Diaz v. Maney, District Court of Appeal of Florida, Second District, August 11, 2010 (Unpublished).
Facts: Diaz retained Attorney Maney’s services with regard to her acrimonious relationship with her husband, Rood. During a counseling session, as a gesture of his sincerity in desiring reconciliation, Rood offered Diaz one-half of the inheritance he would receive upon the death of his father. Diaz asked Maney to draft an agreement memorializing Rood’s offer. The executed assignment prepared by Maney referenced "good and valuable consideration," but did not identify the nature of the consideration.
Approximately seven weeks later, Diaz filed for divorce which was finalized in April, 1996. Upon the death of Rood’s father in April, 2000, Diaz filed a claim with the estate based upon Rood’s assignment. Rood defended the action successfully based upon a lack of consideration. After an appeal and evidentiary hearing, this decision was affirmed by the appellate court.
Diaz then filed a legal malpractice action against Maney. Maney contended that the two year statute of limitations, which began to run in April, 1996, barred Diaz’ malpractice claim. More specifically, Maney argued that the marital settlement agreement stated that it superseded all other agreements, and should have put Diaz on notice of the unenforceability of Rood’s assignment.
Diaz argued that the malpractice claim did not accrue until the appellate division made a final determination that Rood’s assignment was not valid for lack of consideration.
Issue: Does an action for legal malpractice accrue only after a final determination of the pertinent issue by an appellate court?
[A] cause of action for legal malpractice does not accrue until the underlying proceeding has been completed on appellate review because, until that time, one cannot determine if there was any actionable error by the attorney…In the instant case, had this court reversed the trial court’s determination in Diaz’s civil suit that Rood’s assignment was unenforceable, Diaz would not have had a cause of action against Maney or his firm. However, when the determination that the assignment was unenforceable was affirmed by this court, a cause of action against Maney for negligent representation accrued. Then, and only then, did the statute of limitations begin to run.
Lesson: In Florida, the statute of limitations will not begin to run on a legal malpractice case until appellate review of the underlying action is complete. It would also appear, then, that it is incumbent on plaintiff to seek appellate review of the trial court’s decision in the underlying action before proceeding with an action for legal malpractice.