BILL BRANCH CHEVROLET, INC., A FLORIDA CORPORATION, APPELLANT,
v.
PHILIP L. BURNETT, P.A., A PROFESSIONAL ASSOCIATION, AND PHILIP BURNETT, INDIVIDUALLY, APPELLEES
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Bill Branch Chevrolet sued its former attorney for legal malpractice based on alleged inadequate preparation in a litigation matter that settled before trial. The trial court dismissed the malpractice claim, concluding that settlement of the underlying case precluded any malpractice action, but the appellate court reversed, holding that settlement does not negate malpractice as a matter of law.
Settlement of the underlying case does not negate attorney malpractice as a matter of law; whether settlement was the proximate result of the attorney's negligence is a factual matter for trial. The complaint adequately alleged all elements of legal malpractice: employment, neglect of reasonable duty, and proximate causation resulting in loss.
[1] A cause of action for attorney malpractice may lie even where the underlying suit settled before trial.
[2] A legal malpractice complaint must allege the employment of the attorney, neglect of a reasonable duty, and that the neglect was the proximate cause of loss to the client…
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Join FLexlaw to unlock all legal intelligence“An action for legal malpractice must allege the employment of the attorney and neglect of a reasonable duty that has been the proximate cause of loss to his client.”
Establishes the three-part test for stating a legal malpractice claim that the complaint must satisfy.
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Join FLexlaw to unlock all legal intelligenceBranch Chevrolet employed Philip L. Burnett, P.A., and Philip Burnett to represent it in a litigation matter. Three weeks before trial, the company di…
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THREADGILL, Judge.
The appellant, Branch Chevrolet, Inc., charges error in the dismissal of count two of its complaint for legal malpractice. The appellant filed a two-count complaint against the lawyer and law firm that had represented it in two separate legal matters. The trial court dismissed with prejudice the second count, which was based on an action that had settled, for failure to state a cause of action. The court concluded that where a suit settles before trial, no cause of action for attorney malpractice will lie. We reverse.
An action for legal malpractice must allege the employment of the attorney and neglect of a reasonable duty that has been the proximate cause of loss to his client. Thompson v. Martin, 530 So. 2d 495 (Fla. 2d DCA 1988); Nicholauson v. Rhyne, 529 So. 2d 365 (Fla. 2d DCA 1988). The complaint alleged that the appellant had employed Philip L. Burnett, P.A., and Philip Burnett, the appellees, in a litigation matter; that three weeks before trial, it discovered the appellees’ failure to investigate or conduct discovery necessary to adequately prepare for trial; and that, faced with a claim for punitive damages and no trial preparation, it was forced to settle the case for a sum greater than its. actual liability.
Considering the allegations in the light most favorable to the appellant and drawing all reasonable inferences therefrom, we find that the required elements of legal malpractice were adequately alleged. See e.g., Dykema v. Godfrey, 467 So. 2d 824 (Fla. 1st DCA 1985).
The appellees argue that the settlement of the underlying case is an affirmative defense to the appellant’s legal malpractice action. The general rule is that where an affirmative defense appears on the face of the complaint, it may be considered by the trial court on a motion to dismiss. Hawkins v. Williams, 200 So. 2d 800 (Fla.1967); Goodman v. Habif, 424 So. 2d 171 (Fla. 3d DCA 1983); Vaswani v. Ganobsek, 402 So. 2d 1350 (Fla. 4th DCA 1981); Margerum v. Ross Builders, Inc., 427 So. 2d 261 (Fla. 5th DCA 1983). As the settlement was alleged in the complaint, it was the proper subject of an affirmative defense in the appellees’ motion to dismiss. See Keramati v. Schackow, 553 So. 2d 741, 744-46 (Fla. 5th DCA 1989).
In considering an affirmative defense raised in a motion to dismiss, the court must assume that all facts alleged in the complaint are true and must decide the motion on questions of law. See Connolly v. Sebeco, Inc., 89 So. 2d 482 (Fla.1956). We cannot say as a matter of law that the settlement of this case negates any alleged legal malpractice as a proximate cause of loss. This is a matter of proof for trial.
The appellees contend further that the appellant’s damage allegation is speculative. The complaint alleged that the settlement subjected the appellant to greater liability than would have a verdict in a properly tried case. Whether the appellant can prove damages beyond speculation is an issue for the trier of fact. Moreover, as this issue is not found on the face of the complaint, it cannot be the subject of a motion to dismiss. See Hawkins, 200 So. 2d at 802.
We reverse the trial court’s order dismissing count two of the complaint and remand the cause for further proceedings.
Reversed and remanded.
SCHEB, A.C.J., and SCHOONOVER, J., concur.
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Cited By (11 total)
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Lenahan v. Russell L. Forkey, P.A., 702 So. 2d 610 (Fla. 4th DCA 1997)…mstances of this case do not constitute abandonment and that the dismissal of the Virginia lawsuit did not preclude the client from being able to establish redressable harm. See Coble; see also Bill Branch Chevrolet, Inc. v. Philip L. Burnett, P.A., 555 So. 2d 455 (Fla. 2d DCA 1990); Keramati v. Schackow, 553 So. 2d 741 (Fla. 5th DCA 1989). In this, case, the allegation, which is supported by an affidavit, is that the Virginia lawsuit was dismissed as a direct result of Forkey’s negligence in handling the mat…
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Coble v. Aronson, 647 So. 2d 968 (Fla. 4th DCA 1994)…kow, 553 So. 2d 741 (Fla. 5th DCA 1989) (attorney malpractice action existed where the plaintiff claimed that lawsuit was settled for far less than the case was worth due to negligent advice of counsel); Bill Branch Chevrolet, Inc. v. Burnett, P.A., 555 So. 2d 455 (Fla. 2d DCA 1990) (cause of action existed for attorney malpractice where plaintiff claimed that law firm inadequately investigated lawsuit for trial and, consequently, plaintiff was forced to settle the case). Coble’s lawsuit against American Par…
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Anneen Nina Gloria Baum v. Becker & Poliakoff, P.A., 351 So. 3d 185 (Fla. 5th DCA 2022)…ble duty; and (3) the attorney’s negligence resulted in and was the proximate cause of loss to the client.” Tarleton v. Arnstein & Lehr, 719 So. 2d 325, 328 (Fla. 4th DCA 1998) (citations omitted); see also Bill Branch Chevrolet, Inc. v. Burnett, 555 So. 2d 455, 456 (Fla. 2d DCA 1990). The central issue in this appeal is Appellees’ argument that they ---PAGE 10--- could not be the proximate cause of Appellant’s case being dismissed because prior counsel had already missed the deadline to serve process…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Connolly v. Sebeco, Inc., 89 So. 2d 482 (Fla. 1956)
- Vaswani v. Ganobsek, 402 So. 2d 1350 (Fla. 4th DCA 1981)
- Shayan Keramati v. Schackow, 553 So. 2d 741 (Fla. 5th DCA 1989)
- R.F. Thompson v. P.W. Martin, 530 So. 2d 495 (Fla. 2d DCA 1988)
- Dykema v. Godfrey, 467 So. 2d 824 (Fla. 1st DCA 1985)
- Dearmas v. State, 530 So. 2d 495 (Fla. 2d DCA 1988)
- Drucilla Ingram Hawkins v. Williams, 200 So. 2d 800 (Fla. 1967)
- The Heirs OF the Est. OF Dorothy O. Waldon v. Rotella, 427 So. 2d 261 (Fla. 5th DCA 1983)
- Margerum v. Ross Builders, Inc., 427 So. 2d 261 (Fla. 5th DCA 1983)
- Acco, Inc. v. Kozak, 424 So. 2d 171 (Fla. 3d DCA 1983)