ARTICLE ID 43281
Legal malpractice - Alleged negligent handling of in underlying legal action - Claimed failure to timely file summary judgment motion.
Miami-Dade County
The plaintiff in this legal malpractice action was the estate of
an attorney who, in ________, invested in tree nurseries in Arizona
as a tax shelter. The plaintiff claimed that the defendant
attorney negligently handled the underlying litigation stemming
from the investment, thereby costing the estate in excess of
$________. The defendant denied any negligence in representing the
decedent.
Evidence showed that the decedents investment in the Arizona
tree nurseries lost money and that the IRS disallowed the claimed
tax deduction for the loss. The nurseries eventually went into
foreclosure. Just prior to the foreclosure sale, a suit against
the nursery investors brought by the holder of a promissory note
was voluntarily dismissed.
The purchasers of the nurseries at the foreclosure sale
subsequently filed suit to recover their losses from the
investors, including the decedent, who had allegedly signed
personal notes guaranteeing the investment. The underlying
lawsuit was filed in Arizona, dismissed for lack of jurisdiction
and refiled in State Court in Florida, at which time the
defendant attorney, the decedents former law partner, was
retained to defend the action. The underlying case was
voluntarily dismissed from State Court and refiled in Federal
Court.
The underlying suit was defended by the defendant for some ten
years. It was dismissed several times. However, each time the
case was dismissed, the plaintiff amended the complaint and
reinstated the case. Finally, the underlying suit was dismissed
with prejudice by a federal court judge. However, the dismissal
was reversed by the 11th Circuit Court of Appeals.
The defendant attorney then filed a motion for summary judgment
arguing that under the "Two Dismissal Rule," the case had been
dismissed at least twice constituting an adjudication on the
merits. The summary judgment motion was denied by a federal court
judge.
At that point, the decedent died and his estate took over as the
defendant in the underlying case. The decedents wife, as
personal representative of his estate, authorized settlement of
the underlying case for $________.
The plaintiff estate then filed this legal malpractice suit
against the defendant attorney. The plaintiffs legal expert
testified that the issues raised by the defendant in the motion
for summary judgment should have been raised some ten years
earlier, increasing its chance for success.
The defendants legal expert opined that the chances for
success of the summary judgment motion were the same regardless of
when the motion was filed. The defense argued that the defendant
attorney was not negligent and the motion would have been heard
by the same judge, who would have denied it, even if filed
earlier. The defendant also contended that the $________
settlement was reasonable in light of the fact that the plaintiff
faced some $2 million in exposure.
The jury found for the defendant.
5 ways to win with JVRA
JVRA gives you jurisdiction-specific, year-round insight into the strategies, arguments and tactics that win. Successful attorneys come to the table prepared and use JVRA to:
- Determine if a case is winnable and recovery amounts.
- Determine reasonable demand for a case early on.
- Support a settlement demand by establishing precedent.
- Research trial strategies, tactics and arguments.
- Defeat or support post-trial motions through past case histories.
Try JVRA for a day or a month, or sign up for our deluxe Litigation Support Plan and put the intelligence of JVRA to work for all of your clients. See our subscription plans.