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The Law Offices of Robin Bresky Boca Raton & West Palm Beach Appellate Attorney
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Statute of Limitations for a Legal Malpractice Action Begins When the Injured Party Knows or Should Know of the Injury or the Negligent Act

McLeod v. Elk, Bankier, Christu, P.A., 4D10 – 37
June 8, 2011

The Fourth District addressed the issue of whether the statute of limitations had expired before a claim for legal practice was filed.  In 1998, Robert McLeod hired Thomas Tew as his attorney in order to sue Fidelity Investments (“Fidelity”) for an alleged error that resulted in the wrongful liquidation of McLeod’s account. The parties to that action reached a settlement that contained a general release for Fidelity. McLeod believed that his account would be restored to the status quo ante.  It was not.

Tew withdrew from his representation of McLeod.  McLeod then hired Elk Bankier in 2002 to file an arbitration claim against Fidelity.  The arbitration panel found in favor of Fidelity in 2003. Bankier then suggested filing a malpractice suit against Tew and recommended an attorney who specialized in legal practice claims. That attorney advised McLeod that he had no valid claim against Tew.  In 2004, McLeod then sought the advice of another attorney, William Isenberg.  Isenberg recommended pursuing a legal practice claim against Tew.  McLeod filed a malpractice action against Bankier in 2008, arguing that Bankier negligently allowed the statute of limitations against Tew to expire. Bankier obtained summary judgment based on the two-year statute of limitations, which it contended began when Tew terminated his relationship with McLeod in 2000 or, at the latest, when the arbitration panel reached its decision in 2003.
On appeal, the Fourth District noted that section 95.031(1), Fla. Stat. states that “[a] cause of action accrues when the last element constituting the cause of action occurs.”  The Court reasoned that: (1) as Tew advised McLeod in March 2000 that he would not longer represent him, any possible action against Tew expired in March 2002 and Bankier could not be liable for failure to sue Tew for malpractice since they were not retained until December 2002; (2) even if the limitations to sue Tew began at the arbitration decision in 2003 and expired in 2005, McLeod was advised of his possible cause of action against Tew and did not file against Bankier until 2008, after the statute of limitations against it had expired in 2007; and (3) the latest date at which McLeod’s cause of action against Bankier accrued was 2004 based on when Bankier advised him of his cause of action against Tew, so that the two-year statute of limitations still barred McLeod’s claim against Bankier. The Fourth District affirmed.

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