Recent Judgments/Opinions: Legal Malpractice Statute Of Limitations


(posted 7/22/13)



Diran V. Seropian and Kenneth S. Pollock recently won a Fifth District Court of Appeal per curium affirmance of the summary judgment Shendell & Pollock, P.L. had previously obtained on behalf of its clients, the attorney and law firm.  The appellate court ruled that this alleged litigation legal malpractice action arose out of a lawsuit that was filed by a minority shareholder against an automobile distributor, rejecting plaintiff’s argument that his claim was one of transactional legal malpractice.


The Plaintiff automobile dealer settled the underlying litigation against the distributor in January, 2003, and it was dismissed for lack of prosecution on April 4, 2005. After settlement, the distributor determined that it had overpaid the dealer, and initiated a subsequent litigation against the dealer to recover the overpayment. The dealer filed for bankruptcy protection after the distributor obtained a multi-hundred thousand dollar judgment against him. The distributor lost its fight to prevent the discharge of its money judgment in the adversary proceeding.


In December of 2008, the dealer filed the legal malpractice action asserting his attorneys had a conflict of interest during their representation of the dealer in the underlying litigation. The dealer testified that he was aware of the alleged conflict of interest within days of the settlement of the underlying litigation in January of 2003.


Whether calculated from the Plaintiff’s awareness of the alleged conflict of interest in January 2003, or from the later date of two years after the dismissal of the underlying litigation, the dealer’s legal malpractice action was time barred by the statute of limitations.


In affirming summary judgment, the Fifth District Court of Appeals rejected the dealer’s argument that the settlement agreement in the underlying litigation was a separate transaction, extending the limitations period to the conclusion of the subsequent litigation and Bankruptcy litigation.



Practice Tip:


The statute of limitations in a litigation legal malpractice case accrues at the time of the conclusion of the underlying litigation. Larson & Larson, P.A. v. TSE Indus., Inc., 22 So. 3d 36 (Fla. 2009). Conversely, the limitations period for transactional legal malpractice based upon actions of client's attorney in connection with prior transaction, accrues at the conclusion of subsequent litigation between client and third party. Perez-Abreu, Zamora & DeLa Fe, P.A. v. Taracido, 790 So.2d 1051 (Fla. 2001).


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