Monday, August 1, 2011

McLEOD v. BANKIER
ROBERT S. McLEOD, Appellant,

MARVIN ADAM BANKIER, an individual,

SCOTT ALLEN ELK, an individual,

ERIC CHRISTU, an individual,

and ELK BANKIER CHRISTU, P.A.,¹ Appellees.

No. 4D10-37.District Court of Appeal of Florida, Fourth District.

June 8, 2011.
Diane H. Tutt of Diane H. Tutt, P.A., Davie, and G. Ware Cornell, Jr., of Cornell & Associates, P.A., Weston, for appellant.
Robert M. Klein, Houston S. Park and Jeanette A. Bellon of Stephens Lynn Klein, P.L., West Palm Beach, for appellees, Marvin Adam Bankier, Eric Christu and Elk Bankier Christu, P.A.
Robert McLeod timely appeals the final summary judgment in favor of Marvin Adam Bankier, Eric Christu, and Elk Bankier Christu, P.A. (collectively "Elk Bankier"). We affirm because, as a matter of law, the trial court correctly determined that the applicable statute of limitations had expired before McLeod brought suit for legal malpractice against his former attorneys.
The following recitation constitutes the undisputed material facts upon which the trial court relied in reaching its conclusion. In 1998, McLeod hired attorney Thomas Tew to represent him in a claim against Fidelity Investments ("Fidelity") for executing a wrongful margin call on his securities account, which resulted in the liquidation of his account. That case was ultimately settled, and thesettlement agreement contained a general release in favor of Fidelity. Although not set forth in the settlement agreement, it was McLeod's understanding that his account balance would be restored to the status quo ante. When that did not occur, he began to express concerns to Tew that Fidelity had not returned the funds to his account. The funds were never returned, and, in March of 2000, Tew severed his representation of McLeod.
In December 2002, McLeod hired Elk Bankier to file a claim against Fidelity through the National Association of Securities Dealers ("NASD"). McLeod did not retain Elk Bankier to pursue a legal malpractice claim against Tew. Elk Bankier filed McLeod's claim through the NASD's arbitration process. In November 2003, the arbitration panel ruled in favor of Fidelity and against McLeod, dismissing McLeod's claim. Thereafter, Elk Bankier raised the possibility of McLeod suing Tew on a theory of professional negligence based on Tew's recommendation that McLeod sign the settlement agreement with Fidelity. The firm referred McLeod to another attorney who specialized in legal malpractice. That attorney advised McLeod that he had no valid claim against his former legal counsel. In February 2004, Elk Bankier ceased to represent McLeod.
In 2004, McLeod sought the legal services of attorney William Isenberg to continue pursuing his claim against Fidelity. Attorney Isenberg recommended pursuing a legal malpractice claim against Tew rather than pursuing an appeal of the NASD arbitration panel's ruling. McLeod ignored attorney Isenberg's advice and took no action against any of his former attorneys until his filing of the malpractice action against Elk Bankier in January of 2008.
In his complaint, McLeod alleged that Elk Bankier negligently allowed the two-year statute of limitations to expire on his legal malpractice claim against Tew. In its motion for summary judgment, Elk Bankier argued, among other things, that the two-year statute of limitations on McLeod's claim against Tew began to run on the date Tew terminated his relationship with McLeod (2000), but certainly no later than the date of the adverse NASD arbitration decision (2003). Accordingly, even under the most liberal application of the facts, McLeod had until November of 2005 to file an action against Tew.
Our standard of review on orders granting summary judgment is de novo. Furtado v. Yun Chung Law, 51 So.3d 1269, 1273 (Fla. 4th DCA 2011). Summary judgment should be granted `"only where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law.'" Id. at 1274 (quoting Cohen v. Arvin, 878 So.2d 403, 405 (Fla. 4th DCA 2004)).