Failure of law firm's former client to appeal adverse judgment does not necessarily preclude its ability to maintain legal malpractice action against firm  [Added 5/13/08]

    Lawyer and Law Firm (collectively, "Law Firm") represented Client on various matters.  Client asked Law Firm to represent it in a suit against one of its suppliers.  After Law Firm declined, Client hired other counsel and sued Supplier in federal court.  Supplier pleaded the statute of limitations as a defense.  The trial court ruled that a 4-year limitations period (rather than the 5-year period) applied and that, consequently, the suit was untimely.

    Client then sued Law Firm for legal malpractice.  "The gist of the present malpractice action is that during the consultations leading to [Law Firm]'s declining to represent [Client] in a lawsuit against [Supplier], [Law Firmi] allegedly gave [Client] incorrect dates for the termination of limitations periods; as a result, [Client]'s March 2003 suit against [Supplier] was untimely filed."  Law Firm raised abandonment as a defense, arguing that Client's failure to appeal the adverse judgment in the underlying suit resulted in a waiver of any malpractice claim against Law Firm.  The trial court granted Law Firm's motion, concluding that it had prevailed on its abandonment defense.  Client appealed.

    The Second DCA reversed.  The court disagreed with Law Firm's contention that abandonment had been shown as a result of Client's failure to appeal the adverse judgment.  The court recognized that in Peat, Marwick, Mitchell & Co. v. Lane, 565 So.2d 1323, 1325 (Fla. 1990), the Florida Supreme Court recited that "[a] clear majority of the district courts have expressly held that a cause of action for legal malpractice does not accrue until the underlying legal proceeding has been completed on appellate review because, until that time, one cannot determine if there was any actionable error by the attorney."  Nevertheless, the court stated:  "If the principle of "complet[ion] on appellate review," id., were required to be followed literally in all cases, then there would be no question that the trial court's granting of summary judgment to [Law Firm] was correct, given that [Client] did not appeal its loss in the underlying lawsuit."  The court went on to state that this "generalization has been tempered," citing Segall v. Segall, 632 So. 2d 76, 78 (Fla. 3d DCA 1993), Hunzinger Constr. Corp. v. Quarles & Brady Gen. P'ship, 735 So. 2d 589, 595 (Fla. 4th DCA 1999), and Eastman v. Flor-Ohio, Ltd., 744 So. 2d 499, 504 (Fla. 5th DCA 1999).  As a result, the court viewed the operative principle as whether Law Firm "could demonstrate under the summary judgment standard that an appeal by [Client] of the federal district court's adverse judgment would in all likelihood have resulted in a reversal, with a ruling by the federal appeals court that the statute of limitations on an action for [Supplier]'s alleged breach of the [Client-Supplier] agreements was five years."

    In the instant case, a number of Client-Supplier purchase agreements were involved.  As to some of those agreements, Client's suit would have been untimely even under a 5-year statute of limitations.  Accordingly, Law Firm had not demonstrated abandonment regarding those claims.

    As to the remaining 3 agreements, the court declined to address the "underlying legal issue" of what the proper statute of limitations was on those agreements  (The court noted that it was hindered because it did not have the full record before it, and also that the legal argument by Law Firm in favor of the 5-year statute presented a question of first impression.)  The court stated:  "[W]e are forced to conclude that [Law Firm] failed to demonstrate that they were entitled to summary judgment as a matter of law on their theory of abandonment, that is, that an appeal by [Client] in the underlying lawsuit would in all likelihood have ended in [Client]'s favor."  Technical Packaging, Inc. v. Hanchett, ___ So.2d ___, 33 Fla. L. Weekly D1270 (Fla. 2d DCA, No. 2D06-3851, 5/9/2008), 2008 WL 1986930.

Statute of limitations on litigation malpractice claim does not begin to run until postjudgment attorney's fees motions are resolved, per Second DCA  [Added 2/8/08]

    Client hired Law Firm in connection with patent matters.  Represented by Law Firm, Client sued Defendant for alleged patent infringement.  Law Firm allegedly engaged in misconduct during the litigation.  Defendant moved for an award of attorney's fees against Client.  The judgment in Defendant's favor in the underlying patent infringement action became final on September 16, 2002, when the time for filing an appeal expired.  Thereafter Client and Defendant negotiated a settlement of the attorney's fees claim.  On October 10, 2002, Client and Defendant filed a stipulation to dismiss the action with prejudice.

    Client sued Law Firm for legal malpractice on October 5, 2004, which was less than 2 years after Law Firm filed the stipulation to dismiss the patent infringement action but more than 2 years after the underlying judgment became final.  The trial court granted Law Firm's motion for summary judgment, relying on Silvestrone v. Edell, 721 So.2d 1173 (Fla. 1998), to hold that the statute of limitations on Client's malpractice claim began to run when the judgment on the merits of the patent infringement action became final and that, accordingly, the claim was time-barred.  Client appealed.

    The Second DCA reversed.  The appeals court agreed that Silvestrone was controlling, but concluded that the trial court had applied it incorrectly.  The court noted that the facts of the instant case were "not contemplated" by Silvestrone.  There, the litigation was concluded when the final judgment became final; here, however, because of the attorney's fee claim "the litigation was not concluded until the parties filed the stipulation to dismiss the underlying action with prejudice."  The court pointed to 3 reasons supporting its application of Silvestrone. 

    First, "the client does not incur damages until the conclusion of the related judicial proceedings when the amount of attorneys' fees has been finally established.  Until the case is fully resolved, there is a chance that the appeals process could result in a reversal of the original decision that established an injury."  Second, "parties in such actions would be forced to argue inconsistent positions if they were required to file the malpractice action before resolution of attorneys' fees in the underlying action."  Third, "forcing an aggrieved party to file a legal malpractice action before the underlying litigation is resolved would also create a conflict of interest that would undoubtedly require counsel to withdraw from representation in the underlying action.  This would place the aggrieved party in the untenable position of having to hire new counsel who was unfamiliar with the case to continue the litigation or pursue negotiations at the last hour."

    The court summarized:  "[W]e conclude that the statute of limitations did not begin to run in this case until October 10, 2002, the date on which the parties filed the stipulation to dismiss the underlying action with prejudice.  Thus, the trial court erroneously interpreted Silvestrone to require a determination that the statute of limitations began to run when the judgment on the merits of the patent infringement action became final."  The court then certified conflict with the Fourth DCA's decision in Integrated Broadcast Services, Inc. v. Mitchel, 931 So.2d 1073 (Fla. 4th DCA 2006).  TSE Industries, Inc. v. Larson & Larson, P.A., ___ So.2d ___, 33 Fla. L. Weekly D404 (Fla. 2d DCA, No. 2D07-1872, 2/1/2008), 2008 WL 268914, review granted by Larson & Larson, P.A. v. TSE Industries, Inc., 2008 WL 1931423 (Fla. Apr 24, 2008).

Trial court incorrectly applied statute of limitations in dismissing legal malpractice suit  [Added 9/28/07]

    A trial court dismissed Plaintiffs' legal malpractice action on the ground that the action was barred by the statute of limitations, Fla.Stat. sec. 95.11(4)(a).  The court concluded that the limitations period commenced when summary judgment was entered in the underlying case.  On appeal, the First DCA reversed and remanded.  "[T]he 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."  Reeves v. Barrett, 964 So.2d 869 (Fla. 1st DCA 2007).

Florida Supreme Court reaffirms general rule that legal malpractice claims NOT assignable.  [Added 7/6/07]  --  Law Office of David J. Stern, P.A. v. Security National Servicing Corp., 969 So.2d 962 (Fla. 2007).

Lawyer who breaches client confidentiality AFTER attorney-client relationship ended may be liable to client for malpractice, but former client must allege what confidence was breached.  [Added 6/25/07]  --  Elkind v. Bennett, 958 So.2d 1088 (Fla. 4th DCA 2007).

Trial court erred in calculating limitation period for legal malpractice claim from date of case's final judgment rather than from date of subsequent sanctions order.  [Added 7/25/06]  --  Integrated Broadcast Services, Inc. v. Mitchel, 931 So.2d 1073 (Fla. 4th DCA 2006).

Petition for writ of prohibition granted because trial court lacked subject matter jurisdiction to try legal malpractice case against union-retained lawyer.  [Added 6/15/06]  --  Florida Education Ass'n v. Wojcicki, 930 So.2d 812 (Fla. 3d DCA 2006).

Settlement agreement provision requiring party to pursue legal malpractice against against its former lawyer for benefit of adverse party void as tantamount to assignment of claim.  [Added 5/16/06]  --   Michael E. Greene, P.A. v. Leasing Associates, Inc., 935 So.2d 21 (Fla. 4th DCA 2006).

Section 57.105 fees awarded against indigents who sued their former lawyer for malpractice before statute of limitations on underlying claim had run.  [Added 5/16/06]  --  Morales v. Marques, 931 So.2d 169 (Fla. 5th DCA 2006).

Trial court erred in dismissing legal malpractice claim for alleged fraud on the court in underlying representation.   [Added 3/21/06]  --  Cherubino v. Fenstersheib and Fox, P.A., 925 So.2d 1066 (Fla. 4th DCA 2006).

Extrinsic evidence of testator's intent may be admissible in legal malpractice case brought by personal representative of testator's estate.  [Added 3/3/06]  --  Gallo v. Brady, 925 So.2d 363 (Fla. 4th DCA 2006).

FOURTH DCA EXPANDS EXCEPTION TO GENERAL RULE THAT LEGAL MALPRACTICE CLAIMS ARE NOT ASSIGNABLE  [12/2/05]  --  Security National Servicing Corp. v. Law Office of David J. Stern, P.A., 916 So.2d 934 (Fla. 4th DCA 2005).

PLAINTIFF IN LEGAL MALPRACTICE CLAIM AGAINST CRIMINAL DEFENSE LAWYER MUST SHOW "EXONERATION" OF UNDERLYING CRIME  [Added 6/20/05]  --  Cira v. Dillinger, 903 So.2d 367 (Fla. 2d DCA 2005).

FOURTH DCA MISSES OPPORTUNITY TO RULE ON QUESTION OF EXPERT TESTIMONY IN LEGAL MALPRACTICE CONCERNING "THE LAW"  [Added 2/23/05]  --  Robinson v. Kates, 895 So.2d 1156 (Fla. 4th DCA 2005).  NOTE:  For a detailed look at the use of expert testimony in lawyer disciplinary matters, see a new article by Tim Chinaris titled "Even Judges Don't Know Everything:  A Call for a Presumption of Admissibility for Expert Witness Testimony in Lawyer Disciplinary Proceedings," 36 St. Mary's Law Journal 825 (2005).

CORPORATION'S LAW FIRM OWED DUTIES TO ENTITY RATHER THAN INDIVIDUAL SHAREHOLDERS; ADDITIONALLY, INDIVIDUALS WAIVED ALL CONFLICTS  [Added 2/7/05]  --  Rudolf v. Gray, Harris & Robinson, P.A., 901 So.2d 148 (Fla. 5th DCA 2005).

LAWYER'S INQUIRY TO CLIENT ABOUT POSSIBLE PREPARATION OF DOCUMENT DID NOT CREATE LEGAL DUTY TO PREPARE DOCUMENT; SUMMARY JUDGMENT IN MALPRACTICE CASE AFFIRMED  [Added 9/1/04]  --  Lane v. Cold, 882 So.2d 436 (Fla. 1st DCA 2004).

DEFENDANT INSURED’S ASSIGNMENT TO PLAINTIFF OF PROCEEDS OF INSURED'S MALPRACTICE ACTION AGAINST HIS LAWYER IN EXCHANGE FOR NON-EXECUTION OF EXCESS JUDGMENT IS VOID AS TANTAMOUNT TO ASSIGNMENT OF MALPRACTICE CLAIM  [Added 12/10/03]  --  Weiss v. Leatherberry, 863 So.2d 368 (Fla. 1^st DCA 2003).