Burnside v. McCrary, 78-2342
| Decision Date | 11 March 1980 |
| Docket Number | No. 78-2342,78-2342 |
| Citation | 382 So.2d 75 |
| Parties | Everett L. BURNSIDE, Appellant, v. Jesse McCRARY, Appellee. |
| Court | Florida District Court of Appeals |
Greene & Cooper and Sharon L. Wolfe, Miami, for appellant.
Mitchell M. Goldman, Shalle Stephen Fine, Miami, for appellee.
Before HAVERFIELD, C. J., and HENDRY and SCHWARTZ, JJ.
Everett Burnside, plaintiff, appeals the entry of a summary final judgment in favor of defendant, Jesse McCrary, on the ground that his action for legal malpractice was barred by the applicable two-year statute of limitations.
In May 1972, Everett Burnside retained the law firm of McCrary, Ferguson, Lee, Culmer and Long 1 to represent him in prosecuting a racial discrimination claim against his former employer, Eastern Airlines. After Burnside exhausted his administrative remedies, Ferguson in August 1973 filed on his behalf a discrimination complaint against Eastern in federal district court. Periodically Burnside would call or visit the office to determine the progress of his case and on Aprilil 8, 1974 he made such a visit. He was told that Ferguson had left the firm and McCrary was handling his case which had been dismissed. Burnside met with McCrary and an altercation ensued over the dismissal. McCrary, however, assured Burnside that all it would take was the filing of a couple of motions to set aside the dismissal. Because of the personality conflict between Burnside and McCrary, the firm reassigned the case to Harold Culmer who filed a motion for relief from judgment. 2 This motion was denied. Culmer informed Burnside of the denial and of the appeal which he was perfecting. On September 17, 1975, the Fifth Circuit denied the appeal and Culmer sent Burnside a copy of the opinion. In 1977, Burnside went to the federal district court to examine the case file which reflected that Eastern moved to dismiss the action and the dismissal was granted because no response was filed by McCrary or any other member of the firm. McCrary's subsequent motion for relief from judgment was denied for the reason that the trial court found that McCrary failed to demonstrate any excusable neglect in not responding to Eastern's motion to dismiss. No appeal was taken from that denial order. Thereupon, Burnside, on September 12, 1977, 3 filed his complaint for legal malpractice against defendants McCrary, Ferguson, Lee, Long & Adderly and their successors in interest to the law firm. Defendants answered and pre-trial discovery ensued. Defendant McCrary filed a motion for summary judgment arguing that Burnside's action is barred by the two-year statute of limitations because on Aprilil 8, 1974 he learned his case had been dismissed at which time he discovered, or should have discovered, the alleged malpractice. After hearing argument, the trial judge entered judgment for McCrary and Burnside appeals. We reverse.
The established case and statutory law is that the statute of limitations with regard to attorney malpractice does not commence to run at the time the services are rendered by the attorney, but rather when the attorney's act of negligence becomes known or should have become known to the client. See Section 95.11(4), Florida Statutes (1977); 4 Edwards v. Ford, 279 So.2d 851 (Fla.1973); Pinkerton v. West, 353 So.2d 102 (Fla. 4th DCA 1977).
Although Burnside was informed in...
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