The recent opinion of the Florida Supreme Court in Larson & Larson, P.A. v. TSE Industries, Inc., 34 Fla. L. Weekly S591 (Fla. Nov. 5, 2009) is interesting both for its holding and the procedure utilized for reversing the Second District in the underlying case of TSE Industries, Inc. v. Larson & Larson, P.A., 987 So. 2d 687 (Fla. 2nd DC 2008).Larson & Larson were sued for alleged legal malpractice arising out of a patent infringement suit. The jury returned a verdict in favor of the defendants finding that the plaintiff’s patent was invalid. Final judgment was entered and the case was not appealed. At the time of the entrance of the final judgment, the federal judge also found that sanctions were appropriate and retained jurisdiction for the purpose of assessing the amount of attorney’s fees due under his sanctions ruling. Several months later the parties settled the sanction issue and more than two years after the judgment but five days before the date of the settlement, the lawyers were sued for legal malpractice relative to both the final judgment in the underlying case and the sanctions ruling which resulted in the settlement. The trial court entered a final summary judgment based upon the statute of limitations both with respect to the final judgment and the sanctions settlement and the Second District reversed concluding that because the sanctions claim remained outstanding, the case was not final and a legal malpractice action could be brought so long as it was brought less than two years after the date of the sanction settlement.
95.11(4)(a) Fla. Stat. (2002) states that a legal malpractice action must be brought within two years “from the time the cause of action is discovered or should have been discovered with the exercise of due diligence.”
(Emphasis by the Court.)The case came up for review before the Florida Supreme Court as a result of a certified conflict with the Fourth District’s opinion in Integrated Broadcast Services, Inc. v. Mitchell, 931 So. 2d 1073 (Fla. 4th DCA 2006). In Mitchell the facts were nearly identical to the issues in TSE Industries, Inc., supra. A final summary judgment was rendered in favor of the defendants and was affirmed on appeal but while the case was on appeal the defendants moved for sanctions and two months after the final judgment the Court awarded sanctions which was also appealed. The legal malpractice action was brought more than two years after the final summary judgment was final on appeal but less than two years after the sanction judgment became final. The Fourth District held that the underlying legal malpractice action was barred but a legal malpractice action with reference to the sanctions was not barred.
Part of the reasoning of the Second District was that since the sanctions action was still outstanding the client still had to rely upon the lawyer’s advice and under the “continuing representation doctrine” the statute of limitations did not begin to run until the lawyer’s work was done and the client could seek other counsel. The majority relied on Perez-Abreu Zamora & De Le Fe, P.A. v. Taracido, 790 So. 2d 1051 (Fla. 2001), which rejected the continuing representation doctrine in an architectural malpractice action and thus rejected that doctrine in legal malpractice cases as well, relying instead upon the practical meaning of when a client should reasonably be held to have discovered legal malpractice, the majority concluded that once a final judgment has been entered and the appeal period has ended or it has been affirmed on appeal, there can be no doubt in the client’s mind that the client faces potential execution on the judgment and, thus, as a matter of law, will be held to have discovered the harm caused by the lawyer’s negligence.
While this case ends the controversy created by the Second and Fourth District opinions discussed above, it is also interesting because it results in reversal of the Second District even though only three Justices joined in the majority opinion. Justice Perry concurred with the majority that the underlying action was barred but would have affirmed the ruling of the trial court that the summary judgment entered barring both the underlying action and the sanctions issue was correct. Three additional Justices dissented in agreement with the Second District that neither action was barred. There was, thus, no true majority voting for reversal of the Second District’s opinion or any explanation as to why such a fractured opinion should stand as an opinion of the majority and result in reversal. Chief Justice Quince was among the dissenters so it is not clear as to how the tie was broken. Nevertheless, apparently the law of Florida is now settled on this issue.
Originally published in February 2010