MRS. RUBY KNIGHT WEEKLEY, ET VIR.,
v.
VICTOR H. KNIGHT AND C. L. SPARKMAN, CO-PARTNERS
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A malpractice action against an attorney for failing to record a mortgage. The Florida Supreme Court affirmed that an attorney can be sued for breach of contract when negligently failing to perform agreed services, but reversed and remanded because the plaintiff failed to adequately allege actual damages and the judgment was materially excessive.
A client may bring an action for breach of contract against an attorney who fails to perform agreed services; however, the plaintiff must allege sufficient facts to show actual loss. The defendant's pleas failed because they did not allege that the property is worth less than the mortgages or that foreclosure resulted in loss, thus failing to establish prospective or actual damages.
“one has a cause of action ex contractu 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 by a client”
Establishes the fundamental right of clients to sue attorneys for breach of contract based on negligent failure to perform services
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Join FLexlaw to unlock all legal intelligenceThe defendant attorney failed to record a mortgage for the plaintiff as agreed. Upon discovering this breach, the plaintiff purchased or paid off prio…
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We have been very much impressed by the plaintiffs in error’s contentions in regard to the order sustaining demurrer to the defendants’ amended first and second pleas to the entire declaration. We think there can be no question that one has a cause of action ex contractu 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 by a client. See 6 C. J. 708, Sec. 253; 2 R. C. L. 1012, et seq.; Pennington, Executor, v. Yell, 6 Ark. 212; Chitty on Pleading, Vol. 1, page 149, Sec. 114, and note thereunder; Stimson v. Sprague, Administrator, 6 Maine 470.
The infirmity of the pleas above referred to is not, that they are not applicable if they state a cause of action, but they fail to allege sufficient facts to show that the defendant has suffered loss by reason of the act complained of. The .defendant in these pleas avers that by the negligent act of the attorney she was caused to expend a large sum of money for the purchase of certain mortgages to protect her prior mortgage which had not been caused to be recorded by the attorney as it was alleged it was his duty to have caused the same to be recorded. The pleas allege that at the time she discovered the breach of the contract (implied by the attorney’s employment in her behalf) she deemed certain property to be of sufficient value to warrant her in paying off the mortgages which by prior record had become prior liens to her mortgage and that she did pay off those mortgages or did purchase those mortgages to protect her mortgage, which, if it had been recorded properly and at the time it should have been recorded, would have been a first lien. But she does not allege that the property upon which she now holds three mortgages is not worth the aggregate of the mortgages. Neither does she show that she has foreclosed those mortgages and has failed to realize thereon the *723amount represented by the mortgages. The pleas fall short of showing even a prospective loss, which would not be sufficient to warrant recovery. As the pleas were not sufficient to allege a cause of action against the complainant for damage by reason of breach of contract they were not sufficient to constitute pleas of set-off.
Therefore, demurrer was properly sustained.
The judgment is materially excessive, but we do not find in the record a basis for determining in just what amount the judgment should be reduced and, therefore, we think that justice to all parties demands that the judgment be reversed, because the same is materially excessive, and the cause be remanded for a new trial.
It is so ordered.
Davis, C. J., and Whitfield, Ellis, Terrell, Brown, and Buford, J. J., concur.
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Steele v. Kehoe, 747 So. 2d 931 (Fla. 1999)…malpractice, a plaintiff must plead and prove the following elements: (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 the client’s loss. Weekley v. Knight, 116 Fla. 721, 156 So. 625 (1934). With respect to a legal malpractice suit brought by one convicted of a crime, a majority of jurisdictions have held that appellate or postconviction relief is a prerequisite to maintaining the action. See, e.g., Orr v. Black & F…
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Ortiz v. Nicolaides, 196 So. 2d 186 (Fla. 3d DCA 1967)…117, 57 So. 201; Wilhelm v. South Indian River Company, 98 Fla. 970, 124 So. 729. He was not required to continue the matter; and if counsel was derelict in attending to his client’s cause he would be liable to her for such. See: Weekley v. Knight, 116 Fla. 721, 156 So. 625; Solomon v. Meyer, Fla.App.1959, 116 So. 2d 37; 3 Fla.Jur., Attorneys at Law, § 45. Therefore, for the reasons stated above, the final judgment here under review is hereby reversed and the defaults upon which it was based are hereby se…
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Gerhard T. Beck v. Barnett Nat'l Bank OF Jacksonville, 117 So. 2d 45 (Fla. 1st DCA 1960)…la. 144. . Baker v. Bundy, 55 Ind.App. 272, 103 N.E. 608. . Marshall v. Gustin, 89 Or. 53, 170 P. 312, 173 P. 461; Koch v. LeFrois, 61 Hun. 205, 15 N.Y.S. 928. . State ex rel. Garesche v. Slevin, 1887, 93 Mo. 253, 6 S.W. 68. . Weekley v. Knight, 116 Fla. 721, 156 So. 625. . Brass v. Reed, Fla.1953, 64 So. 2d 646. . Atkins v. Humes, Fla.App.1958, 107 So. 2d 253. . Cook v. Central and Southern Flood Control District, Fla.App., 114 So. 2d 691.…
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