Richards Enterprises, Inc. v. Swofford
| Decision Date | 02 October 1986 |
| Docket Number | No. 85-1248,85-1248 |
| Parties | 11 Fla. L. Weekly 2099 RICHARDS ENTERPRISES, INC., Appellant, v. Herbert R. SWOFFORD, and Herbert R. Swofford, P.A., Appellees. |
| Court | Florida District Court of Appeals |
Jeffrey A. Icardi, of Icardi Law Offices, P.A., Winter Park, for appellant.
Herbert R. Swofford, Orlando, for appellees.
Richards Enterprises, Inc., appeals an order dismissing its cause of action against attorney Herbert Swofford and Herbert Swofford, P.A. Richards argues that the trial court erred in holding that its claim for legal malpractice was barred by the applicable two-year statute of limitations. We agree and reverse.
Swofford was retained to represent Richards and to prepare closing documents which included a note and mortgage in a real property transaction. He was also retained to foreclose the mortgage. The foreclosure was decided adversely to Richards, the trial court finding that the original transaction was fraudulently induced. Richards obtained substitute counsel who filed a motion for new trial. On December 22, 1981, the motion was denied. The order was affirmed on appeal by this court on April 20, 1983.
On April 19, 1985, Richards filed a complaint for legal malpractice against Swofford. Swofford moved to dismiss, contending in part that the action was barred by the statute of limitations. The motion was granted and the case dismissed by the trial court on the basis that the statute of limitations began to run on December 22, 1981, the date of the denial of the motion for new trial in the mortgage foreclosure action as that was the date any cause of action was "discovered or should have been discovered with the exercise of due diligence." See Birnholz v. Blake, 399 So.2d 375 (Fla. 3d DCA 1981).
In Adams v. Sommers, 475 So.2d 279 (Fla. 5th DCA 1985), we reversed a summary final judgment in favor of an attorney in a legal malpractice action. There we held that the two year statute of limitations did not begin to run until the decision adverse to the client (which was the subject of the malpractice action) was appealed to this court, a decision was rendered and no further action was taken. Our decision was based on the premise that had the lower court's ruling been reversed, the client would not have had a cause of action for malpractice on that ground.
In the present case, Richards' motion for new trial was denied on December 22, 1981. However, that decision was appealed and had this court reversed that decision, Richards' mortgage foreclosure claim would have been viable and Richards would not have had a malpractice action based on that ground.
In Kelley v. School Board of Seminole County, 435 So.2d 804 (Fla.1983), a case relied on by the dissent, the defective roof was apparent. There the Florida Supreme Court held that the efforts of the architect and the contractor to repair or cure the defects did not toll the statute. Here, unlike Kelley, Swofford had been retained to prepare and subsequently to foreclose a mortgage. There was no "leaking water" to reveal the defect. The validity or invalidity of the mortgage and Swofford's work in preparing it were to be tested by its enforceability. If the appellate court had found that the court erred in refusing foreclosure, Swofford would not have been negligent. Hence, no cause of action for malpractice existed at the time of the judgment denying foreclosure and the statute of limitations did not begin to run from December 22, 1981.
REVERSED and REMANDED for further proceedings.
In this case an attorney, appellee Swofford, represented a client, appellant Richards Enterprises, as seller, in the sale of a business and prepared a bill of sale and a purchase money note and mortgage in favor of his client. Later when the purchaser (Gokel) did not pay the purchase money note attorney Swofford filed an action to foreclose the purchase money mortgage. In the mortgage foreclosure action, the purchaser counterclaimed for rescission of the sale on the ground that the seller (Richards) induced the sale by fraudulent misrepresentations. The trial court rescinded the sale and voided the purchase money mortgage by a final judgment dated December 1, 1981. Immediately after the trial and adverse result, the client discharged attorney Swofford and retained new counsel who moved for a new trial, then appealed a denial of the motion for a new trial, which denial was affirmed by this court on April 20, 1983. 1 On April 19, 1985, the client, Richards, filed a legal malpractice action against attorney Swofford, alleging negligence in the preparation of the original bill of sale, mortgage, and note and negligence in trial of the mortgage foreclosure action. Attorney Swofford moved to dismiss the malpractice action on the ground that it appeared from the complaint, as a matter of law, that the applicable two year statute of limitations (§ 95.11(4)(a), Fla.Stat.) had run. The trial court dismissed the malpractice action and the client appeals.
A cause of action is the legal right in a plaintiff to recover judgment against a defendant whose breach of a duty owed the plaintiff has caused the plaintiff injury or damage for which the law provides a remedy. Such a cause of action comes into existence, or accrues, whenever the necessary predicate facts have occurred and continues in existence for a period of time which is limited by law in statutes of limitations. Statutes of limitations are not simply technicalities. They are as fundamental to a well-ordered judicial system as they are to any economic system that requires predictability. Board of Regents v. Tomanio, 446 U.S. 478, 487, 100 S.Ct. 1790, 1796, 64 L.Ed.2d 440, 449 (1980). These statutes prevent the very real danger of unfairness to defendants who are faced with stale claims after the lapse of a long period of time. Nardone v. Reynolds, 333 So.2d 25 (Fla.1976), conformed to, 538 F.2d 1131 (5th Cir.1976).
Chapter 95, Florida Statutes, provides for such periods of limitation as to various causes of action. Most such statutes of limitations run from the date the cause of action in fact first exists, or accrues, regardless of whether the person in favor of whom the cause of action exists (the plaintiff) knows of the existence of his injury or damage, or knows of the occurrence of the predicate set of causative facts, or knows the specific nature of the event causing the resulting injury or damage, or knows the exact identity of the particular person causing those facts, or knows the significance of those facts as entitling the plaintiff to bring an action at law to recover a judgment for damages. An example is the running of statutes of limitations against the cause of action for ejectment to recover real property in absentee owners against unknown persons unknown by the plaintiff to be in adverse possession of real property (§§ 95.12--95.18, Fla.Stat.).
In most situations an act which breaches a legal duty to others, whether ex contracto or ex delicto, almost immediately causes obvious or apparent injury or damage and the injured party can, and is held by law to use diligent effort to, discover the identity of the person causing the injury or damage and to pursue his legal remedy against the tortfeasor within the limitations period. However, in instances of professional malpractice, there is sometimes a long time lapse between a negligent act and the resulting injury or damage. In such a case the usual statute of limitations, running from the negligent act, could expire before the resulting injury or damage became apparent or obvious. To solve this problem in this class of cases, the legislature has provided that the statute of limitations commences not from the negligent act itself but from the time the "defect" (§ 95.11(3)(c), Fla.Stat.), "cause of action" (§ 95.11(4)(a), Fla.Stat.), or "incident giving rise to the action," is discovered or should have been discovered with the exercise of due diligence. This is called the "discovery rule" which has been adopted in many states by statute and in others by court decision. 2 By its very nature this rule, and its need and effect, declines in importance and applicability in a particular case with reduction in the time between the negligent act and any resulting apparent or "obvious" 3 injury or damage. Of course, instances of fraud or active concealment of the negligent act or the resulting injury are special cases.
In School Board of Seminole County v. GAF Corp., 413 So.2d 1208 (Fla. 5th DCA 1982), quashed sub nom., Kelley v. School Board of Seminole County, 435 So.2d 804 (1983), a school board hired an architect to design some new schools and a general contractor to build them. The general contractor hired a roofing contractor and the roofing subcontractor bought roofing material from GAF Corp. and installed it. The new roofs leaked. At the request of the school board the architect investigated the cause of the leaks and spent much time trying to get the roofing contractor and roofing material supplier to take responsibility for, and to fix, the leaky roofs. By the time the school board brought legal actions against the three parties "possibly " responsible for the leaks, viz: the roofing material supplier (GAF), the roofing subcontractor, and the architect (Kelley), the statute of limitations against the architect had run when measured from the time it was obviously known by the school board that the roofs leaked. The majority opinion and the special concurring opinion in School Board of Seminole County reversed a summary judgment in favor of the architect. On certiorari review the supreme court disapproved and quashed the district court opinion in Kelley v. School Board of Seminole County, 435 So.2d 804 (Fla.1983), and approved decisions from other district courts to the effect (1) that statutes of...
To continue reading
Request your trial
-
Sharts v. Natelson
...occurring during litigation). See Graham v. Holler, 499 So.2d 62 (Fla.Dist.Ct.App.1986) (distinguishing Richards Enterprises v. Swofford, 495 So.2d 1210 (Fla.Dist.Ct.App.1986)); Grunwald v. Bronkesh, 621 A.2d at 465; Magnuson v. Lake, 78 Or.App. 620, 717 P.2d 1216 (1986); Zidell v. Bird, 69......
-
Grunwald v. Bronkesh
...loss of their case at trial did not begin to run until the adverse judgment was affirmed on appeal."); Richards Enterprises, Inc. v. Swofford, 495 So.2d 1210 (Fla.App. 5 Dist.1986), cause dismissed by, 515 So.2d 231 (Fla.1987) (statute of limitations on legal malpractice claim ran from when......
-
Knight v. Furlow, 87-1140.
...judgment is affirmed on appeal. See, e.g., Haghayegh v. Clark, 520 So.2d 58 (Fla.Dist.Ct.App. 1988); Richards Enterprises, Inc. v. Swofford, 495 So.2d 1210 (Fla.Dist.Ct.App. 1986), dismissed for lack of prosecution, 515 So.2d 231 (Fla. 1987); Diaz v. Piquette, 496 So.2d 239 (Fla.Dist.Ct.App......
-
Laird v. Blacker
...disappear or become suspended because a more final adjudication of the result is sought. (Richards Enterprises, Inc. v. Swofford (Fla.1986) 495 So.2d 1210, 1216 (dis. opn. of Cowart, J.) ["Appellate review in civil cases can correct judicial error, but an appeal does not eliminate a trial l......
-
4-5 Statute of Limitations
...from by Perez-Abreu, Zamora & De La Fe, P.A. v. Taracido, 790 So. 2d 1051 (Fla. 2001). See also Richards Enters., Inc. v. Swofford, 495 So. 2d 1210 (Fla. 5th Dist. Ct. App. 1986), cause dismissed, 515 So. 2d 231 (Fla. 1987); Diaz v. Piquette, 496 So. 2d 239 (Fla. 3d Dist. Ct. App. 1986); Za......