Jones v. Law Firm of Hill and Ponton

• Citation: 223 F.Supp.2d 1284
• Decision Date: 13 August 2002
• Docket Number: No. 6:00-CV-746-ORL-31-J.,6:00-CV-746-ORL-31-J.
• Parties: Mark Jacob JONES, Plaintiff, v. LAW FIRM OF HILL AND PONTON, Joy Shelley, Linda Doe, Karen Marcell, Silvia Sanders, Juan C. Gautier & Brian Hill, Defendant.
• Court: U.S. District Court — Middle District of Florida

223 F.Supp.2d 1284

Mark Jacob JONES, Plaintiff, v. LAW FIRM OF HILL AND PONTON, Joy Shelley, Linda Doe, Karen Marcell, Silvia Sanders, Juan C. Gautier & Brian Hill, Defendant.

No. 6:00-CV-746-ORL-31-J.

United States District Court, M.D. Florida, Orlando Division.

August 13, 2002.

Mark Jacob Jones, Far Rockaway, NY, pro se.

Jeffrey Dean Starker, Hill & Ponton, P.A., Orlando, FL, Dale T. Golden, marshall, Dennehey, Warner, Coleman & Goggin, Tampa, FL, for defendants.

ORDER

PRESNELL, District Judge.

On July 24, 2002, Magistrate Judge Glazebrook entered his Report and Recommendation (Doc. 85), recommending that Defendant's Motion for Judgment on the Pleadings (Doc. 69) be granted. On August 12, 2002, Plaintiff filed a perfunctory objection to the Report and Recommendation (Doc. 87). The Court has reviewed this matter de novo, and has concluded that the Report and Recommendation is correct in all respects. It is, therefore

ORDERED that:

1. The Report and Recommendation of Magistrate Judge Glazebrook is AFFIRMED and ADOPTED as part of this Order;

2. Defendant's Motion for Judgment on the Pleadings (Doc. 69) is GRANTED;

3. Plaintiff's Amended Complaint (Doc. 62) is hereby DISMISSED with prejudice;

4. All other pending motions are DENIED, as moot.

REPORT AND RECOMMENDATION

GLAZEBROOK, United States Magistrate Judge.

TO THE UNITED STATES DISTRICT COURT

This cause came on for consideration without oral argument on the following motion:

MOTION: DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS TO DISMISS AMENDED COMPLAINT (Doc. No. 69)

FILED: April 8, 2002

THEREON it is RECOMMENDED that the motion be GRANTED.

On February 25, 2002, plaintiff Mark Jacob Jones ("Jones") filed an amended complaint against his former attorneys and law firm for legal malpractice, negligence, breach of fiduciary duty, breach of contract, intentional infliction of emotional distress, and civil rights violations. Docket No. 62. The defendant, the Law Firm of Hill and Ponton ("Hill and Ponton"),¹ moves to dismiss Jones's amended complaint pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Specifically, Hill and Ponton claims that it is entitled to judgment on the pleadings because the facts, as alleged by Jones, do not entitle Jones to relief as a matter of law. For the reasons that follow, it is RECOMMENDED that this action be DISMISSED.

I. APPLICABLE LAW

A. Standard of Review

Judgment on the pleadings under Fed. R.Civ.P. 12(c) is appropriate when there are no material facts in dispute, and judgment may be rendered by considering the substance of the pleadings and any judicially noticed facts. Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1370 (11th Cir.1998). If upon reviewing the pleadings it is clear that the plaintiff would not be entitled to relief under any set of facts that could be proved consistent with the allegations, the court should dismiss the complaint. White v. Lemacks, 183 F.3d 1253, 1255 (11th Cir.1999); Ancata v. Prison Health Services, Inc., 769 F.2d 700, 703 (11th Cir.1985) (threshold is "exceedingly low"). In determining whether to dismiss a case, the Court accepts the allegations in the complaint as true, and otherwise views the allegations in the light most favorable to the plaintiff. Linder v. Portocarrero, 963 F.2d 332, 334 (11th Cir.1992) citing Quality Foods de Centro Am., S.A. v. Latin Am. Agribusiness Dev. Corp., S.A., 711 F.2d 989, 994-95 (11th Cir.1983). The Court does not generally accept conclusory allegations as true. See South Florida Water Management District v. Montalvo, 84 F.3d 402, 408 n. 10; accord, Associated Builders, Inc. v. Alabama Power Co., 505 F.2d 97, 100 (5th Cir.1974).

B. Legal Malpractice

In a Florida legal malpractice action, the client carries the burden of establishing three elements: 1.) employment of the defendant attorney; 2.) failure of the attorney to exercise reasonable care, skill and diligence; and 3.) that such negligence was the proximate cause of damage to the plaintiff. Bill Branch Chevrolet, Inc. v. Philip L. Burnett, P.A., 555 So.2d 455, 455 (Fla.App.2d Dist.Ct.App.1990); Thompson v. Martin, 530 So.2d 495, 496 (Fla.App.2d Dist.Ct.App.1988). An attorney must have the knowledge and skill necessary to confront the circumstances of each case. See, e.g., Bill Branch, 555 So.2d at 455; State v. Meyer, 430 So.2d 440, 443 (Fla.1983), overruled on other grounds sub nom. State v. District Court of Appeal, First District, 569 So.2d 439 (Fla.1990). In addition, "the attorney is under a duty at all times to represent his client and handle his client's affairs with the utmost degree of honesty, forthrightness, loyalty and fidelity." Smyrna Developers, Inc. v. Bornstein, 177 So.2d 16, 18 (Fla.App.2d Dist.Ct.App.1965). See also FDIC v. Martin, 801 F.Supp. 617, 620 (M.D.Fla.1992); Armour & Co. v. Lambdin, 154 Fla. 86, 16 So.2d 805, 810-11 (1944); Fernandez v. Cunningham, 268 So.2d 166, 168 (Fla.App.3d Dist.Ct.App. 1972).

In a suit for legal malpractice, proof that the attorney's negligence proximately caused the client's harm is necessary for recovery. See Sure Snap Corp. v. Baena, 705 So.2d 46, 48 (Fla.App.3d Dist.Ct.App. 1997). Recently, in Porter, III v. Ogden, Newell & Welch, 241 F.3d 1334 (11th Cir. 2001), the Eleventh Circuit examined the law of the State of Florida in a legal malpractice action.

The Eleventh Circuit explained that, under Florida law, a cause of action for negligence does not accrue until the existence of a redressable harm or injury has been established and the injured party knows or should have known of either the injury of the negligent act. Porter, III, 241 F.3d at 1338. When a plaintiff bases a malpractice action on errors committed in the course of litigation, and the litigation proceeds to judgment, generally the redressable harm is not established until final judgment is rendered. Porter, III, 241 F.3d at 1338. An allegation setting forth the disposition of the underlying proceeding is an ultimate fact that plaintiff must plead to state a cause of action for legal malpractice against defendants. See Peat, Marwick, Mitchell & Co. v. Lane, 565 So.2d 1323, 1324 (Fla.1990); Conley v. Shutts & Bowen, P.A., 616 So.2d 523, 524 (Fla.App.3d Dist.Ct.App.1993); Pennsylvania Ins. Guar. Ass'n v. Sikes, 590 So.2d 1051, 1052 (Fla.App.3d Dist.Ct.App.1991).

The Supreme Court of Florida has held that in a litigation context, "a malpractice case is hypothetical and damages are speculative until the underlying action is concluded with an adverse outcome to the client." Silvestrone v. Edell, 721 So.2d 1173 (Fla.1998). However, Florida cases should not be read to require every party who suffers a loss and attributes that loss to legal malpractice to obtain a final determination of the underlying case before asserting a claim for legal malpractice. The Eleventh Circuit recently explained that instead of setting a fine line, Florida courts hold that a malpractice action accrues when "it is reasonably clear that the client has actually suffered some damage from legal advice or services." Porter, III, 241 F.3d at 1339 (quoting Throneburg, III v. Boose, Casey, Ciklin, Lubitz, Martens, McBane & O'Connell, P.A., 659 So.2d 1134, 1136 (Fla.App.4th D.C.A.1995)). The test for determining when a cause of action for attorney malpractice has accrued is whether the existence of redressable harm has been established. 241 F.3d at 1339—40. Thus, it is not necessary to complete the litigation of the case giving rise to the malpractice claim if it is reasonably clear that the client has actually suffered some damage from legal advice or services.

Moreover, a party cannot recover damages for legal malpractice unless it is shown that the lawyer neglected a reasonable duty which was the proximate cause of the client's loss. Chipman v. Chonin, 597 So.2d 363 (Fla.App.3d D.C.A.1992). In Chipman, the plaintiff had retained the services of the defendant-attorney to represent him in an age discrimination suit against his former employer. The attorney withdrew ten months prior to trial. The plaintiff obtained new counsel, whom he fired four months prior to trial. The plaintiff then accepted a settlement offer from his former employer. Subsequently, the Chipman plaintiff filed a legal malpractice and breach of contract case against his first retained counsel, claiming that the defendant wrongfully withdrew as his counsel thereby causing him to "lose monetary damages in an age discrimination case." 597 So.2d at 363. The court granted summary judgment to the defendant attorney, stating that the plaintiff could not prove that any breach of contract was the "proximate cause" of any loss: "any loss of these damages must be attributable to Chipman himself since he chose to voluntarily accept his former employer's settlement offer." Id.

C. Intentional Infliction of Emotional Distress

The Florida Supreme Court has recognized the tort of intentional infliction of emotional distress, but has carefully defined its contours:

It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by "malice," or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, "Outrageous!"

Metropolitan Life Ins. Co. v. McCarson, 467 So.2d 277, 278-79 (Fla.1985) (quoting Restatement (Second) of Torts, § 46 comment d (1965)); Martin v. Baer, 928 F.2d 1067 (11th Cir.1991). In Florida, in order to allege a...