Sawyer v. Earle
| Decision Date | 10 February 1989 |
| Docket Number | No. 88-980,88-980 |
| Citation | 14 Fla. L. Weekly 413,541 So.2d 1232 |
| Parties | 14 Fla. L. Weekly 413 Hugh SAWYER, Appellant, v. Richard T. EARLE, Jr., Appellee. |
| Court | Florida District Court of Appeals |
Alan S. Christner, Jr. of Staack & Christner, Clearwater, for appellant.
Ted R. Manry, III and John W. Campbell of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellee.
Hugh Sawyer appeals the dismissal of his legal malpractice complaint against Richard T. Earle, Jr. The trial court dismissed the complaint on the ground that the action was barred by the statute of limitations. In affirming the trial court's judgment, we also certify to the Florida Supreme Court that this decision is in direct conflict with decisions of other district courts of appeal on this issue. Art. V, § 3(b)(4), Fla. Const.
On August 9, 1979, Sawyer retained Earle to represent him in a bar grievance matter. Earle represented Sawyer through his disciplinary hearing on August 19, 1980 and until March 2, 1981, when Sawyer substituted another attorney to replace Earle as his counsel. At the close of the August 19, 1980 disciplinary hearing, the referee announced that he was going to recommend an eighteen-month suspension. The referee served his report on Sawyer's attorney on February 10, 1982.
On June 17, 1982, the Florida Supreme Court approved the findings and recommendations of the referee and suspended Sawyer for eighteen months, effective July 19, 1982. See The Florida Bar v. Sawyer, 420 So.2d 302 (Fla.1982); cert. denied, 460 U.S. 1043, 103 S.Ct. 1441, 75 L.Ed.2d 798 (1983) Sawyer received a copy of this order on June 28, 1982.
On June 26, 1984, Sawyer filed a complaint alleging various counts of legal malpractice during Earle's representation of him during the 1980 and 1981 disciplinary proceedings. Sawyer subsequently gave deposition testimony that he believed he was being poorly represented during the August 19 hearing and thereafter until he substituted another attorney for Earle in March of 1981. He also testified and provided sworn statements that he suffered a loss of income in 1980 because of Earle's alleged malpractice. Earle filed a motion for summary judgment, arguing that Sawyer's cause of action arose in 1980 when Sawyer claimed he suffered damages because of Earle's alleged negligent acts. The trial court granted Earle's motion for summary judgment, ruling that Sawyer's cause of action arose by more than two years prior to the filing of his complaint.
On appeal, Sawyer argues that his cause of action did not accrue until his damages were ascertained when he learned of his suspension from the practice of law on June 28, 1982. As evidence of when Sawyer discovered his cause of action, Earle points to Sawyer's deposition testimony and sworn statements that he discovered Earle's alleged negligence and suffered damages prior to his actual suspension in 1982, and to the fact that Sawyer changed attorneys in March of 1981 due to his perception of Earle's negligence.
Section 95.11(4)(a), Florida Statutes (1980), (1981) and (1982), provided, in part, that the two-year period of limitations for an action for nonmedical professional malpractice "shall run from the time the cause of action is discovered or should have been discovered with the exercise of due diligence." Some cases which have construed this section, upon which appellant relies, have ruled that a cause of action does not exist until the amount of damages are ascertained or incurred. In Birnholz v. Blake, 399 So.2d 375 (Fla. 3d DCA 1981), the client knew of his attorney's malpractice (failure to prosecute), but the attorney assured the client that the failure to prosecute issue would ultimately be decided favorably on appeal or that the client could file a new action. Although the trial court denied the motion to dismiss for lack of prosecution, the third district reversed on appeal and the Florida Supreme Court denied certiorari. The client filed his malpractice complaint against the attorney exactly two years after the Florida Supreme Court ruled unfavorably to the client on the failure to prosecute issue. On appeal of the attorney malpractice action, the third district reversed the trial court's summary judgment in favor of the attorney, ruling that although the client was put on notice of the possible malpractice when his case was ordered dismissed by the appellate court for lack of prosecution, such knowledge was not dispositive of the question because the client was only put on notice of the "possible" negligence of his attorneys and not of his injury or damages. Id. at 377. The court then stated that the essential elements of a cause of action accrue when the "last" element necessary to constitute the cause of action occurs. Id.
Subsequently, in Diaz v. Piquette, 496 So.2d 239 (Fla. 3d DCA 1986), review denied, 506 So.2d 1042 (Fla.1987), the third district ruled that the period for commencing an action on a claim for alleged legal malpractice based on the loss of a case at trial did not begin to run until the adverse judgment was affirmed on appeal. The court specifically stated that it was following the fifth district's holding in Richards Enterprises v. Swofford, 495 So.2d 1210 (Fla. 5th DCA 1986), cause dismissed, 515 So.2d 231 (Fla.1987) and noted that there were strong indications in other cases that this is the rule, citing Chapman v. Garcia, 463 So.2d 528 (Fla. 3d DCA 1985) and Birnholz. See also Adams v. Sommers, 475 So.2d 279 (Fla. 5th DCA 1985) ().
More recently, in Breakers of Fort Lauderdale, Ltd. v. Cassel, 528 So.2d 985 (Fla. 3d DCA 1988), the third district stated that where an attorney improperly failed to settle a lawsuit, the damage occurred and the cause of action accrued at the moment the client incurred the expense of having to continue to defend against a lawsuit that should have been settled. The court distinguished Diaz, 496 So.2d at 239, from Breakers on the ground that Diaz concerned an attorney who had lost a case at trial. The court reaffirmed its holding in Diaz that in such an instance there could be no claim until the trial loss was made final on appeal. Bre...
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