McLeod v. Bankier
63 So. 3d 858
Fla. Dist. Ct. App.2011Background
- In 1998 McLeod hired Tew to pursue a claim against Fidelity for a margin-call loss; the settlement included a general release in Fidelity’s favor.
- McLeod believed funds would be restored to pre-loss status, but they were not; Tew ceased representation in March 2000.
- McLeod hired Elk Bankier in December 2002 to file a NASD arbitration against Fidelity; no malpractice claim against Tew was pursued at that time.
- Nov 2003 NASD arbitration ruled for Fidelity; Elk Bankier suggested a potential legal-malpractice claim against Tew and referred McLeod to a malpractice specialist who advised no valid claim.
- Elk Bankier stopped representing McLeod in February 2004; in 2004 McLeod engaged Isenberg who urged a malpractice claim, but McLeod took no action until January 2008 when he sued Elk Bankier.
- McLeod alleged Elk Bankier negligently allowed the two-year limitations period to expire on the claim against Tew; Elk Bankier argued accrual began in 2000 or by the 2003 NASD decision, yielding deadlines in 2002 or 2005 respectively.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When does the legal-malpractice action accrue? | McLeod contends accrual began when he discovered the injury and potential claim against Tew, or when damages occurred. | Elk Bankier argues accrual began no later than March 2000 or November 2003, with a deadline in 2002 or 2005. | Accrual tied to the latest allowable triggering date; summary judgment affirmed. |
| Is the two-year statute of limitations starting point dispositive here? | McLeod asserts a continuing-tort-like discovery or discovery of the negligent act. | Elk Bankier maintains the two-year limit began in 2000 or 2003, expiring before 2008. | Yes; the limitations period expired before McLeod filed suit, baring the claim. |
| Did McLeod's late filing against Elk Bankier relate to an actionable malpractice claim against Tew or to Elk Bankier's handling alone? | McLeod argues Elk Bankier failed to initiate timely proceedings against Tew. | Elk Bankier contends the claim against it is barred and any claim against Tew is time-barred. | The court upheld dismissal as time-barred, applying the accrual framework. |
Key Cases Cited
- Peat, Marwick, Mitchell & Co. v. Lane, 565 So.2d 1323 (Fla. 1990) (limitations begin when the cause is discovered or should have been discovered with due diligence)
- Law Office of David J. Stern, P.A. v. Sec. Natl. Servicing Corp., 969 So.2d 962 (Fla. 2007) (three elements of a legal-malpractice claim)
- Kates v. Robinson, 786 So.2d 61 (Fla. 4th DCA 2001) (elements and accrual concepts for malpractice claims)
- Glucksman v. Persol N. Am., Inc., 813 So.2d 122 (Fla. 4th DCA 2002) (recognizes that injury or negligent act knowledge triggers accrual)
- Furtado v. Yun Chung Law, 51 So.3d 1269 (Fla. 4th DCA 2011) (de novo standard on summary-judgment review in SOL issues)
- Cohen v. Arvin, 878 So.2d 403 (Fla. 4th DCA 2004) (summary-judgment standard and SOL application)