Florida Legal Malpractice: 1st DCA enforces 2 year statute of limitations after settlement talks
On June 6, 2017, Florida’s 1st District Court of Appeal issued its opinion in the legal malpractice case Riverwood Nursing Center, LLC v. Gilroy. You can read this opinion for free at the 1st DCA website. A link is also provided at the end of this Florida Legal Commentary.
In this recent case of professional negligence, the Florida Appeals Court upheld a summary judgment order issued by the trial court, which, in essence, dismissed the legal malpractice lawsuit based upon the statute of limitations.
This case is significant for two reasons.
Does Equitable Estoppel Apply if You Are Talking Settlement? First, it further explains the doctrine of equitable estoppel and reminds attorneys in Florida that this doctrine is only applicable if there is some mis-representation or fraud. Merely talking about resolving a case is not fraud or mis-representation.
Talking vs. Filing Pre-suit settlement talks –doing what lawyers should actually do (talk to one another)—won’t suspend or “toll” the statute of limitations. Attorneys who handle plaintiff work should be reminded that just because everyone is nice and friendly, and talking settlement, that no one is agreeing to give up or waive any affirmative or other defenses. Don’t talk your way to a non-resolution and then blow the filing deadline. Don’t be lulled into any sense that things will work out or that settlement will occur.
Is a tolling agreement appropriate? Secondly, this case reminds us that obtaining a tolling agreement may be appropriate when the statute of limitations is short, or the end may be approaching. My firm handles a lot of probate litigation, where the statutes of limitations, under the Florida Probate Code, can be terribly short: 3 months, 2 years. Yes, there are time constraints and limitations periods in inheritance lawsuits other than Chapter 95. The trust lawyers in our firm who handle trust litigation are always mindful of the 6 month statute of limitations found in the Florida Trust Code; when a “limitations notice” accompanies data that is “adequately disclosed” in a Florida trust accounting, or trust disclosure document.
How long do I have to sue a Florida lawyer for malpractice? There is a 2 year statute of limitations to sue your Florida lawyer for malpractice. Florida Statute Section 95.11 (4)(a) The statute of limitations for legal malpractice begins to start, or run, when the last element of the cause of action accrues or begins. In many cases, the last element to occur for suing a lawyer is the existence of damages, or harm.
Tolling Agreements for Florida Legal Malpractice Generally, the only exception to not filing a malpractice action within 2 years is when the other side — the defendant attorney—consents to the “tolling” or suspension of the statute of limitations. This is very common when suing, or thinking of suing, an attorney: the defendant law firm or lawyer, and the plaintiff, agree that the statute of limitations, if it has not already expired, will be suspended, or stopped. This way, the parties can talk and discuss the case without the lawyer being an actual defendant in a malpractice lawsuit, and the plaintiff can stop the statute of limitations clock from ticking. This understanding is reduced in writing to a tolling agreement for the defendant accused of malpractice to sign.
In this recent Florida Appellate Case, after a resolution was not achieved between the parties, the plaintiff then filed suit against the former lawyer, but it was more than 2 years from the damage or the harm. The malpractice lawsuit was dismissed at the trial court and upheld on appeal.
So, if you are going to talk settlement pre-suit, don’t think that that stops the clock or suspends the statute of limitations. And don’t think that it’s unfair if you are talking settlement, and a resolution does not result. If you want to stop the statute of limitations, get a tolling agreement or file your lawsuit and complaint.
In our West Palm Beach litigation law firm, we are often asked to represent attorneys personally in everything from fee disputes to allegations of malpractice. To us, that is often the highest form of a compliment. We have also helped families and beneficiaries with the challenging issues of estate planning malpractice. If you are a Florida attorney and are interested in hearing more about probate and estate malpractice, or Florida malpractice issues in general, email Amanda@phFlorida.com. She can provide a free link to a Florida CLE on legal malpractice which I conducted. This free continuing legal education course is Florida Bar-approved for general and ethics credits.
Here is a link to read this Florida malpractice case opinion for free from the 1st District Court of Appeal website: https://edca.1dca.org/DCADocs/2016/2556/162556_DC05_06062017_082016_i.pdf