Abbott v. Friedsam, 95-02454
| Decision Date | 25 October 1996 |
| Docket Number | No. 95-02454,95-02454 |
| Citation | 682 So.2d 597 |
| Parties | 21 Fla. L. Weekly D2304 Lillian R. ABBOTT; Homer L. Ache; Betty M. Adkins; Elaine Altenburger; William Alvarez; Fay Argy; Donald W. Arthur; Robert E. Barto; Stanley Bartosik; Alex Basarab; Dale Bayman; Olga C. Bead; Charles W. Becker; Robert H. Beebe; William W. Bell; Isabelle Berg; Walter Berg; Leslie A. Berger; William D. Bird, Sr.; Marian W. Booth; Viola Boughton; Joseph S. Boyer; Vincent W. Boyle; Rose M. Bransom; Howard T. Brennan; Calvin Brown; Mary Ruth Brown; Roena E. Brown; Evelyn H. Bull; Florence T. Bunch-Rhoten; Guy C. Burns; Marshell K. Byrd, Sr.; Rosa M. Calvetto; Dominic V. Capone; Bernard T. Casper; Dennis Chamberlain; Pearl A. Charlton; H.E. Clark; Sidney W. Clark; Mary F. Cleaveland; Ann Colvin; Carpet Concepts, Inc.; William D. Cook; Gene W. Coon; Alice N. Cope; Harry Cope; Charles Corman; J.V. Cox; Ida Cullen; Merten Davenport; Dorothy M. Davis; Frederick H. Davis; Homer W. Davis; Florence Dawkins; Marvin Dawkins; Harry De Baene; Earl E. De Boy; Lucile S. De Mott; Walter C. Dean; Raymond E. Dennis; J. Desmond; Nick J. Drabick; Emmett A. English; Arnold Espeland; Richard Fenley; First Baptist Church, Gibsonton, c/o Pastor Clemons; Ruth Fish; Marjorie W. Flournoy-Stevenson; Columbus Franklin, Jr.; Lyle Frazier Estate; Arthur R. Furst; Delores H. Gacesa Young; Robert Gaffney; Marjane Gaston; Inez Gell; Glenn W. Gergen; Margaret F. Gerrior; Mary Gibson; Henry M. Gilliam; Kenneth Gipe; Van Gore; Mary Grantham Parsons; Lawrence Groom; Mrs. Charles Gutermuth; Lawrence C. Haag; Leroy Halbrook; Clark Hall; Robert Hancock; Edwin Hansen; Nancy Hansen; Claire Harbot; Fred A. Hardy; David Hargrave; Dorothy Harlow; Lois Harris; Esther Hauck; Louis Hecker; John Henshaw; Pauline Hicks; Todd Hicks, Sr.; Mailene Hippensteel; Louis Hoffman; George Hopper; Frank Hotfelder; Marian Houghkerk; Bernice Howard; Roy Howell; Violet M. Hoyt; Margaret Hudgins; Alfred Hyde; Maley Irelan; Darlene Janis; Samuel Jarkow; Earl M. Johnson; Arthur Kain; Edward Kaminski; Mildred Kell |
| Court | Florida District Court of Appeals |
Chester L. Skipper and Jesse L. Skipper of the Skipper Law Firm, and Clayton T. Joy, St. Petersburg, for Appellants.
Stevan T. Northcutt of Levine, Hirsch, Segall & Northcutt, P.A., Tampa, for Appellee.
The appellants, plaintiffs below, challenge the trial court's entry of a final summary judgment for the appellee, defendant below, Lesley J. Friedsam, in a suit alleging legal malpractice. We find Friedsam did not conclusively establish that there was no genuine issue of material fact related to the claims alleged against her. Accordingly, we reverse.
In 1994 Lillian Abbott and 233 other plaintiffs filed a malpractice action against their former attorneys, Arnold Levine and the Levine law firm, whom they had retained in 1986 to prosecute a securities fraud suit. The plaintiffs alleged they were the firm's clients until early 1994 and should have received a greater award of damages but for their attorneys negligently failing to obtain substitute service of process on six defendants and failing to prosecute the lawsuit against five other defendants, most or all of whom had defaulted. In an amended complaint filed in January 1995, the plaintiffs joined Friedsam as an additional defendant because she was formerly associated with the Levine firm. The plaintiffs alleged in the amended complaint that Friedsam had handled the day-to-day conduct of their securities litigation before she left the firm in 1988.
Before answering the amended complaint Friedsam moved for summary judgment on statute of limitations grounds. In support of her motion she filed her affidavit which stated essentially that she left the employ of the Levine firm in March 1988 and had had no contact with the plaintiffs or their securities lawsuit since her departure.
Of the 234 plaintiffs only two, James Hansen and G.V. Wingate, who are not appellants here, filed affidavits opposing Friedsam's motion. In their affidavits Hansen and Wingate stated they were the class representatives in the securities litigation handled by the Levine firm and that, after class certification was denied, they continued to serve as representatives of all 234 plaintiffs and were so recognized by the Levine firm. They further stated that all significant communications between the Levine firm and the plaintiffs passed through them as intermediaries. Hansen and Wingate also claimed that they discharged the Levine firm by letter on March 24, 1994, 1 from representing the plaintiffs in the proceedings which had by now progressed to a claim pending on the Securities Guaranty Fund. The Levine firm refused to recognize Hansen's and Wingate's authority to discharge them and declined to withdraw from representation. After soliciting and receiving duly executed powers of attorney from 210 other plaintiffs, Hansen and Wingate again attempted to discharge the Levine firm by letter on May 26, 1994. The Levine firm responded by letter that it refused to withdraw but would henceforth take no action regarding the proceedings; the Levine firm also placed a charging lien on the Securities Guaranty Fund award before it was finalized in April 1995. The Hansen and Wingate affidavits were accompanied by all supporting documents to which they had referred. No competing affidavits contested Hansen's and Wingate's statements. The trial court granted Friedsam's motion in part and entered final summary judgment in her favor and against all plaintiffs except Hansen and Wingate.
The appellants contend the trial court erred in ordering summary judgment because Friedsam's affidavit simply stated that she had no contact with the plaintiffs or the securities litigation since March 1988. Thus, the appellants argue, Friedsam failed to conclusively show that the two-year statute of limitations under section 95.11(4)(a), Florida Statutes (1993), had run after the plaintiffs discovered or should have discovered their cause of action for professional malpractice. See Green v. Bartel, 365 So.2d 785 (Fla. 3d DCA 1978). The appellants claim that the two affidavits,...
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