What is the statute of limitations for a legal malpractice claim in Florida?

§ 95.11. Limitations other than for the recovery of real property

Actions other than for recovery of real property shall be commenced as follows:

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(4) WITHIN TWO YEARS.-

(a) An action for professional malpractice, other than medical malpractice, whether founded on contract or tort; provided that the period of limitations shall run from the time the cause of action is discovered or should have been discovered with the exercise of due diligence. However, the limitation of actions herein for professional malpractice shall be limited to persons in privity with the professional.

The law is not clear as to when the limitations period for legal malpractice in a litigation-related context begins to run. Section 95.11(4)(a), Florida Statutes (1997), provides in pertinent part:

Actions other than for recovery of real property shall be commenced as follows:

(4) WITHIN TWO YEARS.—

(a) An action for professional malpractice... whether founded on contract or tort; provided that the period of limitations shall run from the time the cause of action is discovered or should have been discovered with the exercise of due diligence.

After reviewing this section, we agree with the reasoning of the Second District Court of Appeal that when 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.²

While the statute of limitations may be raised as an affirmative defense in a motion to dismiss for failure to state a claim, it is successfully raised "only where its violation appears on the face of the complaint or its exhibits." Toledo Park Homes v. Grant, 447 So.2d 343, 344 (Fla. 4th DCA 1984) (citing

[274 So.3d 1194]

Estate of James v. Martin Mem'l Hosp., 422 So.2d 1043, 1045 (Fla. 4th DCA 1982)). The statute of limitations for legal malpractice is two years "provided that the period of limitations shall run from the time the cause of action is discovered or should have been discovered with the exercise of due diligence." § 95.11(4)(a), Fla. Stat. (2014). The statute of limitations begins to run when the cause of action accrues. § 95.031, Fla. Stat. (2014). This occurs "when the last element constituting the cause of action occurs." § 95.031(1), Fla. Stat. (2014).¹ In this case, the cause of action accrued on the date the Enlow's appeal was dismissed. This date, however, was not included in the complaint or its attachments, nor was it incorporated by reference. See Landmark Funding, Inc. ex rel. Naples Syndications, LLC v. Chaluts, 213 So.3d 1078, 1079–80 (Fla. 2d DCA 2017); Neapolitan Enters., LLC v. City of Naples, 185 So.3d 585, 589–90 (Fla. 2d DCA 2016); State v. Beach Blvd. Auto. Inc., 139 So.3d 380, 387 (Fla. 1st DCA 2014); cf. One Call Prop. Servs. Inc. v. Sec. First Ins. Co., 165 So.3d 749, 752 (Fla. 4th DCA 2015) ("But where the terms of a legal document are impliedly incorporated by reference into the complaint, the trial court may consider the contents of the document in ruling on a motion to dismiss." (citing Veal v. Voyager Prop. & Cas. Ins. Co., 51 So.3d 1246, 1249 (Fla. 2d DCA 2011))). Instead, it was included in a document attached to the motion to dismiss that was improperly relied upon by the court. See Busch, 219 So.3d at 94 (citing Morin, 963 So.2d at 260); Sunderman, 201 So.3d at 141.

Because nothing within the four corners of the complaint conclusively showed that the statute of limitations had run on the Enlows' malpractice claim, it was error to grant the motion to dismiss on those grounds.

The statute of limitations governing legal malpractice actions is section 95.11(4)(a), Florida Statutes (2008). See Peat, Marwick, Mitchell & Co. v. Lane, 565 So.2d 1323, 1325 (Fla.1990). Section 95.11(4)(a), provides in pertinent part:

(4) WITHIN TWO YEARS.—

(a) An action for professional malpractice, other than medical malpractice, whether founded on contract or tort; provided that the period of limitations shall run from the time the cause of action is discovered or should have been discovered with the exercise of due diligence.

For purposes of determining when the limitations period begins to run, section 95.031(1), Florida Statutes (2008), provides that “[a] cause of action accrues when the last element constituting the cause of action occurs.”

A legal malpractice action has three elements: 1) the attorney's employment; 2) the attorney's neglect of a reasonable duty; and 3) the attorney's negligence as the proximate cause of loss to the client. Law Office of David J. Stern, P.A. v. Sec. Natl. Servicing Corp., 969 So.2d 962, 966 (Fla.2007) (citing Kates v. Robinson, 786 So.2d 61, 64 (Fla. 4th DCA 2001)).

The Florida Supreme Court recognized that “[g]enerally, a cause of action for negligence does not accrue until the existence of a redressable harm or injury has been established and the injured party knows or should know of either the injury or the negligent act.” Peat, Marwick, 565 So.2d at 1325; Glucksman v. Persol N. Am., Inc., 813 So.2d 122, 125 (Fla. 4th DCA 2002).

The statute of limitations requires that a legal malpractice action on a litigation-related claim be brought within two years after the cause of action is or should have been discovered, § 95.11(4)(a), Fla. Stat. (2002), and in Silvestrone we drew the line of accrual at the time final judgment was final to "provide certainty and reduce litigation over when the statute starts to run." Silvestrone, 721 So.2d at 1176.⁴

[22 So.3d 42]

Until a final judgment is final, the outcome of the case and the occurrence of harm to the client remains uncertain, and it cannot be said that the cause of action was discovered or should have been discovered. See id. at 1175. Before that point is reached, the "malpractice claim is hypothetical and damages are speculative." Id. But once a judgment adverse to the client has reached the point of finality, "the last element constituting the [malpractice] cause of action occurs," § 95.031(1), Fla. Stat. (2002)— that is, the element of "loss to the client," Law Office of David J. Stern, P.A., 969 So.2d at 966—and the cause of action is or should be "discovered," § 95.11(4)(a), Fla. Stat. (2002).

TSE's argument that we should employ the continuous representation doctrine to toll the statute of limitations founders not only on our decision in Kelley but also on the text of section 95.051, Florida Statutes (2002), which restricts the circumstances under which statutes of limitations may be tolled. Section 95.051(1) contains a list of specific circumstances in which the running of the time under statutes of limitations (subject to the exception of certain statutes) is tolled. The existence of an ongoing attorney-client relationship is not on that list. (Nor is the existence of any other ongoing professional-client relationship.) Section 95.051(2) provides that "[n]o disability or other reason shall toll the running of any statute of limitations" except as specifically authorized by statute. See Hearndon v. Graham, 767 So.2d 1179, 1185 (Fla.2000) ("[T]he tolling statute specifically precludes application of any tolling provision not specifically provided therein."). Accordingly, in the absence of a specific statutory authorization for doing so, we are precluded from tolling the statute of limitations based on the continuous representation doctrine.

In sum, the position urged by TSE and the analysis employed by the Second District are wholly detached from the governing statute, which ties the running of the limitations period for lawyer malpractice claims to "the time the cause of action is discovered or should have been discovered." § 95.11(4)(a).⁶ The policy considerations advanced by TSE and the Second District—whatever their merits may be— cannot be allowed to defeat the policy choice which is embodied in the statutory text enacted by the Legislature.

§ 95.051. When limitations tolled

(1) The running of the time under any statute of limitations except ss. 95.281, 95.35, and 95.36 is tolled by:

(a) Absence from the state of the person to be sued.

(b) Use by the person to be sued of a false name that is unknown to the person entitled to sue so that process cannot be served on the person to be sued.

(c) Concealment in the state of the person to be sued so that process cannot be served on him or her.

(d) The adjudicated incapacity, before the cause of action accrued, of the person entitled to sue. In any event, the action must be begun within 7 years after the act, event, or occurrence giving rise to the cause of action.

(e) Voluntary payments by the alleged father of the child in paternity actions during the time of the payments.

(f) The payment of any part of the principal or interest of any obligation or liability founded on a written instrument.

(g) The pendency of any arbitral proceeding pertaining to a dispute that is the subject of the action.

(h) The period of an intervening bankruptcy tolls the expiration period of a tax certificate under s. 197.482 and any proceeding or process under chapter 197.

(i) The minority or previously adjudicated incapacity of the person entitled to sue during any period of time in which a parent, guardian, or guardian ad litem does not exist, has an interest adverse to the minor or incapacitated person, or is adjudicated to be incapacitated to sue; except with respect to the statute of limitations for a claim for medical malpractice as provided in s. 95.11. In any event, the action must be begun within 7 years after the act, event, or occurrence giving rise to the cause of action.

Paragraphs (a)-(c) shall not apply if service of process or service by publication can be made in a manner sufficient to confer jurisdiction to grant the relief sought. This section shall not be construed to limit the ability of any person to initiate an action within 30 days after the lifting of an automatic stay issued in a bankruptcy action as is provided in 11 U.S.C. s. 108(c).

(2) A disability or other reason does not toll the running of any statute of limitations except those specified in this section, s. 95.091, the Florida Probate Code, or the Florida Guardianship Law.