Weisser v. Dolan , 253 So. 3d 49 ( 2017 )

Third District Court of Appeal
State of Florida
Opinion filed November 29, 2017.
Not final until disposition of timely filed motion for rehearing.
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No. 3D17-123
Lower Tribunal No. 14-23500
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Jason Weisser, Esq., et al., and Paulo Vasallo,
Appellants,
vs.
Richard Dolan, Esq., et al.,
Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Barbara Areces,
Judge.
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letter to Vasallo informing him that: (1) the Dolan Defendants would no longer
represent him; (2) the Dolan Defendants learned in September 2013, that Puerto
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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
1See P.R. Laws Ann. tit. 31, § 5298(2) (2011).
2It is disputed whether the scope of the Schuler Defendants’ representation of
Vasallo also included investigation of Vasallo’s personal injury action in Puerto
Rico.
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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
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extrajudicially tolled the one-year statute of limitations period. Id. at 571. The trial
court determined that Mr. Dolan’s letter was sufficiently similar to the letter sent in
Sánchez Montalvo, and therefore, entered final summary judgment in favor of the
Dolan Defendants. This appeal followed.
Analysis
This Court reviews summary judgment orders de novo, and summary
judgment is only appropriate if there are no genuine issues of material fact and the
moving party is entitled to judgment as a matter of law. Volusia Cty. v. Aberdeen
at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000).
It is well settled that a cause of action for legal malpractice has three
elements: “(1) the attorney’s employment; (2) the attorney’s neglect of a
reasonable duty; and (3) the attorney’s negligence resulted in and was the
proximate cause of the loss to the client.” Sure Snap Corp. v. Baena, 705 So. 2d
46, 48 (Fla. 3d DCA 1997). A lawyer owes a duty to a client to “exercise the
degree of reasonable knowledge and skill which lawyers of ordinary ability and
skill possess and exercise.” Home Furniture Depot, Inc. v. Entevor AB, 753 So. 2d
653, 655 (Fla. 4th DCA 2000). In this case, Vasallo alleged that the Dolan
Defendants were negligent in their representation by permitting the one-year
statute of limitation to lapse, and that the Dolan Defendants’ negligence resulted in
and was the proximate cause of the harm he suffered because he lost his right to
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file a personal injury claim against the homeowners in Puerto Rico. However, as a
matter of law, the Dolan Defendants did not permit the statute of limitations to
lapse.
We conclude that the trial court correctly determined that Mr. Dolan’s initial
September 11, 2012 letter to the homeowners’ insurer constituted an extrajudicial
claim, thereby tolling the statute of limitations, and that the subsequent letters
further tolled the statute of limitations until after the Dolan Defendants’ withdrawal
from their representation of Vasallo. In Galib Frangie v. El Vocero de P.R., 138
D.P.R. 560, 567 (P.R. Offic. Trans. 1995), the Puerto Rico Supreme Court held
that “[t]he tolling requirements for an extrajudicial claim are: (a) opportunity or
timeliness, which requires that the action be filed before the limitation period runs
out; (b) standing, is what gives a party the right to file an action; (c) identity,
means that the action must exactly correspond to the right affected by the statute of
limitations; and (d) fitness of the means employed.”
In Sánchez Montalvo, the Puerto Rico Supreme Court found that all of the
requirements of an extrajudicial act had been met for the letter to the defendant’s
liability insurer because the claimant’s counsel informed the insurer: (1) that he
represented the plaintiff; (2) that the plaintiff had suffered an accident on the
premises; (3) of the date of the incident; and (4) that the plaintiff was receiving
treatment. Sánchez Montalvo, 153 D.P.R. at 571.
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In the instant case, based on the trial court’s determination that Mr. Dolan’s
initial September 11, 2012 letter tolled the statute of limitations, and that the
subsequent letters further tolled the statute until April 11, 2014, Vasallo still had a
viable personal injury claim against the homeowners after the Dolan Defendants
withdrew from representation. Thus, even though the Dolan Defendants may not
have been aware that they had tolled the statute of limitations in Puerto Rico
during their representation of Vasallo, the Dolan Defendants had, in fact,
successfully tolled the statute of limitations in Puerto Rico during their
representation of Vasallo, and the statute of limitations did not run until three
months after their withdrawal from representation.
Conclusion
Because Vasallo only alleged that the Dolan Defendants were negligent by
allowing the statute of limitations to run, we find that the trial court did not err as a
matter of law by entering final summary judgment in favor of the Dolan
Defendants due to their successful tolling of the statute of limitations prior to their
withdrawal as Vasallo’s counsel. We, therefore, affirm the trial court’s order
granting the Dolan Defendants’ motion for summary judgment.
Affirmed.
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