Clemente v. Freshman

• Decision Date: 21 June 2000
• Docket Number: No. 3D99-2673.,3D99-2673.
• Citation: 760 So.2d 1059
• Court: Florida District Court of Appeals
• Parties: Reynel CLEMENTE, Appellant, v. Lawrence N. FRESHMAN, individually and Freshman, Freshman & Traitz, P.A., Appellees.

760 So.2d 1059

Reynel CLEMENTE, Appellant, v. Lawrence N. FRESHMAN, individually and Freshman, Freshman & Traitz, P.A., Appellees.

No. 3D99-2673.

District Court of Appeal of Florida, Third District.

June 21, 2000.

Mark I. Blumstein (Ft. Lauderdale), for appellant.

Jay M. Levy, Miami, for appellees.

Before COPE, GREEN, and SORONDO, JJ.

GREEN, J.

Reynel Clemente appeals the dismissal, with prejudice, of his legal malpractice action against his former legal counsel, appellees, Lawrence N. Freshman, Esq. and Freshman, Freshman & Traitz, P.A. (collectively "Freshman firm"). The basis of the lower court's dismissal was that this action was time barred by the two year statute of limitation period found in section 95.11(4)(a), Fla. Stat. (1991). We reverse and remand for the following reasons.

According to the allegations of the complaint which we accept as true, on October 7, 1990, Reynel Clemente was severely injured while a passenger on a jet ski which was involved in a boat collision. The owner/operator of the jet ski was killed in the accident. Clemente retained the Freshman firm which filed suit against both the deceased owner/operator of the jet ski and against the owner/operator of a 21 foot Paramount power boat that was involved in the collision. On February 15, 1991, Clemente settled his claims against the owner/operator of the power boat and executed a general release which released them, their carrier "and all other persons, firms, corporations, associations or partnerships or any other entity connected therewith." On March 6, 1991, and again through the Freshman firm, Clemente executed a "Release and Indemnity Agreement" in favor of the deceased owner/driver of the jet ski which released the owner/driver, his carrier, "as well as all others responsible for injuries as a result of the subject accident."

After the resolution of these claims, Clemente learned, for the first time, that yet a third boat, a 36 foot Trawler, had also been involved in the collision with the jet ski. He retained new counsel, Brent L. Probinsky, Esq., who investigated the matter and filed a negligence suit against the owner/operator of the 36 foot Trawler vessel (hereinafter the "Trawler litigation"). After the Trawler litigation was commenced, the defendant in that case moved for final summary judgment on the grounds that the terms of the two general releases, executed by Clemente on February 15, 1991 and on March 6, 1991, precluded Clemente from maintaining that suit. At that time, Mr. Probinsky mailed a certified letter to the Freshman firm dated February 22, 1994 explaining that a motion for summary judgment had been filed in the Trawler litigation and that the Freshman firm may be liable for malpractice. On November 8, 1994, a final summary judgment was entered in favor of the defendant in the Trawler litigation based upon Clemente's execution of the general releases. No appeal was taken from this final judgment.

On November 1, 1996, Clemente's new lawyer, Richard L. Larin, Esq. of Hoffman, Larin and Agnetti, P.A. filed the instant legal malpractice action against the Freshman firm on the grounds that the firm fell below the applicable standard of care by, among other things, not properly investigating the boat collision case to ascertain all responsible parties and by allowing Clemente to execute general releases when there remained a responsible party and an additional cause of action which could be pursued. The complaint further alleged that Clemente would have been successful in the Trawler litigation if he had not been precluded from pursuing it.

On January 12, 1997, the Freshman firm moved to dismiss the complaint on the grounds, among other things, that it was barred by the two year statute of limitation period contained in 95.11(4)(a). The trial court granted the motion and dismissed this action with prejudice finding that Clemente first sustained redressable harm when he executed the general releases on February 15, 1991 and March 6, 1991. The lower court further found that Clemente knew or should have known of his redressable harm on or about the following dates:

a) September 15, 1992 when Clemente retained and/or had his file reviewed by Brent L. Probinsky, Esq., P.A. another plaintiffs firm; and/or

b) September 1992 through July 1993 when Brent L. Probinsky, Esq. filed the "Trawler litigation" for the very things which Clemente alleged that the Freshman firm failed to do; and/or

c) February 9, 1994 when the defendant in the "Trawler litigation" filed a motion for summary judgment on the basis of Clemente's execution of the general releases; and/or

d) February 22, 1994 when Brent L. Probinsky, Esq. mailed the certified letter to the Freshman firm placing it on notice of possible malpractice; and/or

e) October 27, 1994 when the motion for summary judgment was granted in the "Trawler litigation."

When Clemente's motion for rehearing was denied, he timely perfected this appeal.

On appeal, Clemente argues that the trial court erred in its determination that this action was barred by the two year statute of limitations for professional malpractice. Specifically, Clemente maintains that his redressable harm for legal malpractice did not occur on any of the dates relied upon by the lower court. He argues that he did not first sustain redressable harm until November 9, 1994, the date on which the court in the Trawler litigation entered an adverse final summary judgment against him based upon the general releases. As his legal malpractice claim against the Freshman firm was filed on November 1, 1996, he maintains that it was timely filed pursuant to section 95.11(4)(a), Fla. Stat. We agree and reverse.

The statute of limitation period for professional malpractice, other than medical malpractice, is found in section 95.11(4)(a), which provides in pertinent part that:

"WITHIN TWO YEARS—an action for professional malpractice, other than medical malpractice, ... provided 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."

Thus, a cause of action for professional negligence, under this statute, does not accrue until redressable harm or injury has been established and the injured party knows or should know of either the...