Segall v. Segall
| Decision Date | 26 October 1993 |
| Docket Number | No. 92-2825,92-2825 |
| Citation | 632 So.2d 76 |
| Parties | 18 Fla. L. Weekly D2297 Barry SEGALL, et al., Appellants, v. Norman S. SEGALL, et al., Appellees. |
| Court | Florida District Court of Appeals |
Lawrence H. Rogovin, North Miami Beach, for appellants.
O'Connor & Lemos and Wayne K. Richardson, Miami, for appellees.
Before NESBITT, JORGENSON and COPE, JJ.
Barry Segall and Edward Segall appeal from a final summary judgment entered against them in their action for legal malpractice against Norman Segall and Stuart Gold. We affirm.
Norman Segall and Stuart Gold represented the appellants in a lawsuit filed against Downtown Associates, Ltd. A jury returned a verdict against the appellants. The appellants then retained another law firm to represent them in the appeal. This court, however, dismissed the appeal for failure to comply with discovery orders. Segall v. Downtown Assocs., 546 So.2d 11 (Fla. 3d DCA 1989). After the dismissal, the appellants instituted a legal malpractice action against Segall and Gold claiming that as a result of the malpractice the jury returned a verdict against them. 1 Segall and Gold filed a motion for summary judgment claiming that the appellants had abandoned their claim for legal malpractice because they had failed to obtain a final appellate decision on the merits. The trial court entered final summary judgment in favor of Segall and Gold. 2
Under Florida law, "a cause of action for legal malpractice does not accrue until the underlying legal proceeding has been completed on appellate review because, until that time, one cannot determine if there was any actionable error by the attorney." Peat, Marwick, Mitchell & Co. v. Lane, 565 So.2d 1323, 1325 (Fla.1990) (citations omitted); see also Zitrin v. Glaser, 621 So.2d 748, 749 (Fla. 4th DCA 1993) (); Haghayegh v. Clark, 520 So.2d 58 (Fla. 3d DCA 1988) ().
Where a party's loss results from judicial error occasioned by the attorney's curable, nonprejudicial mistake in the conduct of the litigation, and the error would most likely have been corrected on appeal, the cause of action for legal malpractice is abandoned if a final appellate decision is not obtained. Pennsylvania Ins. Guar. Ass'n v. Sikes, 590 So.2d 1051 (Fla. 3d DCA 1991). In Sikes an insurer's attorney drafted an answer which failed to deny allegations of negligence. The attorney did deny negligence in the insurer's pleading of the affirmative defense of comparative negligence. The plaintiffs moved to proceed only on the issue of damages on the basis that the answer was insufficient to deny liability. The trial court denied the attorney's motion to amend his answer even though liability had always been a hotly contested issue. The trial proceeded solely on the issue of damages, and the jury returned a verdict against the insurer. The attorney for the insurer recommended that his client appeal the final judgment. Before the appeal was perfected, the insurer settled the case. The insurer then filed a legal malpractice suit against the attorney. This court held that the insurer abandoned its legal malpractice suit when it settled the underlying personal injury suit while the appeal was pending, because "[i]f the appeal in the personal injury [case] had run its appellate course, in all likelihood, there would have been a reversal of the judgment." Sikes, 590 So.2d at 1053.
In this case, the plaintiffs in the malpractice action frustrated the appeal in the underlying litigation and caused their appeal to be dismissed by willfully evading discovery in aid of execution, and by defying "previous trial court orders which allowed them sufficient time and opportunity to purge themselves of contempt." Segall, 546 So.2d at 12. By engaging in conduct that led to the dismissal of their appeal, the plaintiffs foreclosed any determination...
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