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Weisser v. Dolan

Florida Court of Appeals, Third District

November 29, 2017

Jason Weisser, Esq., et al., and Paulo Vasallo, Appellants,
v.
Richard Dolan, Esq., et al., Appellees.

          Not final until disposition of timely filed motion for rehearing.

          An Appeal from the Circuit Court for Miami-Dade County, Barbara Areces, Judge. Lower Tribunal No. 14-23500

          Freeborn and Peters LLP, and Lawrence P. Ingram and Robert Stines (Tampa), for appellants Jason Weisser, Esq., et al.; Wasson & Associates, Chartered, and Roy D. Wasson, for appellant Paulo Vasallo.

          Klein Glasser Park & Lowe, P.L., and Robert M. Klein, Andrew M. Feldman, and Alex A. Diaz for appellees.

          Before ROTHENBERG, C.J., and FERNANDEZ and LUCK, JJ.

          ROTHENBERG, C.J.

          In this legal malpractice case, defendants Jason Weisser, Esq., and Schuler, Halvorson, Weisser, Zoeller, and Overbeck, P.A. (collectively, "the Shuler Defendants"), and the plaintiff below, Paulo Vasallo ("Vasallo"), appeal a final summary judgment entered in favor of defendants Richard Dolan, Esq. ("Mr. Dolan"), and other associated defendants (collectively, "the Dolan Defendants"). Because the undisputed material facts entitled the Dolan Defendants to a judgment as a matter of law, we find that the trial court properly entered final summary judgment in favor of the Dolan Defendants, and thus, we affirm.

         Background

         Vasallo fell while pressure washing a roof in San Juan, Puerto Rico, on October 4, 2011, rendering him a paraplegic. Vasallo retained the Dolan Defendants on August 8, 2012 to pursue his personal injury action against the homeowners. Mr. Dolan sent a letter to the homeowners' insurance company on September 11, 2012, stating that he represented Vasallo in connection with a claim for personal injuries and requested information relating to the homeowners' insurance policy. Mr. Dolan sent two similar letters on November 15, 2012 and April 11, 2013.

         On January 10, 2014, over two years after the accident, Mr. Dolan sent a letter to Vasallo informing him that: (1) the Dolan Defendants would no longer represent him; (2) the Dolan Defendants learned in September 2013, that Puerto Rico had a one-year personal injury statute of limitations;[1] and (3) Vasallo should seek legal advice from another attorney.

         After terminating his representation of Vasallo, Mr. Dolan received a letter from the Schuler Defendants on January 29, 2014, informing him that Vasallo had retained the Schuler Defendants to file a legal malpractice claim against the Dolan Defendants.[2] On June 18, 2014, the Schuler Defendants, however, sent a letter to Vasallo informing him that the Schuler Defendants would not pursue a legal malpractice action against the Dolan Defendants because there was no evidence of a viable negligence claim against the homeowners, and thus, the Shuler defendants were terminating their representation of Vasallo.

         Thereafter, Vasallo hired new counsel and filed a legal malpractice suit against the Dolan Defendants for negligently permitting the statute of limitations on his personal injury action in Puerto Rico to lapse. The Dolan Defendants moved for summary judgment, arguing that, as a matter of law, they did not cause any of Vasallo's damages because, as a result of the letters Mr. Dolan had sent to the homeowners' insurer, the statute of limitations had been tolled and had not run during their representation of Vasallo. The Dolan Defendants relied on the following tolling provision under Puerto Rican law: "Prescription of actions is interrupted by their institution before the courts, by extrajudicial claim of the creditor, and by any act of acknowledgment of the debt by the debtor." P.R. Laws Ann. tit. 31, § 5303 (2011). Based on this tolling provision, the Dolan Defendants argued that Mr. Dolan's initial September 11, 2012 letter to the homeowners' insurance company constituted an extrajudicial claim, which tolled the one-year statute of limitations for an additional year, and the subsequent letters further tolled the statute of limitations until April 11, 2014.

         After the Dolan Defendants moved for summary judgment, Vasallo amended his complaint to add the Schuler Defendants and to assert a claim against them for legal malpractice. Thereafter, the Schuler Defendants filed a memorandum in opposition to the Dolan Defendants' motion for summary judgment and a cross-motion for summary judgment as to Vasallo's legal malpractice claim against the Schuler Defendants.

         After conducting a hearing, the trial court found that the initial September 11, 2012 letter sent by Mr. Dolan constituted an extrajudicial claim, tolling the one-year statute of limitations. In reaching this conclusion, the trial court specifically relied on Sánchez Montalvo v. Autoridad de los Puertos, 153 D.P.R. 559 (P.R. Offic. Trans. 2001). In Sánchez Montalvo, an injured claimant's lawyer sent a letter to a putative defendant's liability insurer, which the Puerto Rico Supreme Court found put the insured on notice of a potential claim and extrajudicially tolled the one-year statute of limitations period. Id. at 571. The trial court determined that Mr. ...


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