Arky, Freed, Stearns, Watson, Greer, Weaver & Harris, P.A. v. Bowmar Instrument Corp.

• Decision Date: 08 December 1987
• Docket Number: 86-2200,Nos. 86-1319,s. 86-1319
• Citation: 12 Fla. L. Weekly 2750,527 So.2d 211
• Parties: 12 Fla. L. Weekly 2750 ARKY, FREED, STEARNS, WATSON, GREER, WEAVER & HARRIS, P.A., Appellant, v. BOWMAR INSTRUMENT CORPORATION, an Indiana corporation, Appellee.
• Court: Florida District Court of Appeals

Page 211

527 So.2d 211

12 Fla. L. Weekly 2750

ARKY, FREED, STEARNS, WATSON, GREER, WEAVER & HARRIS, P.A., Appellant, v. BOWMAR INSTRUMENT CORPORATION, an Indiana corporation, Appellee.

Nos. 86-1319, 86-2200.

District Court of Appeal of Florida,

Third District.

Dec. 8, 1987.

Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin and Joel D. Eaton, Miami, for appellant.

Hall, O'Brien & Cohen and Andrew C. Hall and Richard F. O'Brien, III, Miami, Kohn, Savett, Klein & Graf and Harold E. Kohn and Dianne M. Nast and Victor P. Barall, Philadelphia, Pa., for appellee.

Before HENDRY, BASKIN and DANIEL S. PEARSON, JJ.

PEARSON, DANIEL, S., Judge.

We reverse the judgment entered upon a jury verdict for the counterclaimant, Bowmar Instrument Corporation, against the appellant law firm, Arky, Freed, Stearns, Watson, Greer, Weaver and Harris, P.A., in this legal malpractice action. ¹ Although we reject the law firm's claim that it was entitled to a directed verdict and thus judgment in its favor, we are persuaded that the law firm is entitled to a new trial because, in our view, the trial court's rulings deprived the firm of sufficient time to prepare an adequate defense to a claim--indeed, the sole claim upon which the trial of the counterclaim proceeded--first asserted by Bowmar only twelve days before trial.

I.

In December 1984, Arky Freed sued Bowmar to recover fees for representing Bowmar in actions against Fidelity Electronics, Ltd., Inc. In May 1985, Bowmar filed a counterclaim alleging that Arky Freed had negligently represented it. The negligence specified in the counterclaim was, inter alia, that the law firm assigned as lead counsel to the case an attorney who was inexperienced in commercial litigation; allowed critical documents to be reviewed by paralegals who had not been sufficiently instructed; failed to obtain valuable information from other similar litigation in which Fidelity was involved; failed to take timely discovery depositions and associated outside counsel not familiar with the case to take discovery depositions; and failed to properly investigate and vigorously prosecute the case against Fidelity. Conspicuously absent from the counterclaim was an allegation--or even an allusion to an allegation--that would have apprised Arky Freed of the real thrust of Bowmar's claim: that the firm negligently failed to present a "cover" defense in the underlying action against Fidelity, that is, Arky Freed both ignored Bowmar's express instructions to present such a defense and negligently failed to prove that Fidelity could have and should have mitigated its damages by obtaining from another source the component parts which Bowmar had been unable to provide in a timely fashion. Indeed, it was not until February 1986--twelve days before the trial was to begin--that, in long-overdue answers to expert witness interrogatories, Bowmar disclosed that it intended to prove at trial, not the allegations set forth in its counterclaim, but, instead, Arky Freed's failure to raise a "cover" defense.

Arky Freed moved for a continuance on the obvious ground that it could not on such short notice adequately prepare to defend against this newly revealed claim. ² Bowmar's response was a non sequitur: since Arky Freed had announced its readiness for trial on several occasions before the new "failure-to-present-a-cover-defense" claim was revealed, Arky Freed should be considered ready for trial now. The trial court denied Arky Freed's motion for continuance (and, not surprisingly, its motion to exclude all evidence relating to the belated claim) on the ground that Bowmar's claim was embraced within the "general complaint raised by the defendant in the counterclaim." The case went to trial, resulting in a jury verdict for Bowmar on its counterclaim.

II.

In defense of the trial court's ruling, Bowmar argues that the particularized factual allegations in its counterclaim were merely illustrative examples of its more general allegation that Arky Freed "negligently failed to be adequately prepared for trial." This general allegation, argues Bowmar, was sufficient to put Arky Freed on notice of Bowmar's claim that it had directed Arky Freed to present a "cover" defense and that Arky Freed negligently failed to do so. We disagree.

While it is true, as the law firm acknowledges, that formalistic rules of common law pleading have been replaced by the more liberal "notice pleading," it remains necessary in the setting of a legal malpractice case to plead more than the naked legal conclusion that the defendant was negligent. As this court declared in Kartikes v. Demos, 214 So.2d 86, 87 (Fla. 3d DCA 1968), "[w]e expressly reject [the plaintiff's] proposition that the allegations of a complaint against an attorney for malpractice need contain only legal conclusions rather than ultimate facts, as in certain types of automobile negligence actions." Accord Parker v. Gordon, 442 So.2d 273 (Fla. 4th DCA 1983); Dillard Smith Construction Co. v. Greene, 337 So.2d 841 (Fla. 1st DCA 1976). See also Kislak v. Kreedian, 95 So.2d 510 (Fla.1957) (conclusory allegations insufficient to state cause of action for breach of contract); Griffin v. Griffin, 463 So.2d 569 (Fla. 1st DCA 1985) (same; action for accounting and recovery of funds). See generally Dyson v. Dyson, 483 So.2d 546 (Fla. 1st DCA 1986); 40 Fla.Jur.2d Pleadings §§ 2, 32-33 (1982) (and decisions cited therein). Thus, the counterclaim failed to apprise Arky Freed of the operative fact that it was negligent in not presenting a "cover" defense, and, by its specification of other operative facts, led Arky Freed to reasonably believe--until twelve days before trial--that Bowmar's malpractice claim would be limited to these other facts. Smith v. Mogelvang, 432 So.2d 119, 123 (Fla. 2d DCA 1983).

III.

Far more difficult than the question of whether the trial court's judgment should be reversed--which we have now resolved in the law firm's favor--is the question of whether Arky Freed is, as it urges, entitled to a directed verdict and consequent judgment in its favor.

A.

Arky Freed contends that it is entitled to a directed verdict on the ground that Bowmar failed to prove any of the allegations of its counterclaim and instead proved a theory of legal malpractice not contained in its pleadings. The law firm argues that Dober v. Worrell, 401 So.2d 1322 (Fla.1981), put an end to the practice of appellate courts authorizing the amendment of a complaint after reversal and remand, ³ so that, it is urged, when a judgment upon a matter entirely outside of the issues made by the pleadings is reversed, it necessarily follows that judgment must be entered for the successful appellant. Although it is indisputably true that "a judgment upon a matter entirely outside of the issues made by the pleadings cannot stand," ⁴ Cortina v. Cortina, 98 So.2d 334, 337 (Fla.1957), whether an appellant who succeeds in setting aside such an errant judgment is entitled to have judgment entered in its favor is, in our view, a separate question.

In Dober v. Worrell, the defendant-doctors raised a statute of limitations defense to a medical malpractice action. The trial court, agreeing that the doctors had conclusively shown that the action was limitations-barred, entered a summary judgment in their favor. On appeal, the plaintiffs argued for the first time that the doctors' alleged fraudulent concealment of the facts surrounding the deceased's death had extended the period of limitations, which had not yet run. The Fourth District Court of Appeal affirmed the summary judgment but remanded the case to allow the plaintiffs to amend their pleadings to assert their avoidance of the defendants' statute of limitations defense. ⁵ The Florida Supreme Court disapproved of the remand.

Dober, in our view, does no more than reject as making a mockery of the concept of finality a procedure which "allows an appellate court to rule on the merits of a trial court judgment and then permits the losing party to amend his initial pleadings to assert matters not previously raised." 401 So.2d at 1324. Dober hardly precludes a party from amending its pleadings and having a new trial thereon where it has reasonably relied upon a favorable trial court ruling--later declared on appeal to be erroneous--that its pleadings embraced the matters which it proved at trial. ⁶

What distinguishes Dober from the present case is that in Dober the losing plaintiffs--quite obviously not in reliance upon the trial court's ruling in the defendant's favor--simply failed to reply to the defendant's affirmative defense; here, in contrast, Bowmar, the losing party on appeal, presumably would have attempted to assert the matter in its initial pleadings but for its reliance on the trial court's favorable ruling that it had already adequately asserted the matter in its pleadings. Thus, in the present case, the trial court expressly addressed the question of whether Bowmar's "failure-to-present-a-cover-defense" claim was embraced within its existing counterclaim and validated Bowmar's contention that its claim was so embraced. Relying upon this ruling, Bowmar proceeded to trial with its pleadings as they were. By contrast, in Dober the trial court did not validate the claimants' position but instead ruled with the defendants that the claim was filed beyond the applicable limitations period. That ruling, rather than lulling the claimants into a state of well-being, should have produced the opposite result of impelling the claimants to reply to the statute of limitations defense and plead their avoidance of it. Dober, then, is not a reliance case and is therefore inapposite.

B.

To be sure, the draconian result urged by Arky Freed is arguably supported by the results reached in several cases in which the appellate court ordered that judgment be entered for the defendant upon a finding that the trial court should have directed a verdict for the defendant where ...