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Eastman v. Flor-Ohio9/17/1999
issed. This fact was vital to the success of trial counsel's abandonment theory because it was clear to the third district that, had the insurance company prosecuted its appeal in the personal injury lawsuit, reversal of the judgment entered against the insurance company would have been required because the trial court had erred in ruling that the insurance company's pleadings were inadequate. In so ruling, the third district specifically concluded that the insurance company's trial counsel had not been negligent in drafting the pleadings. We agree with the third district that this concept of abandonment can be applied only in limited circumstances where facts similar to those which existed in Sikes are presented. See also Segall v. Segall, 632 So. 2d 76 (Fla. 3d DCA 1993)(affirming the court's refusal to establish a bright line rule requiring complete appellate review as a condition precedent for pursuit of a subsequent legal malpractice action, and admonishing that not every legal malpractice plaintiff is required to prosecute an appeal of the underlying action to Conclusion before asserting a claim for legal malpractice.)
Other courts have recognized and discussed the limited application of this abandonment theory. See Coble v. Aronson, 647 So. 2d 968 (Fla. 4th DCA 1994), rev. denied sub nom. Fine, Jacobson, Schwartz, Nash, Block & England, P.A. v. Coble, 659 So. 2d 1086 (Fla. 1995); see also Roger Zitrin, M.D., P.A. v. Glaser, 621 So. 2d 748 (Fla. 4th DCA 1993). In Lenahan v. Russell L. Forkey, P.A., 702 So. 2d 610, 611 (Fla. 4th DCA 1997), the fourth district joined the third district in declining to articulate a bright line test for application of the abandonment rule, pointing out that only in "very narrow" circumstances should it be applied as a matter of law. See also Parker v. Graham & James, 715 So. 2d 1047 (Fla. 3d DCA 1998).
Applying this case law to the instant facts, we note first that the law firm invites this court to depart from the historically narrow application of the abandonment theory and adopt a bright line rule that, as a condition precedent to the filing of an action for legal malpractice based upon allegedly negligent trial representation, the plaintiff must establish that he filed and unsuccessfully prosecuted an appeal involving the adverse judgment entered in the related litigation. In making this argument the law firm relies in part on language set forth by the supreme court in Peat, Marwick, Mitchell & Co. v. Lane, 565 So. 2d 1323 (Fla. 1990).
The Peat, Marwick opinion focused on the question of when causes of action for professional malpractice arise for purposes of determining when the statute of limitations commences to run. The specific issue before the court was "whether the commencement of the limitations period in an accounting malpractice action relating to income tax preparation occur with the receipt of a 'Ninety-Day Letter' or with the Conclusion of the appeals process, under circumstances where the accountant disagree with the IRS's determination." Id. at 1325. In deciding that the statute of limitations commenced to run only upon the stipulated order issued by the tax court because that is when redressable harm occurred, the Florida supreme court relied on decisions issued by the district courts involving legal malpractice. These cases held that a cause of action for legal malpractice does not accrue until the underlying legal proceeding has been concluded on appeal. See Peat, Marwick at 1325 (citing Zakak v. Broida & Napier, P.A., 545 So. 2d 380 (Fla. 2d DCA 1989). In so ruling, the courts reasoned that, until Conclusion of the appeal, it cannot be determined whether there was "actionable error by the attorney." Id. It is
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