Birnholz v. Blake

• Decision Date: 19 May 1981
• Docket Number: No. 80-174,80-174
• Citation: 399 So.2d 375
• Court: Florida District Court of Appeals
• Parties: Stanford BIRNHOLZ, Appellant, v. Timothy Carl BLAKE, Esquire, Stephens, Magill & Thornton, P.A. and Employers Reinsurance Corporation, Appellees.

Page 375

399 So.2d 375

Stanford BIRNHOLZ, Appellant, v. Timothy Carl BLAKE, Esquire, Stephens, Magill & Thornton, P.A. and Employers Reinsurance Corporation, Appellees.

No. 80-174.

District Court of Appeal of Florida, Third District.

May 19, 1981.

Rehearing Denied June 25, 1981.

Richard L. Polin, Fort Lauderdale, for appellant.

Jeanne Heyward, Peters, Pickle, Flynn, Niemoeller, Stieglitz & Downs, Ponzoli & Wassenberg, Alfred D. Bieley, Miami, for appellees.

Before HENDRY, NESBITT and FERGUSON, JJ.

NESBITT, Judge.

The primary question presented is whether there was a triable issue of fact as to whether a former client discovered or should have discovered a cause of action against his former attorneys for their alleged professional negligence. Because we find that there was a triable issue of fact, we reverse the order granting summary judgment and remand the cause for further proceedings.

Birnholz, the appellant, is a certified public accountant and an attorney specializing

in taxation. From 1970 to 1976, the appellant shared office space with his former attorneys, the appellees. In 1972, Birnholz retained the appellees to collect fees from Steisel, a client, for services rendered. After non-record activity of more than one year in the Birnholz-Steisel action (Steisel I), Steisel filed a motion to dismiss for want of prosecution. The motion was denied by the trial court but reversed by this court on appeal in Steisel v. Birnholz, 313 So.2d 125 (Fla.3d DCA 1975) on May 20, 1975. On June 18, 1975, petition for rehearing was denied. The Florida Supreme Court denied certiorari on March 9, 1976 (Steisel v. Birnholz, 330 So.2d 14 (Fla. 1976)). On May 2, 1975, prior to our decision in Steisel v. Birnholz, supra, the appellees reinstituted the litigation for Birnholz by filing a ten-count complaint against Steisel claiming fees and services on various theories (Steisel II). On March 9, 1978, Birnholz commenced this action for professional negligence against his former attorneys, the appellees. The appellees then filed a motion for summary judgment asserting that the action was barred by the statute of limitations and, in the alternative, that Birnholz' claims as asserted in the second action, Steisel II, are still viable. The trial court granted the summary judgment on the first ground, which is the subject of the main appeal, and denied summary judgment on the second ground, which is the basis for the appellees' cross-appeal.

THE MAIN APPEAL

It appears that Birnholz performed some services in connection with the Steisel I litigation. He admitted that he was generally aware of the decisions rendered by the courts and the actions taken by his attorney but specifically denied appreciating the legal consequences thereof. In his deposition, he testified that he was assured by the appellees that this court's decision in Steisel I would be quashed or, in the alternative, that he would be adequately protected by instituting the new action, Steisel II, notwithstanding the defense of limitation.

Appellees attempt to support the summary judgment by contending that the two-year period of limitations, prescribed by Section 95.11(4)(a), Florida Statutes (1977), ¹ had already elapsed when Birnholz commenced the professional negligence action on May 9, 1978, whether one considers the statute of limitations to have been activated by our decision in Steisel I on May 20, 1975 or by the denial of rehearing entered on June 18, 1975. The relevant provisions of Section 95.11(4)(a) provide: "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 which triggers the running of the statute of limitations is notice to or knowledge by the injured party that a cause of action has accrued in his favor, and not the date on which the negligent act which caused the damages was actually committed." (emphasis supplied) Edwards v. Ford, 279 So.2d 851, 853 (Fla. 1973), adopting (and quoting) Downing v. Vaine, 228 So.2d 622, 625 (Fla.1st DCA 1969); accord, Schetter v. Jordan, 294 So.2d 130 (Fla.4th DCA 1974).

Appellees rely upon our decision in Henzel v. Fink, 340 So.2d 1262 (Fla.3d DCA 1976), cert. denied, 348 So.2d 948 (Fla. 1977). We readily distinguish that decision because there seven years had elapsed after the client had learned everything he was ever going to know about the case and his cause of action was complete. Appellees further rely upon Watson v. Dorsey, 265 Md. 509, 290 A.2d 530 (1972). In Watson, the client's cause of action against his former attorney was barred by the statute of limitations because the client was aware at the termination of the litigation that the failure on the part of the attorney to call key witnesses, whose names were supplied by the client, caused the entry of the adverse judgment. There, too, the client was fully aware of the attorney's negligent act at the time the litigation terminated.

In the present case, though Birnholz knew of the existence of our decision in Steisel I which ordered dismissal of his cause of action for want of prosecution, that knowledge alone was not dispositive of the question. Birnholz was only put on notice of the possible negligence of his attorneys and not of his injury or damages. The appellees' assurances to Birnholz that our decision would be quashed by the Supreme Court (which it was not) or, in the alternative, the reassurances that the action could be successfully reinstituted (Steisel II), over the defense of limitations, only served to allay his concern about actual injuries. It is settled that the essential elements of a cause of action accrue...