Drake v. SimonsDrake v. Simons
The sole issue on this appeal concerns an alleged incident of attorney malpractice and the applicable statute of limitations. An amended complaint was filed by Drake on July 27, 1990,1 claiming that Simons and his professional association were negligent in representing her interests in a dissolution action against her former husband.2
Simons, in a successful attempt to dismiss the amended complaint, argued that
In Richards Enterprises, Inc. v. Swofford, 495 So.2d 1210 (Fla. 5th DCA 1986), cause dismissed, 515 So.2d 231 (Fla. 1987) and Adams v. Sommers, 475 So.2d 279 (Fla. 5th DCA 1985), we held that a two-year statute of limitations for legal malpractice did not begin to run until a decision adverse to a client, which was the subject of a malpractice action, had been appealed and a decision rendered with no further action taken.3
The threshold question can be stated as follows: If the lower court‘s ruling, which was adverse to the client, was reversed on appeal, would the client still have a legal cause of action for malpractice? Where the response to this question is in the negative, the statute of limitations begins to run at the time an appellate decision is rendered; otherwise, the applicable statute of limitations would begin when the client knew or should have known of the alleged malpractice. In Graham v. Holler, 499 So.2d 62, 63 (Fla. 5th DCA 1986), we phrased the question somewhat differently as: Whether the collateral litigation, depending on its outcome, could have negated an attorney‘s delinquent act.
In Peat, Marwick, Mitchell & Co. v. Lane, 565 So.2d 1323 (Fla. 1990), the Florida Supreme Court affirmed the Third District finding that a cause of action for professional malpractice did not arise until “the existence of redressable harm has been established.” Furthermore, the Third District had noted that the clients only knew that the professionals “might have been negligent” because if the tax court did not uphold a deficiency, the client would have no cause of action for accounting malpractice:
We find, consistent with the holdings of numerous attorney malpractice cases, that until their tax court action was final, the Lanes did not have an action for malpractice.
In the instant case, a quick review of the claimed negligence reveals that had Drake‘s appeal been decided in her favor regarding the marital property disposition issue, Drake would not have had any “redressable” cause of action as against Simons. Hence, the applicable statute of limitations could only have started to run on November 9, 1989.
Accordingly, we reverse and remand the cause on the authority of Peat, Marwick, Richards and Adams.
REVERSED AND REMANDED.
DAUKSCH and DIAMANTIS, JJ., concur.