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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 decedent’s 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 decedent’s 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 decedent’s 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 plaintiff’s 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 defendant’s 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.

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