Downing v. Vaine

• Citation: 228 So.2d 622
• Decision Date: 09 December 1969
• Docket Number: No. L--273,L--273
• Parties: Edward R. DOWNING, Appellant, v. Joseph L. VAINE, Appellee.
• Court: Florida District Court of Appeals

Page 622

228 So.2d 622

Edward R. DOWNING, Appellant, v. Joseph L. VAINE, Appellee.

No. L--273.

District Court of Appeal of Florida, First District.

Dec. 9, 1969.

Edward R. Downing, pro se.

Blalock, Holbrook, Lewis, Paul & Bennett, Jacksonville, for appellee.

WIGGINTON, Judge.

Defendant attorney at law has appealed a final judgment rendered against him in a malpractice action in which he was charged with negligence in the handling of a civil action for plaintiff. The trial resulted in a verdict by which the jury awarded plaintiff damages in the sum of $10,000.00. The principal point on appeal challenges the correctness of the trial court's ruling which denied defendant's motion for directed verdict based upon his defense that the action was barred by the statute of limitations.

The facts pertinent to the issue presented for decision are not in material dispute. Appellee Vaine was a member of a tugboat crew operating in the waters of the Republic of Honduras. He and the members of his crew were arrested by the police authorities in Honduras on criminal charges placed against them by the local representative of Hawthorne Lumber Company, a New York corporation. It was ultimately determined on appeal that the accusations against appellee and the other members of the crew were unfounded, his conviction was reversed and he was ordered dismissed and pardoned. On returning to the United States, appellee and the other members of the crew employed a New York attorney to institute action against Hawthorne Lumber Company for recovery of damages suffered by them as a result of the malicious prosecution initiated by the local representative of that corporation in Honduras. The attorney so employed by appellee employed another set of attorneys as co-counsel, who in turn employed appellant. All three sets of attorneys diligently set about to secure a transcript of the record and trial proceedings involving the criminal prosecution against appellee in the courts of Honduras. Difficulty was experienced in securing these documents which were needed in order to properly prepare the action to be filed in the State of New York against the lumber company. The cause of action asserted by appellee Vaine and the other members of his crew against the lumber company accrued on March 24, 1962. The statute of limitations in effect in the State of New York required that all actions for malicious prosecution be commenced within two years from the accrual of the cause of action sued upon. Although appellant was employed as second co-counsel some six months prior to the expiration of the statute of limitations on March 24, 1964, the suit was not filed nor the action commenced on behalf of appellee against the lumber company until June 12, 1964. This date was more than two and one-half months after the expiration of the statute of limitations which barred the maintenance of the action.

Subsequent to the filing of the action by appellee in the Federal District Court of New York, the case took its normal course through the pleading and discovery stages. Defendant lumber company ultimately filed a motion for summary judgment based upon the ground that the action was barred by the two-year statute of limitations. A hearing on this motion was held before the court after which the matter was taken under advisement. It was not until February 2, 1967, that the court rendered its opinion and order granting summary final judgment in favor of the lumber company. The judgment was predicated upon the sole ground that the action was barred by the two-year statute of limitations in effect in the State of New York. It was not until March 20, 1967, that appellee Vaine was notified that his action had been dismissed because of its untimely filing. Appellant subsequently moved from the State of New York to Florida where he opened a law office and commenced the practice of law on October 1, 1968.

The action sub judice which we now review was brought by appellee Vaine against appellant Downing in the Circuit Court of Duval County, Florida, on October 23, 1968. The complaint filed herein charges appellant with negligence in his representation of appellee by having failed to commence his cause of action against the lumber company in the State of New York prior to the time it was barred by the statute of limitations of that state. The complaint alleges that as a result of the negligence of appellant, appellee suffered damages by being foreclosed of the opportunity of securing a judgment against Hawthorne Lumber Company for the malicious prosecution initiated by that company against appellee in Honduras. To the complaint appellant filed the defense of general denial and also the affirmative defense that this action is barred by the three-year statute of limitations effective in the State of New York and applicable to actions of this kind. In this defense appellant alleged that appellee's cause of action against him, if any, accrued on March 24, 1964, the date on which appellee's cause of action against the lumber company was barred by the statute of limitations in New York; that the action sub judice was not filed until October 23, 1968, more than four and one-half years after appellee's cause of action accrued, and it is therefore barred. At the conclusion of the evidence appellant moved the court for a directed verdict on his defense of the statute of limitations, which motion was denied. Appellant's request for instructions based upon his defense of the statute of limitations was likewise denied. It is these orders of denial which appellant assigns as error and urges as grounds for reversal.

The parties are in agreement that the statute of limitations in effect in the State of New York at the time appellant was employed as counsel to represent appellee, and at all pertinent times thereafter, required that actions for damages resulting from malpractice by an attorney be commenced within three years from the date the cause of action accrued. The sole question for our determination is when did appellee's cause of action against appellant accrue under the facts and circumstances of this case. If, as contended by appellant, the cause of action accrued on the date appellee's action for malicious prosecution against the lumber company in the State of New York was barred by the statute of limitations on March 24, 1964, then the action sub judice was untimely filed and is therefore barred by the New York three-year statute of limitations. If, however, as contended by appellee, the cause of action did not accrue to appellee until he was notified by his attorneys on March 20, 1967, that his action against the lumber company had theretofore been dismissed on February 2, 1967, because it was untimely filed, then the action sub judice was timely filed on October 23, 1968, and would not be barred by the three-year statute of limitations.

The general rule followed by most jurisdictions in the United States would seem to favor appellant's position that appellee's cause of action against him accrued on March 24, 1964, when appellee's cause of action against the lumber company was barred by the New York statute of limitations. The rule has been stated to be as follows:

'As a general rule, in the absence of fraudulent concealment, where an attorney at law is guilty of negligence or breach of duty in performing services for his client, the client's cause of action accrues and the statute begins to run at the time when the negligence or breach of duty occurs, not at the time when it is discovered or actual damage results or is fully ascertained; * * * where the attorney neglects to prosecute the claim until it becomes barred by the statute of limitations, the client's right of action accrues at the time the claim becomes barred and the statute runs against him from that date.' ¹

And in American Jurisprudence, the author propounds the general rule to be as follows:

'In the absence of any fraud or concealment on the part of an attorney, a client's cause of action based on professional negligence or misconduct accrues at the time of the neglect or misconduct, and the statute of limitations begins to run at that time. Thus, a cause of action based on an attorney's negligence or want of skill in the prosecution or management of an action or its defense accrues at the time the attorney fails to exercise the proper degree of professional skill, not when the consequent damages result or become liquidated, and the statute of limitations begins to run at the time the cause of action accrues.' ²

The foregoing rule was followed by the New Jersey Court of Errors and Appeals in the case of Sullivan v. Stout. ³ Decisions from other jurisdictions adhering to Sullivan v. Stout, supra, are annotated in 118 A.L.R. 216(1). A more recent case following the general rule is that of Fort Myers Seafood Packers, Inc. v. Steptoe & Johnson ⁴ decided by the United States Court of Appeals for the District of Columbia in 1967. For cases adhering to Fort Myers Seafood Packers, Inc. case, supra, see the cases annotated in 18 A.L.R.3d 1005, § 8(b).

A careful examination of the decisions which adopt the general rule above stated fails to disclose the rationale which gives credence to and justifies the rule. The effect of the rule is to hold that an injured client must commence the action against his attorney for malpractice within the period of limitations after the negligent act is committed, even though the client is totally unaware of the fact that the negligent act giving rise to the cause of action had occurred. We find it impossible to rationalize how an injured client can be required to institute an action within a limited time after his cause of action accrues if he has no means of knowing by the exercise of...