JACK DYKEMA, APPELLANT,
v.
G. FRANKLIN GODFREY, ET AL. APPELLEES
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A former client sued his attorneys for negligent malpractice, alleging they failed to inform him of a settlement rejection and failed to file responsive pleadings in a loan foreclosure action. The trial court dismissed the complaint for failing to allege a meritorious defense and failing to show the loss resulted from the attorneys' negligence. The appellate court reversed, holding that on a motion to dismiss, the court must determine whether proven allegations would establish a cause of action, and construing the complaint favorably to the pleader, a potential cause of action exists.
The court reversed and held that when ruling on a motion to dismiss, the fundamental question is whether proving the allegations would establish a cause of action. Construing the complaint most favorably to the pleader, a cause of action for attorney negligence exists. An attorney who accepts employment to defend and settle a lawsuit has a duty to inform the client of failed settlement attempts. The absence of an alleged meritorious defense does not appear from the complaint's face, and a defendant in a foreclosure action retains redemption rights that the client could have exercised with proper notice.
[1] A complaint should not be dismissed if, when construed most favorably to the pleader, the allegations establish a cause of action.
[2] An attorney may be liable for neglecting to perform services agreed to be performed for a client.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“There can be no question that one has a cause of action against an attorney who neglects to perform the services which he agrees to perform for a client or which by implication he agrees to perform when he accepts employment.”
Establishes the fundamental principle that attorneys owe a duty to perform agreed-upon services, and breach of this duty constitutes actionable malpractice.
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Join FLexlaw to unlock all legal intelligenceJack Dykema retained attorneys to defend and attempt to settle or compromise a Small Business Administration loan foreclosure action. The attorneys al…
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PEARSON, TILLMAN (Ret.), Associate Judge.
Appellant Jack Dykema brought an action alleging negligent malpractice against his former attorneys. The trial judge dismissed appellant’s second amended complaint. The negligence claimed was that his attorneys failed to inform him of the Small Business Association’s rejection of all offers to settle the action and the attorneys’ subsequent failure to file an answer or any other pleading in the cause. The complaint was dismissed with prejudice on the ground that plaintiff failed to allege that there was a meritorious defense to the action to foreclose a Small Business Administration loan and a failure to allege facts showing that plaintiff’s loss was the approximate result of defendants’ negligence.1 See Maryland Casualty Co. v. Price, 231 Fed. 397 (4th Cir.1916).
We reverse upon a holding that in ruling on a motion to dismiss, the fundamental question is whether the one making the allegations would by proving them thereby establish a cause of action against defendant. Copeland v. Celotex Corp., 447 So. 2d 908 (Fla. 3rd DCA 1984). Construing this complaint most favorably to the pleader, it appears that a cause of action may exist. Vantage View, Inc. v. Bali East Development Corporation, 421 So. 2d 728 (Fla. 4th DCA 1982).
There can be no question that one has a cause of action against an attorney who neglects to perform the services which he agrees to perform for a client or which by implication he agrees to perform when he accepts employment. Weekley v. Knight, 116 Fla. 721, 156 So. 625 (1934).
Plaintiff here alleges that the employment of defendant attorneys was by an agreement to defend and try to settle or compromise the suit. It follows that there was a duty to inform the client of the failure of attempts to settle the suit. It is entirely possible that because plaintiff does not allege a meritorious defense, there was none. But this does not appear from the four corners of the complaint. See Hammonds v. Buckeye Cellulose Corp., 285 So. 2d 7 (Fla.1973).
Further, it does not follow that the absence of a defense to an action for foreclosure relieves an attorney who has accepted employment in the foreclosure action of all responsibility. A defendant to a mortgage foreclosure has a right of redemption. Plaintiff here affirmatively alleges he could have exercised this right if he had received notice that it was his only recourse. A motion to dismiss a complaint is not a substitute for a summary judgment where the court may deal with facts rather than pleadings. See Pizzi v. Central Bank and Trust Co., 250 So. 2d 895 (Fla.1971). Whether plaintiff has suffered any monetary loss is a matter of proof. He has alleged a loss and it does not affirmatively appear from the complaint that the alleged negligence could not have contributed to that loss.
Therefore, the judgment dismissing the complaint is reversed and the cause remanded for further proceedings in accordance with this opinion.
Reversed and remanded.
BOOTH and SHIVERS, JJ., concur. . The final judgment recites: "... it does not allege any defense to the foreclosure action that could have been pursued by the defendants herein; nor does it state any facts upon which the plaintiff’s loss could be attributed approximately to the acts of the defendants.”
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Maillard v. Dowdell, 528 So. 2d 512 (Fla. 3d DCA 1988)…646 (Fla. 3d DCA 1983). The fundamental question a court must consider in ruling on a motion to dismiss is whether by proving the allegations in the complaint the plaintiff would establish a cause of action against the defendant. Dykema v. Godfrey, 467 So. 2d 824 (Fla. 1st DCA 1985). We hold the trial court correctly concluded that plaintiffs had no cause of action against Dowdell. Plaintiffs alleged Dowdell was employed to represent them in the purchase of the condominium. No allegations were made that Dow…
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Wells Fargo Bank v. Bohatka, 112 So. 3d 596 (Fla. 1st DCA 2013)…tion in commandeering the originals of the mortgage and the allonge for delivery to the Office of the Attorney General for its review. [*604] III. A motion to dismiss is not a substitute for a summary judgment hearing or a trial. Dykema v. Godfrey, 467 So. 2d 824, 825 (Fla. 1st DCA 1985). Because, the trial court erred in dismissing the bank’s initial complaint with prejudice, we REVERSE. BENTON, C.J., and VAN NORTWICK, J., concur. . Because no court reporter was present, the parties subsequently created a…
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R.F. Thompson v. P.W. Martin, 530 So. 2d 495 (Fla. 2d DCA 1988)…the allegations of the second amended complaint in a light most favorable to the appellant and drawing all reasonable inferences therefrom, we find that the required elements of a legal malpractice action were alleged. See, e.g., Dykema v. Godfrey, 467 So. 2d 824 (Fla. 1st DCA 1985). Thus, the trial court erred in dismissing the second amended complaint for failure to state a cause of action. We also note that, in addition to contending that the second amended complaint did not state a cause of action, the…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Pizzi v. Cent. Bank & Tr. Co., 250 So. 2d 895 (Fla. 1971)
- Hammonds v. Buckeye Cellulose Corp., 285 So. 2d 7 (Fla. 1973)
- Vantage View, Inc. v. Bali E. Dev. Corp., 421 So. 2d 728 (Fla. 4th DCA 1982)
- Mrs. Ruby Knight Weekley v. Knight, 116 Fla. 721 (Fla. 1934)
- Copeland v. The Celotex Corp., 447 So. 2d 908 (Fla. 3d DCA 1984)