POROLNICZAK v. ITKIN, 703 So.2d 519 (Fla.App. 4 Dist. 1997)

KENNETH A. POROLNICZAK, APPELLANT, v. PERRY S. ITKIN, ET AL., APPELLEES.

Case No. 97-0675District Court of Appeal of Florida, Fourth District.
Opinion filed December 24, 1997

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Miette K. Burnstein, Judge; L.T. Case No. 96-2635 21.

George H. Aslanian, Jr. of Aslanian Aslanian, Fort Lauderdale, for appellant.

No brief filed on behalf of appellees.

Page 520

PER CURIAM.

Appellant, Kenneth A. Porolniczak, initiated an action against appellees, his attorneys, alleging professional negligence in their representation of him in a marital dissolution proceeding. The undisputed record evidence demonstrated that appellant failed to take any steps to effect service of process upon appellees within 120 days after the filing of the complaint, as required by Florida Rule of Civil Procedure 1.070(i). As a result, the trial court properly dismissed appellant’s case. See Hodges v. Noel, 675 So.2d 248, 249 (Fla. 4th DCA 1996) (“trial court may not exercise its discretion to refuse to dismiss a case under rule 1.070(i) unless there is record evidence of efforts made at service during the 120 day service period which would support a finding of `good cause’ under the rule”). We therefore affirm the trial court’s order.[1]

STEVENSON, J., and MARRA, KENNETH A., Associate Judge, concur.

PARIENTE, BARBARA J., Associate Judge, concurs specially.

[1] We do not address the question of whether the statute of limitations has run on appellant’s claim for professional negligence against appellees. See Roger Zitrin, M.D., P.A. v.Glasser, 621 So.2d 748, 749 (Fla. 4th DCA 1993); Zakak v. Broidaand Napier, P.A., 545 So.2d 380, 381 (Fla. 2d DCA 1989) (when cause of action for legal malpractice is predicated on errors or omissions committed in course of litigation, statute of limitations does not begin to run until conclusion of that litigation by final judgment, or if appealed, until rendition of final appellate decision).

PARIENTE, BARBARA J., Associate Judge, concurring specially.

I concur in an affirmance for the same reasons stated in my special concurrence in Patterson v. Loewenstein, 686 So.2d 776, 777-78 (Fla. 4th DCA 1997). As I expressed in Patterson, however, I disagree with the hard-and-fast rule enunciated by this court inHodges v. Noel, 675 So.2d 248 (Fla. 4th DCA 1996). In addition, if Florida Rule of Civil Procedure 1.070(j) (1997)[2] were revised as set forth in my special concurrences in Taco Bell Corp.v. Costanza, 686 So.2d 773, 773-74 (Fla. 4th DCA 1997), andO’Leary v. MacDonald, 657 So.2d 81, 81-82 (Fla. 4th DCA 1995), the trial court would have flexibility in cases such as this one to fulfill the purpose of the rule as a case management tool, without the harsh effects caused by a mechanical application. SeePatterson, 686 So.2d at 778.

[2] As a result of the 1996 amendments to the rules, Florida Rule of Civil Procedure 1.070(i) (1996) was redesignated as Florida Rule of Civil Procedure 1.070(j) (1997). See In reAmendments to Florida Rules of Civil Procedure, 682 So.2d 105
(Fla. 1996).

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