DONALD J. SMITH, APPELLANT,
v.
JERRY R. HUSSEY AND WALTER R. TALLEY, APPELLEE
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An attorney was granted summary judgment on statute of limitations grounds in a legal malpractice case. The appellate court reversed, finding that when the plaintiff became aware of the attorney's negligence was a factual question for the jury, not determinable on summary judgment.
The statute of limitations commencement date presents a factual question that cannot be determined on summary judgment. The trial court erred in granting summary judgment because there was a factual dispute as to when Smith knew or should have known that Hussey's handling constituted malpractice.
[1] A statute of limitations may not begin to run if a client continues to be represented by an attorney and is assured that the matter will be satisfactorily resolved, creat…
[2] Summary judgment is inappropriate when there is a factual dispute as to when a client became aware of an attorney's alleged negligence, which is determinative of when the…
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Join FLexlaw to unlock all legal intelligence“there was a factual question as to when Smith knew or should have known that Hussey's handling of the case constituted malpractice, and thus there was a factual issue as to when the statute of limitations commenced running”
Establishes that the timing of when malpractice knowledge accrued is a fact question, not a legal one determinable on summary judgment
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Join FLexlaw to unlock all legal intelligenceSmith retained attorney Hussey for legal representation. On September 22, 1972, Smith became aware that his property rights were in jeopardy due to Hu…
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PER CURIAM.
This is an appeal from entry of a summary judgment in favor of appellee/defendant Hussey, an attorney charged with malpractice in the representation of his former client, appellant/plaintiff Smith. Hussey pled the statute of limitations as an affirmative defense. In his motion for summary judgment Hussey alleged that Smith’s complaint had not been filed within the applicable statute-of-limitations period. The trial court granted Hussey a summary judgment on this basis, specifically finding that Smith became aware of Hussey’s alleged negligence on September 22, 1972, and that the two-year limitation period of § 95.11(4)(a), Fla.Stat. (1975) barred his suit filed on September 14, 1976. We reverse.
In Smith’s affidavit in opposition to the motion for summary judgment he stated that he became aware on September 22, 1972, that his property rights were in jeopardy because of Hussey’s alleged negligence. However, Hussey continued to represent his former client and, according to Smith’s affidavit, continued to assure him that the matter would be satisfactorily resolved. Accordingly, there was a factual question as to when Smith knew or should have known that Hussey’s handling of the case constituted malpractice, and thus there was a factual issue as to when the statute of limitations commenced running. As a result, the trial court should not have determined the matter on summary judgment, but rather, should have left the question to the trier of fact. Edwards v. Ford, 279 So. 2d 851 (Fla.1973); Pinkerton v. West, 353 So. 2d 102 (Fla. 4th DCA 1977); Schetter v. Jordan, 294 So. 2d 130 (Fla. 4th DCA 1974).
In view of what we have said, we remand this case for further proceedings.
HOBSON, Acting C. J., and SCHEB and OTT, JJ., concur.
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Citator
Cited By
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Stanford Birnholz v. Blake, 399 So. 2d 375 (Fla. 3d DCA 1981)…tion facts, most assuredly may be presented to the trier of fact as bearing upon the ultimate issue to be resolved by it as to whether or not Birnholz was on notice or should have been on notice of the appellees’ alleged negligence. Smith v. Hussey, 363 So. 2d 1138 (Fla.2d DCA 1978). THE CROSS-APPEAL In response to Birnholz’ complaint, the appellees filed an answer containing a general denial as well as an affirmative defense asserting that at the time this action was filed all of Birnholz’ claims against St…
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Hofer v. Ross, 481 So. 2d 939 (Fla. 2d DCA 1985)…the basis of the statute of limitations. Green v. Bartel, 365 So. 2d 785 (Fla. 3d DCA 1978). See also Daytona Development Corp. v. McFarland, 454 So. 2d 761 (Fla. 2d DCA 1984), petition for review denied, 462 So. 2d 1107 (Fla.1985); Smith v. Hussey, 363 So. 2d 1138 (Fla. 2d DCA 1978). Accordingly, we reverse and remand for reinstatement of the Hofers’ second amended complaint. CAMPBELL and SCHOONOVER, JJ„ concur.…
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Rosen v. Sparber, 369 So. 2d 960 (Fla. 3d DCA 1978)…ether he had a cause of action against appel-lees. This question was one properly for [*962] -the jury to determine and could not be resolved on appellees’ motion for summary judgment. See Edwards v. Ford, 279 So. 2d 851 (Fla.1973); Smith v. Hussey, 363 So. 2d 1138 (Fla. 2d DCA 1978); Steiner v. Ciba-Geigy Corp., 364 So. 2d 47 (Fla. 3d DCA 1978); Pinkerton v. West, 353 So. 2d 102 (Fla. 4th DCA 1977); Schetter v. Jordan, 294 So. 2d 130 (Fla. 4th DCA 1974); and Fla.R.Civ.P. 1.510. Accordingly, based upon the rea…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Edwards v. Ford, 279 So. 2d 851 (Fla. 1973)
- Schetter v. Jordan, 294 So. 2d 130 (Fla. 4th DCA 1974)
- Pinkerton v. West, 353 So. 2d 102 (Fla. 4th DCA 1977)