496 So. 2d 239 | Fla. Dist. Ct. App. | 1986
Bismark DIAZ and Bis D. Corp., Appellants,
v.
William J. PIQUETTE, Appellee.
District Court of Appeal of Florida, Third District.
*240 Taylor, Brion, Buker & Greene and Arnaldo Velez, Miami, for appellants.
Fowler, White, Burnett, Hurley, Banick & Strickroot and John R. Kelso, Miami, for appellee.
Before SCHWARTZ, C.J., and HUBBART and JORGENSON, JJ.
SCHWARTZ, Chief Judge.
We reverse the summary judgment entered below on limitations grounds upon the determination that the period for commencing an action on appellants' claim for alleged legal malpractice resulting in the loss of their case at trial did not begin to run until the adverse judgment was affirmed on appeal.[1] In so ruling, we follow the square recent holding in Richards Enterprises v. Swofford, 495 So. 2d 1210 (Fla. 5th DCA 1986); strong indications in other Florida decisions that this is the rule, see Chapman v. Garcia, 463 So. 2d 528 (Fla. 3d DCA 1985); Birnholz v. Blake, 399 So. 2d 375 (Fla. 3d DCA 1981); and the better reasoned authority in other jurisdictions. Bowman v. Abramson, 545 F. Supp. 227 (E.D.Pa. 1982); Amfac Distribution Corp. v. Miller, 138 Ariz. 152, 673 P.2d 792 (1983); see also Northwestern Nat'l Ins. Co. v. Osborne, 573 F. Supp. 1045 (E.D.Ky. 1983). Most important, since it is plain that no claim would even have existed if the temporary results of the attorney's conduct had been reversed on appeal, this decision is in accordance with the salutary concomitant principles that premature, possibly useless, litigation should be discouraged and that no cause of action should therefore be deemed to have accrued until the existence of redressable harm has been established. Birnholz v. Blake, 399 So. 2d 375; Moore v. Morris, 429 So. 2d 1209 (Fla. 3d DCA 1983) (Schwartz, C.J., dissenting), rev'd, 475 So. 2d 666 (Fla. 1985).
Since, under this holding, the instant action was timely commenced, the judgment is reversed and the cause remanded for further consistent proceedings.
NOTES
[1] See Diaz v. Rodriguez, 384 So. 2d 906 (Fla. 3d DCA 1980).
