YULIA V. FOREST, Appellant,
L. LISA BATTS and STUART LAW GROUP, P.A., f/k/a L. LISA BATTS, P.A., Appellees.
final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Nineteenth Judicial Circuit,
Martin County; Elizabeth A. Metzger, Judge; L.T. Case No.
Prescott Curry of Curry, PL, Jupiter, for appellant.
Lisa Batts of Stuart Law Group, P.A., Stuart, for appellees.
trial court entered summary final judgment in a legal
malpractice action, concluding that the action was barred by
the statute of limitations. Appellant challenges that ruling,
arguing that the time for filing a cause of action for legal
malpractice does not begin to run until the underlying legal
proceeding has been completed through appellate review and
judicial labor comes to an end. We agree with appellant that
her legal malpractice action was timely filed within two
years of the entry of the amended final judgment, which was
entered after reversal of the final judgment on appeal. We
appellee Lisa Batts, and others, represented appellant in her
dissolution of marriage action against her former husband.
During those proceedings, the court bifurcated the
proceedings, granted the dissolution of the marriage, and
awarded the marital home to the husband on the ground that it
was a non-marital asset, as the court found that the wife
made no special claim against that asset. The court reserved
jurisdiction to enter a final judgment after resolving the
remaining issues. The court ultimately entered a final
judgment on all issues on January 24, 2011. In it, the court
incorporated the prior order, determined the equitable
distribution of assets and liabilities including the
husband's IRA, and determined that no alimony would be
awarded, as the husband did not have the ability to pay. The
wife appealed that judgment, and this court affirmed in part
and reversed in part. Forest-Kohl v. Kohl, 126 So.3d
1094 (Fla. 4th DCA 2012). We remanded for the court to make
necessary findings regarding credit card debt and school
loans but affirmed as to all other arguments. The trial court
complied with the mandate by entering an amended final
judgment on August 13, 2013. The appellant filed an appeal of
this amended final judgment, but she voluntarily dismissed
her appeal on October 4, 2013.
October 2013 the former husband sought to enforce the Second
Amended Final Judgment. The former wife contends that his
actions forced her to file bankruptcy in February 2014.
Within the bankruptcy case the former wife first initiated
her legal malpractice action in July 2014 through an
adversary proceeding against appellee. It was later filed in
state court on May 2015 pursuant to 28 U.S.C. Section
1367(d), after the dismissal of the bankruptcy proceeding and
within two years of the rendition of the amended final
Batts moved to dismiss the complaint, claiming that the
statute of limitations had run on the legal malpractice claim
against her. She then moved for summary judgment, which the
court ultimately granted. The court determined that the time
for filing of a legal malpractice action ran from the time of
the final judgment entered on January 24, 2011 (or thirty
days thereafter). The court discounted the appeal of that
final judgment, because the issues on appeal did not concern
the matters upon which appellant's legal malpractice
claim was based, namely claims for credits against
non-marital assets which appellee should have pursued as well
as the husband's income to support an alimony award. It
also discounted the amended final judgment entered after
remand, because the only terms that changed in the amended
final judgment were the disposition of marital liabilities,
not the equitable distribution of properties or alimony.
Because the appellant knew that she had not received any
interest in the non-marital properties or an award of alimony
at the time of the 2011 final judgment, the court reasoned
that the time for filing a legal malpractice claim began to
run. The court entered summary final judgment, prompting this
standard of review of an order ruling on a motion for summary
judgment which poses a pure question of law is de novo.
State v. Presidential Women's Ctr., 937 So.2d
114, 116 (Fla. 2006); Major League Baseball v.
Morsani, 790 So.2d 1071, 1074 (Fla. 2001).
95.11(4)(a), Florida Statutes (2015), provides that an action
for legal malpractice "shall run from the time the cause
of action is discovered or should have been discovered with
due diligence." Our supreme court has interpreted this
as meaning the time when finality occurs in the underlying
cause of action in which any malpractice is alleged to have
[W]hen a malpractice action is predicated on errors or
omissions committed in the course of litigation, and that
litigation proceeds to judgment, the statute of limitations
does not commence to run until the litigation is concluded by
final judgment. To be specific, we hold that the statute of
limitations does not commence to run until the final judgment
becomes final. [FN 2 - For instance, a judgment becomes final
either upon the expiration of the time for filing an appeal
or postjudgment motions, or, if an appeal is taken, upon the
appeal being affirmed and either the expiration of the time
for filing motions for rehearing or a denial of the motions
We therefore hold, in those cases that proceed to final
judgment, the two-year statute of limitations for
litigation-related malpractice under section 95.11(4)(a),
Florida Statutes (1997), begins to run when final judgment
becomes final. This bright-line rule will provide
certainty and reduce litigation over when the statute starts
to run. Without such a rule, the courts would be required to
make a factual determination on a case by case basis as to
when all the information necessary to establish the
enforceable right was discovered or should have been
Silvestrone v. Edell, 721 So.2d 1173, 1175-76 (Fla.
1998) (emphasis supplied). In Silvestrone, a jury
failed to award Silvestrone and his co-plaintiff significant
damages in an antitrust case. Because of post-trial motions
and attorney's fees issues, final judgment was not
rendered for two years resolving all issues, which was not
appealed. Silvestrone then filed a legal malpractice action
against his attorneys. The trial court found that the statute
of limitations ran from the date of the jury verdict, because
it was then that the plaintiffs knew of the inadequate damage
award and any legal ...