARLOS M. LLORENTE, APPELLEES
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Appellants filed a legal malpractice action against their former attorney, which was dismissed as time-barred. The trial court awarded attorney's fees under section 57.105, Florida Statutes, finding the malpractice claim frivolous. The appellate court reversed, holding that the malpractice claim was timely filed and therefore not subject to dismissal on statute of limitations grounds.
A legal malpractice action is timely if filed within two years of when the cause of action accrued, which occurs when the underlying action is concluded with an adverse outcome to the client. Since appellants' malpractice action was filed in March 1998, less than two years after the copyright case was dismissed in April 1996, the action was not barred by the statute of limitations and therefore could not be dismissed as frivolous under section 57.105.
[1] A legal malpractice action accrues when the underlying action concludes with an adverse outcome to the client.
[2] The statute of limitations for legal malpractice is two years.
Previewing 2 of 4 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“An action for legal malpractice does not accrue "until the underlying action is concluded with an adverse outcome to the client."”
Establishes the accrual date for legal malpractice claims, which is critical to determining whether the statute of limitations has run.
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Join FLexlaw to unlock all legal intelligenceAppellees, a lawyer and his firm, failed to properly obtain service on a defendant in a federal copyright infringement lawsuit. This defect in service…
The full statement of facts, procedural history, and disposition for this case are member content.
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KLEIN, J.
Appellants were plaintiffs in a legal malpractice action against appellees. After the trial court dismissed the malpractice case on the ground that the statute of limitations had run, the court entered the order which is the subject of this appeal, awarding attorney’s fees pursuant to section 57.105, Florida Statutes (1997). We reverse.
Under section 57.105, Florida Statutes, a court can award attorney’s fees where it finds “a total or absolute lack of a justiciable issue, which is tantamount to a finding that the action is frivolous ... and so clearly devoid of merit both on the facts and the law as to be completely untenable.” Whitten v. Progressive Cas. Ins. Co., 410 So. 2d 501, 505 (Fla.1982). Whether fees should have been awarded in this case depends, accordingly, on whether the underlying legal malpractice lawsuit was so clearly and obviously barred by the statute of limitations as to bring it within section 57.105.
The legal malpractice case centered on the failure of the appellee defendant lawyer to properly obtain service on a defen dant in a federal lawsuit involving copyright infringement. In the copyright case the defect in service resulted in a dismissal of the case in April 1996, and the case could not be refiled because the statute of limitations had run.
An action for legal malpractice does not accrue “until the underlying action is concluded with an adverse outcome to the client.” Silvestrone v. Edell, 721 So. 2d 1173, 1175 (Fla.1998); Lenahan v. Russell L. Forkey, P.A., 702 So. 2d 610 (Fla. 4th DCA 1997). The period of limitations for legal malpractice is two years. § 95.11(4)(a), Fla. Stat. (1997). In this case, the action for legal malpractice was timely, because it was filed in March 1998, less than two years after the cause of action accrued, which was when the copyright case was dismissed in April 1996. Accordingly, the malpractice action was not barred by the statute of limitations, and the order awarding attorney’s fees under section 57.105, pursuant to the dismissal1 of the malpractice action, is reversed.
STONE, J., and OWEN, WILLIAM C., Jr., Senior Judge, concur. . The dismissal was apparently not appealed.
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Pappalardo v. Richfield Hospitality Servs., Inc., 790 So. 2d 1226 (Fla. 4th DCA 2001)…(Fla. 4th DCA 1996). Whether fees should have been awarded in this case depends upon whether the underlying cause of action, which was dismissed by the trial court, was so clearly and obviously lacking as to be untenable. See Slapikas v. Llorente, 766 So. 2d 440 (Fla. 4th DCA 2000); see also Boyce v. Cluett, 672 So. 2d 858, 861 (Fla. 4th DCA 1996) (an award of attorney’s fees is appropriate only where the complaint fails to allege any justiciable issue). In the case at bar we cannot say the Plaintiffs’ clai…
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Lussy v. Damsel, 890 So. 2d 1184 (Fla. 4th DCA 2004)…nce this action prior to the expiration of the statute of limitations. Thus the trial court properly found Lus-sy’s suit for legal malpractice barred by the two-year statute of limitations. See § 95.11(4)(a), Fla. Stat. (2004); Slapikas v. Llorente, 766 So. 2d 440 (Fla. 4th DCA 2000). It is also undisputed that Lussy has abused the processes of this Court, as well [*1185] as other Courts, with his numerous frivolous filings. See Lussy v. Fourth Dist Court of Appeal, 828 So. 2d 1026 (Fla.2002). The instant a…
Authorities Cited
- Whitten v. Progressive Cas. Ins. Co., 410 So. 2d 501 (Fla. 1982)
- Art Silvestrone v. Edell, 721 So. 2d 1173 (Fla. 1998)
- Lenahan v. Russell L. Forkey, P.A., 702 So. 2d 610 (Fla. 4th DCA 1997)