DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
YULIA V. FOREST,
Appellant,
v.
L. LISA BATTS and STUART LAW GROUP, P.A.,
f/k/a L. LISA BATTS, P.A.,
Appellees.
No. 4D16-4066
[October 25, 2017]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Martin County; Elizabeth A. Metzger, Judge; L.T. Case No.
432015CA000982AAXMX.
James Prescott Curry of Curry, PL, Jupiter, for appellant.
L. Lisa Batts of Stuart Law Group, P.A., Stuart, for appellees.
WARNER, J.
The trial court entered summary final judgment in a legal malpractice
action, concluding that the action was barred by the statute of limitations.
Appellant challenges that ruling, arguing that the time for filing a cause of
action for legal malpractice does not begin to run until the underlying legal
proceeding has been completed through appellate review and judicial labor
comes to an end. We agree with appellant that her legal malpractice action
was timely filed within two years of the entry of the amended final
judgment, which was entered after reversal of the final judgment on
appeal. We therefore reverse.
The appellee Lisa Batts, and others, represented appellant in her
dissolution of marriage action against her former husband. During those
proceedings, the court bifurcated the proceedings, granted the dissolution
of the marriage, and awarded the marital home to the husband on the
ground that it was a non-marital asset, as the court found that the wife
made no special claim against that asset. The court reserved jurisdiction
to enter a final judgment after resolving the remaining issues. The court
ultimately entered a final judgment on all issues on January 24, 2011. In
it, the court incorporated the prior order, determined the equitable
distribution of assets and liabilities including the husband’s IRA, and
determined that no alimony would be awarded, as the husband did not
have the ability to pay. The wife appealed that judgment, and this court
affirmed in part and reversed in part. Forest-Kohl v. Kohl, 126 So. 3d 1094
(Fla. 4th DCA 2012). We remanded for the court to make necessary
findings regarding credit card debt and school loans but affirmed as to all
other arguments. The trial court complied with the mandate by entering
an amended final judgment on August 13, 2013. The appellant filed an
appeal of this amended final judgment, but she voluntarily dismissed her
appeal on October 4, 2013.
In October 2013 the former husband sought to enforce the Second
Amended Final Judgment. The former wife contends that his actions
forced her to file bankruptcy in February 2014. Within the bankruptcy
case the former wife first initiated her legal malpractice action in July 2014
through an adversary proceeding against appellee. It was later filed in
state court on May 2015 pursuant to 28 U.S.C. Section 1367(d), after the
dismissal of the bankruptcy proceeding and within two years of the
rendition of the amended final judgment.
Appellee Batts moved to dismiss the complaint, claiming that the
statute of limitations had run on the legal malpractice claim against her.
She then moved for summary judgment, which the court ultimately
granted. The court determined that the time for filing of a legal malpractice
action ran from the time of the final judgment entered on January 24,
2011 (or thirty days thereafter). The court discounted the appeal of that
final judgment, because the issues on appeal did not concern the matters
upon which appellant’s legal malpractice claim was based, namely claims
for credits against non-marital assets which appellee should have pursued
as well as the husband’s income to support an alimony award. It also
discounted the amended final judgment entered after remand, because the
only terms that changed in the amended final judgment were the
disposition of marital liabilities, not the equitable distribution of properties
or alimony. Because the appellant knew that she had not received any
interest in the non-marital properties or an award of alimony at the time
of the 2011 final judgment, the court reasoned that the time for filing a
legal malpractice claim began to run. The court entered summary final
judgment, prompting this appeal.
The standard of review of an order ruling on a motion for summary
judgment which poses a pure question of law is de novo. State v.
Presidential Women’s Ctr., 937 So. 2d 114, 116 (Fla. 2006); Major League
Baseball v. Morsani, 790 So. 2d 1071, 1074 (Fla. 2001).
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Section 95.11(4)(a), Florida Statutes (2015), provides that an action for
legal malpractice “shall run from the time the cause of action is discovered
or should have been discovered with due diligence.” Our supreme court
has interpreted this as meaning the time when finality occurs in the
underlying cause of action in which any malpractice is alleged to have
occurred:
[W]hen a malpractice action is predicated on errors or
omissions committed in the course of litigation, and that
litigation proceeds to judgment, the statute of limitations does
not commence to run until the litigation is concluded by final
judgment. To be specific, we hold that the statute of
limitations does not commence to run until the final judgment
becomes final. [FN 2 - 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.]
….
We therefore hold, in those cases that proceed to final
judgment, the two-year statute of limitations for litigation-
related malpractice under section 95.11(4)(a), Florida Statutes
(1997), begins to run when final judgment becomes final. This
bright-line rule will provide certainty and reduce litigation over
when the statute starts to run. Without such a rule, the
courts would be required to make a factual determination on
a case by case basis as to when all the information necessary
to establish the enforceable right was discovered or should
have been discovered.
Silvestrone v. Edell, 721 So. 2d 1173, 1175-76 (Fla. 1998) (emphasis
supplied). In Silvestrone, a jury failed to award Silvestrone and his co-
plaintiff significant damages in an antitrust case. Because of post-trial
motions and attorney’s fees issues, final judgment was not rendered for
two years resolving all issues, which was not appealed. Silvestrone then
filed a legal malpractice action against his attorneys. The trial court found
that the statute of limitations ran from the date of the jury verdict, because
it was then that the plaintiffs knew of the inadequate damage award and
any legal malpractice. While the appellate court agreed, the Florida
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Supreme Court held that the cause of action ran from the rendition of the
final judgment.
Similarly, in Peat, Marwick, Mitchell & Co. v. Lane, 565 So. 2d 1323,
1325 (Fla. 1990), an accountant malpractice case, the court noted that
attorney malpractices did not accrue until the conclusion of appellate
proceedings:
This situation is not unlike attorney malpractice actions. 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. [Emphasis added.]
The court discussed the finality requirement in Larson & Larson, P.A.
v. TSE Indus., Inc., 22 So. 3d 36 (Fla. 2009). There, a final judgment was
rendered against TSE Industries in a patent infringement case, which
judgment was not appealed. The court later entered a judgment awarding
attorney’s fees. TSE filed a legal malpractice claim against its attorney,
Larson, more than two years after the final judgment but less than two
years after the judgment on attorney’s fees. Larson moved for summary
judgment on statute of limitations grounds, and the court entered
judgment in favor of Larson, finding that the malpractice claim was
untimely filed from the final judgment. The attorney’s fees judgment was
a separate ruling and could not alter the final judgment. The second
district reversed the trial court, concluding that the legal malpractice
action did not accrue until the judgment for attorney’s fees was entered,
because that ended judicial labor on the entire underlying proceeding.
The court reviewed Silvestrone and reaffirmed its commitment to a
bright-line rule to determine when a cause of action for legal malpractice
accrues.
The crux of Silvestrone’s reasoning is that it cannot be known
with sufficient certainty that the client has suffered any loss
caused by the lawyer’s negligence until the finality of a
judgment adverse to the client. A favorable result for the client
in the lawsuit - which could be the result of appellate
proceedings - would, of course, mean that the client had
suffered no loss. Silvestrone’s rule thus merely establishes a
bright-line for establishing when the client has suffered some
loss as a consequence of the attorney’s negligence. It does not
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require that there be a determination of the full extent of all
losses suffered by the client due to the lawyer’s negligence.
Id. at 42 (emphasis in original). It also reaffirmed its commitment in Peat
Marwick 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. To require a cause of action to accrue prior to the
exhaustion of appellate review could result in a situation where a
malpractice claim would have to be brought while an appeal was pending,
with the potential that the client may have to take two inconsistent
positions in the two causes of action.
Furthermore, addressing the concern that compelling a malpractice
action to be filed prior to the conclusion of the appeal would detrimentally
impact the attorney-client relationship, the court concluded that its rule
requiring finality upon appeal prevented any damage to an existing
relationship.
As a practical matter, by holding that redressable harm is not
established for purposes of a legal malpractice claim “until the
final judgment becomes final,” Silvestrone, 721 So.2d at 1175,
we substantially addressed the basic concern regarding
undue disruption of the attorney-client relationship
underlying the continuing representation doctrine. Because
finality requires the conclusion of appellate review, if any,
there is no requirement that an ongoing attorney-client
relationship be disrupted until two years after the appellate
process has run its course.
Id. at 45.
The supreme court’s consistent reliance on a bright-line rule that a
cause of action for legal malpractice in litigation does not accrue until the
underlying legal proceedings are complete through appellate review
compels us to reverse the trial court’s summary judgment. The final
judgment of January 24, 2011, was appealed and reversed in part,
requiring the issuance of an amended final judgment which was also
appealed but voluntary dismissed in October 2013. That is the date upon
which the final judgment was truly final.
Contrary to the trial court’s conclusion, nothing in the supreme court
opinions suggests that a judgment may be final for purposes of the
running of the statute of limitations for a malpractice action as to some
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issues but not others. To parse an appeal to determine whether an issue
relating to the later claim of malpractice was raised in the brief would invite
the very case by case determination of the accrual date for a legal
malpractice that the supreme court rejected in Silvestrone. It could also
result in the disruption of the attorney-client relationship during an
appeal, which problem the bright-line rule of Silvestrone cured. See
Larson.
The legal malpractice action was timely filed from the time the judgment
became fully final. Therefore, the court erred in entering summary
judgment on the statute of limitations.
Reversed and remanded for reinstatement of the complaint and for
further proceedings.
DAMOORGIAN and LEVINE, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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