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ARTICLE ID 193327

$________ JUDGMENT FOLLOWING BENCH TRIAL – Professional Negligence – Legal Malpractice – Failure to advise clients of existence of restrictive covenant preventing improvement to the property at question – Failure to assert claim of violation of restrictive covenant in litigation.

Fairfield County, CT

In this legal malpractice matter, the plaintiffs allege that the defendant attorney was negligent in failing to assert a violation of the restrictive covenant claim on behalf of the plaintiffs in their underlying litigation. The plaintiffs alleged that the they sustained damages including additional attorney fees in attempting to resolve the plaintiffs’ underlying claim and damages to restore the property in question.

The plaintiffs are the owners of property next door to property purchased by another couple. The neighboring couple had purchased the property, subject to a restrictive covenant that prevented a particular area of the property located by a common driveway to be unable to be built upon or improved, which included putting in a driveway on that part of the property. During the years that the neighboring couple had owned the property, the plaintiffs used that portion of the property for dumping brush and grass clippings.

The neighboring couple began to develop the area to install a driveway for a separate dwelling where they were going to build on their property. When the neighbors began to develop the property along the common driveway, the plaintiffs consulted the defendant attorney, believing that they may have some type of ownership right to the property since they had had used the property without any question for the entire time that the neighboring couple owned the property. The plaintiffs contend that the defendant attorney failed to conduct any deeds or maps regarding the property,which would have clearly indicated the existence of the restrictive covenant and instead brought an adverse possession claim on behalf of the plaintiffs. The defendant instituted an adverse possession action against the neighboring property owners seeking temporary and permanent injunctive relief. The injunctive relief was denied by the court. At some point during the litigation, the defendant attorney realized that a restrictive covenant existed, and amended the pleadings. At this point, the plaintiffs switched attorneys and the plaintiffs’ case was ultimately resolved with the neighboring property owner for $________.

The plaintiffs, however, were unable to collect on the settlement due to the property owners’ bankruptcy. The plaintiffs brought suit against the defendant attorney for legal malpractice, alleging that the defendant was negligent in failing research the deeds and maps concerning the property, which would have disclosed the restrictive covenant and prevented the property owners from proceeding with the work. The delay in discovering this information lead the plaintiffs to incur additional attorney fees and costs in connection with the remediation of the property as well as its inability to collect on the settlement with the neighboring property owners.

The defendant attorney denied that there was any deviation from acceptable standards of care alleging that the defendant attorney filed the adverse possession litigation on behalf of the plaintiffs in good faith based upon the information provided by the clients.

The matter proceeded to a bench trial. At the conclusion, the court ordered that the plaintiffs were entitled to receive the total sum of $________ from the defendant attorney. The judgment consisted of $________ for the loss of property value, $________ to re-mediate the property, $________ for engineering costs, and $________ for attorney fees paid in connection with the claim. They were also awarded a return of the $________ paid to the defendant’s law firm.

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