42
Fla. L. Weekly D2500aTop of Form

Torts
— Legal malpractice — Trial court properly entered summary judgment for
defendant attorney in action alleging that defendant negligently permitted the
statute of limitations on plaintiff’s personal injury action against homeowners
in Puerto Rico to lapse where defendant’s letter to homeowners’ insurer
constituted an extrajudicial act which tolled statute of limitations under
Puerto Rico law, and defendant’s subsequent letters further tolled statute of
limitations until after defendant withdrew from representation of plaintiff

JASON WEISSER, ESQ., et al., and
PAULO VASALLO, Appellants, v. RICHARD DOLAN, ESQ., et al., Appellees. 3rd
District. Case No. 3D17-123. L.T. Case No. 14-23500. November 29, 2017. An
Appeal from the Circuit Court for Miami-Dade County, Barbara Areces, Judge.
Counsel: 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. 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
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.

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.

__________________

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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