Adams v. Sommers
| Decision Date | 12 September 1985 |
| Docket Number | No. 84-1543,84-1543 |
| Citation | 475 So.2d 279,10 Fla. L. Weekly 2123 |
| Parties | 10 Fla. L. Weekly 2123 Lois ADAMS, Appellant, v. Bernard SOMMERS, Appellee. |
| Court | Florida District Court of Appeals |
Walter A. Ketcham, Jr., of Walker, Buckmaster, Miller & Ketcham, Orlando, for appellant.
Walton B. Hallowes, Jr., of Wells, Gattis, Hallowes & Carpenter, P.A., Orlando, for appellee.
Lois Adams appeals from a final summary judgment in favor of Bernard Sommers, holding that her action for legal malpractice was barred by the two-year statute of limitations. 1
In 1977, Lois Adams retained attorney Bernard Sommers for the purpose of planning her estate and establishing a trust for her children. According to Adams, Sommers drafted the trust agreement and advised her to execute a mortgage on her home in the amount of $85,000 and place the mortgage into the trust. Adams claims that Sommers also prepared a satisfaction of mortgage in blank and a cancelled note for her to use at any time to cancel the mortgage.
In 1978, Adams and her former husband instituted divorce proceedings. During this time, a guardian ad litem was appointed for her children. In February of 1979, Adams completed the satisfaction of mortgage and filed it in the public records where the property was located. The guardian ad litem then petitioned Judge Salfi in the dissolution proceedings to declare the satisfaction invalid and to strike it from the public records. On January 15, 1980, Judge Salfi entered an order determining that the mortgage was valid. 2
On September 23, 1983, Adams filed suit against Sommers for legal malpractice. In her complaint, Adams alleged that Sommers told her that the mortgage was a mere paper transaction and because no consideration had been given, the mortgage could be satisfied at any time at Adams' option. Adams further alleged that the guardian ad litem had petitioned Judge Salfi in the dissolution case to declare the satisfaction to be invalid due to a lack of consideration, that Sommers refused to provide assistance in this matter, and that she had spent considerable sums of money to retain counsel to controvert the petition of the guardian ad litem.
Sommers answered the complaint and raised as an affirmative defense that the matter was precluded by the statute of limitations. Sommers contended that the statute began to run on January 15, 1980, when the order was entered by Judge Salfi determining that the mortgage was valid.
In May, 1984, Adams' deposition was taken. Her testimony here differed somewhat from the allegations in the complaint. Adams testified that she initially filed a copy of the satisfaction of mortgage and that it was her understanding that the satisfaction was set aside by Judge Salfi on the basis that it was a "phony" or "bogus" satisfaction. Adams later found the original satisfaction of mortgage which had been drafted by Sommers and filed it in the public records. According to Adams, this satisfaction of mortgage was later set aside by Judge Mize (apparently in the same dissolution proceeding) because of a lack of consideration. Finally, Adams claimed that Sommers told her that the circuit court had no jurisdiction over the trust and that she first became aware that the mortgage was not proper after her appeal was turned down.
Sommers later moved for summary judgment, claiming that there was no genuine issue of material fact and that the action was barred by the applicable statute of limitations. The trial court granted Sommers' motion holding that Adams' cause of action accrued on January 15, 1980, when Judge Salfi determined that the mortgage was valid and hence was barred by the two-year statute of limitations applicable to legal malpractice actions.
We disagree with the trial court and find that there was a genuine issue of material fact as to when Adams' cause of action for legal malpractice arose. Section 95.11(4)(a) provides that the period of limitations shall run from the time the cause of action is discovered or should have been discovered with the exercise of due diligence. This provision has been uniformly construed to mean that the event...
To continue reading
Request your trial
-
Ranier v. Stuart and Freida, P.C., 83766
...Enterprises, Inc. v. Swofford, 495 So.2d 1210 (Fla. 5th DCA 1986); Diaz v. Piquette, 496 So.2d 239 (Fla. 3d DCA 1986); Adams v. Sommers, 475 So.2d 279 (Fla. 5th DCA 1985); Birnholz v. Blake, 399 So.2d 375 (Fla. 3d DCA 1981).5 496 So.2d at 240.6 See Magnuson v. Lake, 78 Or.App. 620, 717 P.2d......
-
Eastman v. Flor-Ohio, Ltd.
...Richards Enters., Inc. v. Swofford, 495 So.2d 1210 (Fla. 5th DCA 1986), cause dismissed, 515 So.2d 231 (Fla. 1987); Adams v. Sommers, 475 So.2d 279 (Fla. 5th DCA 1985); Chapman v. Garcia, 463 So.2d 528 (Fla. 3d DCA 1985); Birnholz v. Blake, 399 So.2d 375 (Fla. 3d DCA 3. Although the Peat, M......
-
Peat, Marwick, Mitchell & Co. v. Lane
... ... v. Swofford, 495 So.2d 1210 (Fla. 5th DCA 1986), cause dismissed, 515 So.2d 231 (Fla.1987); Adams v. Sommers, ... 475 So.2d 279 (Fla. 5th DCA 1985); Chapman v. Garcia, 463 So.2d 528 (Fla. 3d DCA 1985); Birnholz v. Blake, 399 So.2d 375 (Fla. 3d ... ...
-
Eastman v. Flor-Ohio, Ltd.
...Richards Enters., Inc. v. Swofford, 495 So.2d 1210 (Fla. 5th DCA 1986), cause dismissed, 515 So.2d 231 (Fla.1987); Adams v. Sommers, 475 So.2d 279 (Fla. 5th DCA 1985); Chapman v. Garcia, 463 So.2d 528 (Fla. 3d DCA 1985); Birnholz v. Blake, 399 So.2d 375 (Fla. 3d DCA 3 Although the Peat, Mar......