Conley v. Shutts & Bowen, P.A.
| Decision Date | 23 March 1993 |
| Docket Number | No. 92-407,92-407 |
| Citation | 616 So.2d 523 |
| Court | Florida District Court of Appeals |
| Parties | 18 Fla. L. Week. D789 Daniel CONLEY, Appellant, v. SHUTTS & BOWEN, P.A., and Mark Bisbing, Appellees. |
Perse & Ginsberg and Edward Perse, Ratiner & Glinn, Miami, for appellant.
Murai, Wald, Biondo & Moreno and Marianne A. Vos, Miami, for appellees.
Before BASKIN, COPE and GODERICH, JJ.
Daniel Conley appeals an order dismissing with prejudice a legal malpractice action he filed against Shutts & Bowen, P.A a law firm, and Mark Bisbing, an attorney employed by Shutts & Bowen.
Conley acted as the withholding agent, for Internal Revenue Service [IRS] purposes, in a transaction involving the sale of certain notes and mortgages. Defendants advised Conley concerning his tax obligations as withholding agent. Following completion of the transactions, the IRS conducted an audit culminating in issuance of an examination report finding Conley, as the withholding agent, liable for additional taxes, penalties and interest. Defendants did not acknowledge that their tax advice was incorrect. Subsequently, Conley filed a protest with the IRS appeals division. During the pendency of the IRS appeal, Conley filed a complaint alleging a legal malpractice claim against defendants and seeking damages for additional taxes, penalties and interest assessed by the IRS as well as accountant's and attorney's fees and costs incurred in the IRS proceeding. The parties agreed to abate the malpractice action pending resolution of the appeal. Following resolution of the IRS appeal, Conley filed an amended complaint that deleted the request for damages for amounts assessed by the IRS. Granting defendants' motion to dismiss, the trial court dismissed the amended complaint with prejudice. We affirm.
At issue is whether Conley's amended complaint alleges sufficient ultimate facts to state a cause of action for legal malpractice. See Rios v. McDermott, Will & Emery, 613 So.2d 544 (Fla. 3d DCA 1993); Riccio v. Stein, 559 So.2d 1207 (Fla.3d DCA 1990). The amended complaint alleges: Conley requested tax advice from defendants concerning his obligations as the withholding agent; defendants breached their duty of care by giving him incorrect tax advice; the amounts Conley withheld were based on defendants' advice; the IRS issued a tax letter which assessed additional taxes, interest and penalties against Conley; the IRS claim was resolved following Conley's protest in the appeals division; and defendants' negligence was a legal cause of the IRS proceeding and the attorney's and accountant's fees incurred in connection with that proceeding. The complaint does not contain any allegations concerning the outcome of the IRS appeal; it merely states that the claim was resolved.
Under the facts of this case, the disposition of the appeal is the critical event establishing "the existence of redressable harm." Peat, Marwick, Mitchell & Co. v. Lane, 565 So.2d 1323, 1325 (Fla.1990). Cf. Sharff, Wittmer & Kurtz, P.A. v. Messana, 581 So.2d 906, 908 (Fla. 3d DCA) (Schwartz, C.J., specially concurring) (), review denied, 592 So.2d 681 (Fla.1991). The complaint before us fails to allege whether IRS error or defendants' error was the proximate cause of Conley's losses. Where, as here, Conley appealed the IRS ruling, the allegation that the IRS investigated the transaction and initially issued a tax letter does not establish that defendants neglected a reasonable duty which was the proximate cause of Conley's losses. Clearly, an allegation setting forth the disposition of the underlying proceeding is an ultimate fact that Conley must plead to state a cause of action for legal malpractice against defendants. See Lane, 565 So.2d at 1324; Pennsylvania Ins. Guar. Ass'n v. Sikes, 590 So.2d 1051, 1052 (Fla.3d DCA 1991) (...
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Jones v. Law Firm of Hill and Ponton
...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.1993); Pennsylvania Ins. Guar. Ass'n v. Sikes, 590 So.2d 1051, 1052 Recently, the Supreme Court of Florida stated that in a......
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Conley v. Shutts & Bowen, P.A.
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