Sierra v. Shevin, 3D99-3221.

Decision Date05 July 2000
Docket NumberNo. 3D99-3221.,3D99-3221.
PartiesElsa SIERRA, Appellant, v. Jerome SHEVIN, Esq., and Jerome H. Shevin, P.A., Appellees.
CourtFlorida District Court of Appeals

767 So.2d 524

Elsa SIERRA, Appellant,
v.
Jerome SHEVIN, Esq., and Jerome H. Shevin, P.A., Appellees

No. 3D99-3221.

District Court of Appeal of Florida, Third District.

July 5, 2000.

Rehearing Denied September 27, 2000.


Santos, Dutton, Lynott, and Henry, and Harry L. Coe, IV, Tampa, for appellant.

Haliczer, Pettis and White, and Debra B. Potter, Fort Lauderdale, and Robert F. Bouchard, Miami, for appellees.

Before GERSTEN, FLETCHER, and RAMIREZ, JJ.

PER CURIAM.

Appellant Elsa Sierra appeals an adverse summary judgment in her legal malpractice action against Jerome Shevin, Esq. and Jerome H. Shevin, P.A. Because there are numerous issues of material fact and the trial court improperly weighed credibility, we reverse.

Sierra hired Shevin to represent her in her litigation against Equitable Life Assurance Society of the United States. Sierra applied for and was accepted for a disability

767 So.2d 525
income insurance policy in April 1989. In completing the policy application, Sierra failed to record her having consulted two physicians for treatment for bronchitis and/or flu-like symptoms in November 1988. In addition, she failed to record the diagnosis of one of these doctors that she was suffering from reactionary depression

During the summer of 1991, Sierra filed a claim under her disability income insurance policy. Shortly thereafter, Equitable instituted a lawsuit in federal court in order to rescind the insurance policy due to the existence of a pre-existing condition of depression, and Sierra hired Shevin to represent her. The district court judge denied Equitable's motion for summary judgment and the case proceeded to trial by jury.

At that trial, Jeffrey Moskowitz, Equitable's former chief underwriter for disability and major-medical product lines, testified that Equitable's standards prevented Equitable from extending a policy to an individual with depressive problems. He stated that, if the previous doctor visits from November 1988 had been revealed, Sierra's application would have been rejected. No expert witness was brought in to rebut Moskowitz's testimony. The jury returned a verdict in Equitable's favor. Sierra appealed, but the appeal was dismissed as untimely filed.

Sierra then instituted the present litigation against Shevin based on allegations of professional negligence. When Shevin filed a motion for summary judgment, Sierra countered with two affidavits, one from a legal malpractice expert and the other from an...

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    ...of review of a summary judgment is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla.2000); Sierra v. Shevin, 767 So.2d 524 (Fla. 3d DCA 2000). In order to determine the propriety of a summary judgment, this court must resolve whether there is any "genuine issue ......
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    ...summary judgment is de novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000); Sierra v. Shevin, 767 So.2d 524, 525 (Fla. 3d DCA 2000). Additionally, constitutional challenges to statutes or ordinances involve pure questions of law, and therefore, the plaintiff......
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    ...(summary judgment in favor of law firm affirmed because no expert testimony proffered at summary judgment stage).[8] Sierra v. Shevin, 767 So. 2d 524 (Fla. 3d Dist. Ct. App. 2000). See also Dadic v. Schneider, 722 So. 2d 921 (Fla. 4th Dist. Ct. App. 1998) (although both sides filed affidavi......

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