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explaining it is not the court's role to rewrite the terms of a contract
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Case No. 2D19-1002
10-21-2020
Stephen J. WATTS, Appellant, v. Nicole L. GOETZ and Nicole L. Goetz, P.L., Appellees.
Kristin A. Norse and Stuart C. Markman of Kynes, Markman & Felman, P.A., Tampa, for Appellant. Amy L. Christiansen and Michael J. McGirney of Spector Gaden Rosen Vinci LLP, St. Petersburg, for Appellees.
Kristin A. Norse and Stuart C. Markman of Kynes, Markman & Felman, P.A., Tampa, for Appellant.
Amy L. Christiansen and Michael J. McGirney of Spector Gaden Rosen Vinci LLP, St. Petersburg, for Appellees.
SMITH, Judge.
Stephen Watts appeals the final summary judgment entered in favor of his former attorney, Nicole Goetz, and her law firm Nicole L. Goetz, P.L. (collectively "Goetz"), in this legal malpractice action arising out of a mediated settlement agreement (MSA) in his divorce. The trial court erred by finding, as a matter of law, Goetz could not have committed malpractice in failing to include a supportive relationship clause in the MSA because the parties were bound by the terms of their unchallenged prenuptial agreement in the divorce proceeding and that the statute of limitations began to run on Mr. Watts' legal malpractice claim when he signed the MSA. Because we reverse on these dispositive issues and remand for further proceedings, we decline to address the issues that remain.
I.
Mr. Watts and his former wife were married in Massachusetts on September 8, 2000. Prior to their marriage, on September 6, 2000, they entered into a prenuptial agreement, both parties being represented by counsel. Mr. Watts and his former wife moved to Florida in 2002, and they filed for divorce in 2012 after twelve years of marriage.
The alimony provision of the prenuptial agreement contained a contingency that required the parties' marriage to last at least one year. Upon the marriage lasting that one year, the former wife would be entitled to $100,000 in alimony per year for a duration equal to the number of years of the marriage. The alimony provision also allowed for cost of living adjustments (COLA). According to the prenuptial agreement, the alimony obligation would terminate upon the earlier of any of the following events: Mr. Watts' death, his former wife's death, the former wife's remarriage, or the expiration of the alimony duration period. The alimony provision, like the other provisions of the prenuptial agreement, was capable of being "modified or revoked but only by a written instrument executed by the parties," as set forth in Article II(C)(2) of the prenuptial agreement.
In 2012, Mr. Watts and his former wife filed for divorce and Mr. Watts retained attorney Goetz to represent him in the dissolution proceedings, which included review of his prenuptial agreement. Because the prenuptial agreement contained a Massachusetts choice of law provision, attorney Goetz consulted with a Massachusetts lawyer, who confirmed that the agreement, as it stated, could only be modified if agreed to in writing by the parties. Thereafter, on February 6, 2014, attorney Goetz represented Mr. Watts at the mediation where the parties renegotiated the terms of the prenuptial agreement, including the alimony provision, and entered into the MSA, agreeing to Florida as the choice of law.
The MSA includes an alimony provision similar to the one in the prenuptial agreement and provides that Mr. Watts will pay durational alimony in the amount of $100,000 per year for a period not to exceed twelve years. According to the MSA, the durational alimony will terminate earlier in the event of either the death of Mr. Watts or his former wife or the former wife's remarriage. There were, however, two key distinctions between the alimony provision in the MSA and the one in the prenuptial agreement.
First, the alimony provision in the MSA, unlike the prenuptial agreement, does not allow for the modification of alimony upon written agreement of the parties but instead contains a waiver of the parties' rights to modify the alimony obligation as to duration and amount, except in two specific circumstances, neither of which include the former wife's entering a supportive relationship. The waiver provides:
Except as set forth herein, the parties specifically waive all rights to modification of any kind whether as to amount or duration of the spousal support (alimony) payments set forth in this Agreement for any reasons whatsoever, except in the event of [Mr. Watts'] or [the former wife's] total or partial disability, or [Mr. Watts'] bankruptcy.
Second, unlike the alimony provision in the prenuptial agreement, there is no COLA provision in the MSA for the following reason: "[b]ased upon the parties' agreement of non-modifiability and Paragraph 9.1 [of the MSA,] the COLA provision [in the prenuptial agreement] is waived." Paragraph 9.1 of the MSA provides:
Novation on Terms of Prenuptial Agreement: The terms and conditions of this agreement shall supersede and replace the terms and conditions of the parties' Prenuptial Agreement dated September 6, 2000.
The MSA was incorporated into the final judgment of dissolution, which was rendered on April 15, 2014. Approximately one year later, sometime in the spring of 2015, the former wife moved in with her boyfriend. In March 2016, Mr. Watts learned that his former wife was expecting a child with her boyfriend and that the two had no plans to marry. Later that same month, in March 2016, Mr. Watts sought the legal advice of another family law attorney about his ability to modify or terminate his alimony obligation based on the former wife's cohabitation with her boyfriend. This attorney told Mr. Watts that while Florida law allows for alimony to be reduced or terminated when a supportive relationship can be established, the terms of Mr. Watts' MSA prohibited such relief. The Florida law regarding supportive relationships was in effect at the time the MSA was executed. See § 61.14(1)(b)(1), Fla. Stat. (2014) ("The court may reduce or terminate an award of alimony upon specific written findings by the court that since the granting of a divorce and the award of alimony a supportive relationship has existed between the obligee and a person with whom the obligee resides."). After learning that the MSA precluded a reduction or termination of his alimony obligation based on his former wife's supportive relationship, Mr. Watts made an appointment to discuss the MSA with attorney Goetz. According to the summary judgment evidence identified by Mr. Watts, which we must accept as true, attorney Goetz admitted to not having discussed the inclusion of a supportive relationship clause with Mr. Watts; she apologized, saying she was not sure why a supportive relationship clause was left out of the MSA. Mr. Watts' summary judgment evidence further revealed that both attorney Goetz and her paralegal testified in their depositions that it was standard in Goetz's family law practice to include a supportive relationship clause in MSAs and that Goetz's first draft of Mr. Watts' MSA included a supportive relationship clause.
Mr. Watts and his former wife executed the prenuptial agreement in 2000 while they were living in Massachusetts, and in 2000, Massachusetts did not recognize a supportive relationship as a basis for the termination or modification of alimony. See Chin v. Merriot, 470 Mass. 527, 23 N.E.3d 929, 931 (2015). It was not until March 1, 2012, that the Alimony Reform Act of 2011, St. 2011, c. 124, was made effective in Massachusetts and recognized for the first time that a former spouse's cohabitation could be a basis for the termination of alimony. See G.L.C. 208. § 49 (d). Mr. Watts and his former wife moved to Florida in 2002.
Attorney Goetz testified in her deposition that when she first spoke to Mr. Watts about the MSA not including a supportive relationship clause, she could not recall why the MSA did not include the clause and needed to refer to her records to refresh her memory.
Mr. Watts commenced the instant legal malpractice action against Goetz on April 24, 2017, alleging she breached her duty of care by not including a supportive relationship clause in the MSA, which could have allowed Mr. Watts to reduce or terminate his durational alimony obligation when his former wife moved in with her boyfriend and by making the MSA's alimony provision nonmodifiable, except in the event of the parties' disability or Mr. Watts' bankruptcy, thereby further precluding any ability to modify the alimony provision based upon a supportive relationship under section 61.14.
Goetz sought a dismissal of the legal malpractice action and, when that was denied, summary judgment. Both motions made the same two arguments. First, Goetz argued, as a matter of law, she could not have committed legal malpractice for failing to include a supportive relationship clause in the MSA because Mr. Watts was bound by the nonmodifiable prenuptial agreement, which expressly provided that alimony was only terminable on the event of Mr. Watts' death, the former wife's death, or the former wife's remarriage. Second, Goetz argued Mr. Watts' complaint was barred by the two-year statute of limitations for legal malpractice claims under section 95.11(4)(a), Florida Statutes (2014), because it was filed more than two years after he signed the MSA that did not include a supportive relationship clause. In support of her motion for summary judgment, Goetz attached only the prenuptial agreement and the MSA. Mr. Watts filed a memorandum in opposition to Goetz's motion for summary judgment, together with a number of deposition transcripts. Ms. Goetz did not present any summary judgment evidence to rebut the depositions filed by Mr. Watts.
After hearing argument on the motion for summary judgment, the trial court found:
Number one, ... it's impossible, unless you are challenging the validity of the prenup, to make changes to a prenuptial agreement. So it is therefore, impossible that [attorney Goetz] made this mistake because the alimony is nonmodifiable.... Secondly, I agree that I think the statute of limitations has run.
The trial court explained its ruling on the statute of limitations saying: "[Mr. Watts] should have known [of the mistake] immediately when he signed the agreement." Consistent with these findings, the trial court entered its final judgment:
2. The Court finds that the Pre-Nuptial Agreement signed by the Plaintiff and his ex-wife in 2000 was not challenged and was, therefore, controlling in the case and the Plaintiff cannot state a cause of action in this matter for malpractice.
3. The Court also finds that the Plaintiff did not timely file this action for malpractice within the statutory period stated in the statute of limitations for legal malpractice and the Plaintiff's malpractice action is barred.
This appeal followed.
II.
We review the order granting final summary judgment de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). A movant is entitled to summary judgment only where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Id. "In considering a motion for summary judgment, the court must draw every possible inference in favor of the nonmoving party." Athans v. Soble, 553 So. 2d 1361, 1362 (Fla. 2d DCA 1989) (citing Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985) ). "Where the record reflects the possibility or slightest doubt that an issue exists, summary judgment is improper." Id. at 1362-63 (citing Gomes v. Stevens, 548 So. 2d 1163, 1164 (Fla. 2d DCA 1989) ). "Summary judgments should be cautiously granted in negligence and malpractice suits." Davis v. Green, 625 So. 2d 130, 131 (Fla. 4th DCA 1993) ; see also Pitcher v. Zappitell, 160 So. 3d 145, 147 (Fla. 4th DCA 2015) ("A party seeking summary judgment in a negligence action has a more onerous burden than that borne in other types of cases." (quoting Deese v. McKinnonville Hunting Club, Inc., 874 So. 2d 1282, 1286 (Fla. 1st DCA 2004) )).
III.
The trial court found that, as a matter of law, attorney Goetz could not have been negligent for failing to include a supportive relationship clause in the MSA where modification of the prenuptial agreement was an "impossibility" because the prenuptial agreement was not challenged in the divorce proceedings. Mr. Watts argues on appeal that Goetz failed to show she caused no actionable harm for legal malpractice, thereby precluding summary judgment, and we agree.
The prenuptial agreement was, as argued by Mr. Watts, capable of being modified by the written agreement of the parties or, as Goetz puts it, the prenuptial agreement was nonmodifiable except by written agreement of the parties. Stated either way, the parties were free to renegotiate the terms of the prenuptial agreement, including the alimony provision, so long as they ultimately took pen to paper and executed a written agreement modifying the same. And because actions sometimes speak louder than words, we know that the parties did in fact renegotiate the terms of the alimony provision in the prenuptial agreement as indicated by the different terms included in the MSA, discussed above. Under Florida law "[v]alid prenuptial agreements regarding post-dissolution [sic] support are contracts." Lashkajani v. Lashkajani, 911 So. 2d 1154, 1158 (Fla. 2005). Prenuptial agreements and marital settlement agreements are to be construed in the same manner as any other contract. Suess v. Suess, 289 So. 3d 525, 529 (Fla. 2d DCA 2019) ; Heiny v. Heiny, 113 So. 3d 897, 900 (Fla. 2d DCA 2013). In construing a contract, a trial court's role is not to rewrite the terms of the contract, but rather to give effect to all of its terms as agreed to by the parties. Nishman v. Stein, 292 So. 3d 1277, 1280 (Fla. 2d DCA 2020) ("Unless there is evidence of the parties' intent to the contrary, the unambiguous language of the agreement should be interpreted according to its plain meaning.").
Because we find the prenuptial agreement was modifiable subject to the written agreement of the parties, we find no merit in Goetz's argument that it could not be modified to include a supportive relationship clause where none existed before.
Florida law governed once the parties undertook to modify the terms of the prenuptial agreement, as provided by the terms of the MSA, which expressly call for Florida Law to control the construction, interpretation, and effect of the MSA.
Because the parties mediated the MSA, they were not bound by the traditional relief a court may have awarded but were free to craft their own resolution on their terms. Herbst v. Herbst, 153 So. 3d 290, 292 (Fla. 2d DCA 2014) (noting the well-settled rule that parties to a dissolution of marriage proceeding "may enter into settlement agreements imposing obligations the trial court could not otherwise impose under the applicable statutes" (citing Taylor v. Lutz, 134 So. 3d 1146, 1148 (Fla. 1st DCA 2014) )). "[And it is the] well-established policy in Florida that settlement agreements are highly favored in the law." Chovan v. Chovan, 90 So. 3d 898, 900-01 (Fla. 4th DCA 2012) (alteration in original) (quoting Griffith v. Griffith, 860 So. 2d 1069, 1073 (Fla. 1st DCA 2003) ). This dynamic, while not raised by the parties, should not be overlooked.
We now direct our attention to the MSA. Here, the clear intention of Mr. Watts and his former wife to modify the prenuptial agreement is illustrated by the unambiguous language of the MSA, which expressly states it is a novation and that "[t]he terms and conditions of [the MSA] shall supersede and replace the terms and conditions of the [prenuptial agreement]." See, e.g., Jakobi v. Kings Creek Vill. Townhouse Ass'n, 665 So. 2d 325, 327 (Fla. 3d DCA 1995) ("A novation is a mutual agreement between the parties for the discharge of a valid existing obligation by the substitution of a new valid obligation." (citing Ades v. Bank of Montreal, 542 So. 2d 1013 (Fla. 3d DCA 1989) )). The MSA was submitted for the trial court's approval in the dissolution proceeding and was approved and incorporated into the final judgment of dissolution. Therefore, the trial court in the malpractice action below was required to give effect to the terms of the MSA, including the provision providing that it was a novation discharging any prior obligations under the prenuptial agreement. See Nishman, 292 So. 3d at 1280. By focusing on the parties' supposed inability to modify the prenuptial agreement because it was not challenged in the dissolution proceeding, the trial court disregarded the clear intent of the parties as expressed in the MSA.
Goetz also argues an alternative form of impossibility—that in order to prevail on his legal malpractice claim, Mr. Watts must prove that his former wife would have agreed to the inclusion of a supportive relationship clause. To the extent Goetz asserts that Mr. Watts was required to prove the former wife would have agreed to a supportive relationship clause or that any evidence he offered at the summary judgment hearing on the issue was speculative, she confuses the summary judgment standard and improperly attempts to shift the summary judgment burden to Mr. Watts, the nonmoving party. See Fla. R. Civ. P. 1.510(c). Goetz, as the moving party, bears the heavy burden on summary judgment to conclusively prove the nonexistence of any genuine issue of material fact. Holl v. Talcott, 191 So. 2d 40, 43-44 (Fla. 1966). Until Goetz successfully meets this burden, Mr. Watts, as the nonmoving party, has no burden to come forward with any evidence. See id. Based upon the record before us, Goetz was faced with an insurmountable task on summary judgment to show that, as a matter of law, she could not have committed malpractice in failing to include a supportive relationship clause based upon the terms of the prenuptial agreement. The undisputed facts here show Goetz concedes that the prenuptial agreement could be modified by the written agreement of the parties and that Mr. Watts and his former wife did in fact modify the prenuptial agreement, negotiate specific instances which would permit modification of the alimony in the future, and enter into the MSA, which expressly provided that it was a novation supplanting the prenuptial agreement.
Accordingly, summary judgment on the ground of "impossibility" was error.
IV.
Mr. Watts next argues the trial court erred in granting summary judgment based upon a finding that the two-year statute of limitation period commenced on the date of the MSA's execution because he did not suffer redressable injury on that date and there remain genuine issues of material fact as to when the statute of limitations began to run. We agree.
Generally, a statute of limitations begins to run when a cause of action accrues. See § 95.031, Fla. Stat. (2018). "A cause of action accrues when the last element constituting the cause of action occurs." § 95.031(1). There are three elements giving rise to a cause of action for legal malpractice: (1) the attorney's employment; (2) the attorney's neglect of a reasonable duty; and (3) the attorney's negligence was the proximate cause of loss to the client. See Rocco v. Glenn, Rasmussen, Fogarty & Hooker, P.A., 32 So. 3d 111, 116 (Fla. 2d DCA 2009). The third element of causation requires a plaintiff to "introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the result." Gooding v. Univ. Hosp. Bldg., Inc., 445 So. 2d 1015, 1018 (Fla. 1984) (quoting William L. Prosser, The Law of Torts § 41 (4th ed. 1971)); see also Tarleton v. Arnstein & Lehr, 719 So. 2d 325, 330 (Fla. 4th DCA 1998). Because legal malpractice actions are based upon acts of negligence, they are subject to a two-year statute of limitations, which "run[s] from the time the cause of action is discovered or should have been discovered with the exercise of due diligence." § 95.11(4)(a). "[T]he event which triggers the running of the statute of limitations is notice to or knowledge by the injured party that a cause of action has accrued in his favor, and not the date on which the negligent act which caused the damages was actually committed." Downing v. Vaine, 228 So. 2d 622, 625 (Fla. 1st DCA 1969) ("[I]t [is] impossible to rationalize how an injured client can be required to institute an action within a limited time after his cause of action accrues if he has no means of knowing by the exercise of reasonable diligence that the cause of action exists."); see also Peat, Marwick, Mitchell & Co. v. Lane, 565 So. 2d 1323, 1325 (Fla. 1990) ("Generally, 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.").
Relying only on the prenuptial agreement and the MSA, and nothing more, Goetz argues that any injury to Mr. Watts occurred on February 6, 2014—the day he signed the MSA that did not include a supportive relationship clause. According to Goetz, Mr. Watts should have known of the injury or negligent act on that day because under the basic principles of contract law, a party is presumed to know and understand what they signed. See Rocky Creek Ret. Props., Inc. v. Estate of Fox ex rel. Bank of Am., N.A., 19 So. 3d 1105, 1108 (Fla. 2d DCA 2009) ("Florida law has long held that a party to a contract is ‘conclusively presumed to know and understand the contents, terms, and conditions of the contract’ " (quoting Stonebraker v. Reliance Life Ins. Co. of Pittsburgh, 123 Fla. 244, 247, 166 So. 583 (1936) )); Mfrs' Leasing, Ltd. v. Fla. Dev. & Attractions, Inc., 330 So. 2d 171, 172 (Fla. 4th DCA 1976) ("A party has a duty to learn and know the contents of a proposed contract before he signs and delivers it, and in the absence of exceptions not pertinent here is presumed to know and understand its contents, terms, and conditions."). The trial court was so swayed and found the documents dispositive on the statute of limitations issue finding "[Mr. Watts] should have known immediately when he signed the agreement." We are not persuaded that these cases have application in the context of a legal malpractice action where a client retains an attorney for the purpose of protecting their legal rights in the negotiation of contractual terms, and we can find no case applying this principle to preclude a legal malpractice claim.
A lawyer owes to the client a duty to exercise the degree of reasonable knowledge and skill that 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). "[A]n attorney may be held liable for damages incurred by a client based on the attorney's failure to act with a reasonable degree of care, skill, and dispatch." Crosby v. Jones, 705 So. 2d 1356, 1358 (Fla. 1998). Florida law recognizes that a legal malpractice action may lie where the attorney commits negligence in advising a client to enter into a settlement agreement or errs in the drafting of a settlement agreement. See, e.g., MarElia v. Yanchuck, Berman Wadley & Zervos, P.A., 966 So. 2d 30 (Fla. 2d DCA 2007) (reversing final summary judgment in favor of attorneys holding genuine issues of fact remained related to attorneys' representation of client where client alleged attorneys failed to properly prepare settlement documents to reflect the settlement distribution they described to client); see also Miller v. Finizio & Finizio, P.A., 226 So. 3d 979, 983 (Fla. 4th DCA 2017) ("An attorney is not ‘insultated from liability for failing to exercise ordinary skill and care in resolving settlement issues.’ " (quoting Sauer v. Flanagan & Maniotis, P.A., 748 So. 2d 1079, 1082 (Fla. 4th DCA 2000) )); Hunzinger Const. Corp. v. Quarles & Brady Gen. P'ship, 735 So. 2d 589 (Fla. 4th DCA 1999) (reversing directed verdict on client's legal malpractice claim alleging a drafting error in the settlement agreement); Tarleton, 719 So. 2d at 331 (holding client cannot be found comparatively negligent for relying on attorney's advice to sign a marital settlement agreement that contained disadvantageous terms). An attorney's duty is not discharged or extinguished simply because the client voluntarily accepts and enters into a marital settlement agreement. Miller, 226 So. 3d at 982-83. ("Under Florida law, a client's mere acceptance of a settlement in a prior case does not automatically foreclose the client from bringing a malpractice suit against the attorney who handled the case.").
Once a client retains an attorney, "[a] client cannot be found to be comparatively negligent for relying on an attorney's erroneous legal advice or failing to correct errors of the attorney which involve the exercise of professional expertise." Tarleton, 719 So. 2d at 331. In Tarleton, the former wife brought a legal malpractice claim against the law firm who represented her in the settlement of her divorce where the marital settlement agreement, unbeknownst to the former wife, released a separate claim against the former husband, which she was advised survived. At trial the law firm was allowed to proceed on its theory of comparative negligence making the case that the former wife was a sophisticated business person and could have easily read the settlement agreement, which plainly gave up her right to pursue any claim against the former husband. Id. In striking down the comparative negligence portion of the jury's verdict, the appellate court reasoned that despite the wife being somewhat sophisticated in business, the law did "not impose upon her the burden to second guess her attorney's advice or to hire a second attorney to see if such advice was proper." Id. at 331.
Similarly here, Goetz seeks to excuse any legal malpractice claim by assigning blame to Mr. Watts for signing the MSA, arguing that the law presumes he understood what he signed and thus should have known of any malpractice when he signed the MSA, which clearly did not contain a supportive relationship clause. The fallacy in this argument is that Mr. Watts hired Goetz for that very purpose to properly advise him in connection with the renegotiation of his prenuptial agreement and the ultimate terms of the MSA. See Crosby, 705 So. 2d at 1359. In the context of his legal malpractice claim, Mr. Watts cannot be charged with knowing that after he signed his prenuptial agreement in 2000, Florida law, or for that matter Massachusetts law, recognized a party's ability to modify or terminate alimony based upon the alimony obligee entering into a supportive relationship, nor is he presumed to know that he could have included such a provision in the MSA and not agreed to waive the ability to modify his alimony obligation. See Miller, 226 So. 3d at 983. Accordingly, Mr. Watts cannot be faulted for relying upon the advice of his attorney at the time of entering into the MSA.
A legal malpractice claim is "hypothetical and damages are speculative" until such time that a client sustains a "redressable harm." Rocco, 32 So. 3d at 116 (quoting Hold v. Manzini, 736 So. 2d 138, 141-42 (Fla. 3d DCA 1999) ). In Rocco, this court analyzed the issue of proximate cause in a legal malpractice case to determine when and where the action accrued for purposes of determining proper venue. Id. The plaintiff, Rocco, brought suit for legal malpractice against the law firm for disclosing privileged, unredacted financial information to Rocco's stepsons as a part of her late husband's probate proceedings. Upon receiving the improper disclosure, the stepsons withdrew their consents in the probate proceeding and used the privileged information in their pleadings. Id. Based upon these facts, we held that "Rocco did not suffer redressable harm, thereby causing her legal malpractice claim to accrue, until the sons used the improperly disclosed information as the basis for the pleadings," because until then, a malpractice claim was "hypothetical and any damages were speculative." Id. at 116-17 ; see also Clemente v. Freshman, 760 So. 2d 1059, 1061 (Fla. 3d DCA 2000) ("Mere knowledge of potential harm from malpractice is insufficient to trigger the two[-]year statute of limitations period." (citing Taracido v. Perez–Abreu, Zamora & De La Fe, P.A., 705 So. 2d 41, 41-42 (Fla. 3d DCA 1997) )). We conclude the same here. The redressable harm in this case did not occur until the former wife began a supportive relationship and Mr. Watts sustained a loss—that loss being the continued obligation to pay durational alimony while the former wife was maintaining a supportive relationship.
Based upon the record before us, the trial court erred in holding that the date of the MSA's execution was the operative date that triggered the two-year statute of limitation. Because we find that genuine issues of material fact remain as to when Mr. Watts' cause of action accrued, summary judgment was not proper.
V.
Because we determine that modification of the prenuptial agreement was not an impossibility, the statute of limitations did not commence on the day of the MSA's execution, and genuine issues of material fact remain, we reverse the final summary judgment. We decline to address the remaining issues on appeal. Our decision here is not intended to comment on the merits of Mr. Watts' malpractice claim.
Accordingly, we reverse and remand for further proceedings.
Reversed and remanded.
KHOUZAM, C.J., and SLEET, J., Concur.