Espinosa v. Sparber, Shevin, Shapo, Rosen & Heilbronner, 90-6

• Decision Date: 17 September 1991
• Docket Number: No. 90-6,90-6
• Citation: 586 So.2d 1221
• Parties: Marta ESPINOSA, as natural guardian and next friend of Patricia Azcunce, Natalie Azcunce, and Gabriel Azcunce, all minors, and as Personal Representative of the Estate of Rene Azcunce, Deceased, and as Trustee of the Rene Azcunce Trust; and Lissette Azcunce, Appellants, v. SPARBER, SHEVIN, SHAPO, ROSEN & HEILBRONNER, et al., Appellees. 586 So.2d 1221, 16 Fla. L. Week. D2452
• Court: Florida District Court of Appeals

Page 1221

586 So.2d 1221

Marta ESPINOSA, as natural guardian and next friend of Patricia Azcunce, Natalie Azcunce, and Gabriel Azcunce, all minors, and as Personal Representative of the Estate of Rene Azcunce, Deceased, and as Trustee of the Rene Azcunce Trust; and Lissette Azcunce, Appellants, v. SPARBER, SHEVIN, SHAPO, ROSEN & HEILBRONNER, et al., Appellees.

No. 90-6.

586 So.2d 1221, 16 Fla. L. Week. D2452

District Court of Appeal of Florida Third District.

Sept. 17, 1991.

Rehearing Denied Nov. 6, 1991.

Fred E. Glickman, Miami, for appellants.

Weissman & Lichtman and Jeffrey M. Weissman, Ft. Lauderdale, for appellees.

Before HUBBART, LEVY and GERSTEN, JJ.

HUBBART, Judge.

This is an appeal by a surviving spouse, as guardian of her three minor children and personal representative of the estate of her deceased husband, and by the deceased's adult daughter from an adverse final summary judgment which dismisses with prejudice their legal malpractice action below. We affirm the final summary judgment under review as to the claims of the deceased's children for lack of privity with the defendant lawyers, but reverse the said judgment as to the claim of the deceased's estate.

I

The relevant facts of this case are, for purposes of this appeal, entirely undisputed. Marta Espinosa, as the natural guardian of her three minor children Patricia, Natalie, and Gabriel Azcunce--and as personal representative of the estate of her deceased husband Rene Azcunce--together with Lissette Azcunce, the adult daughter of Marta and Rene (Marta has since remarried), brought a legal malpractice action against the defendant Howard Roskin and his law firm, Sparber, Shevin, Shapo, Rosen, & Heilbronner, P.A. In this action, the plaintiffs alleged that the deceased Rene Azcunce hired the defendant lawyers to prepare a will and later two codicils thereto; that the deceased in his will created a testamentary trust for his children, Natalie, Gabriel, and Lissette, but made no provision for after-born children; that the first codicil likewise made no provision for after-born children; that the testator's daughter Patricia was born after the will and first codicil were executed; that the second codicil made no provision for Patricia although she was alive at that point; that the deceased at all times intended to treat all his children, including Patricia, equally under the will; and that the defendant lawyers breached a duty to the plaintiffs by failing to provide for after-born children in the will and first codicil--or to correct that omission by providing for Patricia in the second codicil as the testator intended. Upon the defendants' motion, the trial court dismissed this complaint with prejudice for lack of privity, and, based in part on the trial record in the companion probate case, see Azcunce v. Estate of Azcunce, 586 So.2d 1216 (Fla. 3d DCA 1991), which the parties proffered, entered final summary judgment for the defendants. The plaintiffs appeal.

II

The Florida Supreme Court in Angel, Cohen & Rogovin v. Oberon Investment, N.V., 512 So.2d 192 (Fla.1987), states the controlling law as to who may bring a legal malpractice action against an attorney:

"Florida courts have uniformly limited attorneys' liability for negligence in the performance of their professional duties to clients with whom they share privity of contract. Ginsberg v. Chastain, 501 So.2d 27 (Fla. 3d DCA 1986); Drawdy [v. Sapp, 365 So.2d 461 (Fla. 1st DCA 1978) ]; Adams v. Chenowith, 349 So.2d 230 (Fla. 4th DCA 1977). The only instances in Florida where this rule of privity has been relaxed is where it was the apparent intent of the client to benefit a third party. The most obvious example of this is the area of will drafting. Lorraine v. Grover, Ciment, Weinstein, & Stauber, P.A., 467 So.2d 315 (Fla.3d DCA 1985); DeMaris v. Asti, 426 So.2d 1153 (Fla. 3d DCA 1983); McAbee v. Edwards, 340 So.2d 1167 (Fla. 4th DCA 1976). Florida courts have refused to expand this exception to include incidental third-party beneficiaries. For the beneficiaries' action in negligence to fall within the exception to the privity requirement, testamentary intent as expressed in the will must be frustrated by the attorney's negligence and as a direct result of such negligence the beneficiaries' legacy is lost or diminished. We see no reason to expand this limited exception and specifically reject the invitation to adopt California's balancing of factors test. Biakanja v. Irving, 49 Cal.2d 647, 320 P.2d 16 (1958)."

512 So.2d at 194.

The so-called will-drafting exception to the aforesaid privity requirement is an extremely limited one. Only where the testator's intent as expressed in the will itself, not as shown by extrinsic evidence, is frustrated due to the negligence of the testator's attorney--does the frustrated beneficiary of the will have a legal malpractice action against the testator's lawyer. For example, where (1) the testator makes a will leaving all her property to her daughter and remarries thereafter, (2) hires a lawyer to make certain that her daughter remains the sole beneficiary under the will after her remarriage, and is negligently assured by the lawyer that no change was necessary to effect this intention, and (3) upon her death, her husband takes a statutory share of her estate as a pretermitted husband--it has been held that the daughter has a legal malpractice action against the testator's lawyer; this is so because the testator's testamentary intent, as expressed in the will, to leave all her property to her daughter was frustrated due to the lawyer's negligent failure to draft a new will specifically excluding the testator's new husband and again leaving all her property to the daughter. McAbee v. Edwards, 340 So.2d 1167 (Fla. 4th DCA 1976). As we stated in DeMaris v. Asti, 426 So.2d 1153 (Fla. 3d DCA 1983):

"An attorney preparing a will has a duty not only to the testator-client, but also to the testator's intended beneficiaries, who may maintain a legal malpractice action against the attorney on theories of either tort (negligence) or contract (as third-party beneficiaries). McAbee v. Edwards, 340 So.2d 1167 (Fla. 4th DCA 1976). However, liability to the testamentary beneficiary can arise only if, due to the attorney's professional negligence, the testamentary intent, as expressed in the will, is frustrated, and the beneficiary's legacy is lost or diminished as a direct result of that negligence. [e.s.] Ventura County Humane Society for the Prevention of Cruelty to Children and Animals, Inc. v. Holloway, 40 Cal.App.3d 897, 115 Cal.Rptr. 464 (1974). There is no authority--the reasons being obvious--for the proposition that a disappointed beneficiary may prove, by evidence totally extrinsic to the will, the testator's testamentary intent was other than as expressed in his solemn and properly executed will."

426 So.2d at 1154 (footnote omitted; emphasis in original).

The estate of the testator, on the other hand, may maintain a legal malpractice action against the testator's attorney for any acts of professional negligence committed by the attorney in the course of the latter's representation of the testator--as the privity requirement for a legal malpractice action is obviously satisfied. The damages, however, which the estate may recover for the attorney's negligent failure to include an intended beneficiary in the will are limited. Clearly, the testator's estate should be entitled to a return of the attorney's fee paid by the testator to the lawyer, as well as any costs and fees incurred in defending the estate against any action generated by the lawyer's negligence, such as an action brought by the omitted beneficiary to receive a share of the estate. See Dayton v. Conger, 448 So.2d 609, 611 (Fla. 3d DCA 1984) (recognizing that fees from separate litigation may be recovered as special damages in an action between one of the parties to the separate litigation and the party allegedly creating the need for the litigation); State Farm Fire & Casualty Co. v. Pritcher, 546 So.2d 1060 (Fla. 3d DCA 1989) (same; wrongful act doctrine). On the other hand, the estate should not be able to recover the amount of the bequest which the testator intended to leave to the omitted beneficiary because the estate was clearly not diminished and therefore not injured by such negligence. Heyer v. Flaig, 70 Cal.2d 223, 74 Cal.Rptr. 225, 229, 449 P.2d 161, 165 (1969).

III

Turning to the instant case, we have no trouble in concluding that the children of the testator herein have no legal malpractice action against the testator's lawyers. These children are obviously not in privity with these lawyers and do not otherwise qualify under the will-drafting exception to the privity requirement. As to the will-drafting exception, the testator's intent as expressed in the will was in no way frustrated by the alleged negligence of the testator's lawyers in failing to provide for Patricia in the will or codicils, as the will and codicils, by definition, do not purport to leave anything to Patricia. Beyond that, Lissette, Natalie, and Gabriel suffered no damages whatever by the failure to include Patricia in the testamentary disposition; to the contrary, they gained a greater share of the estate because of such omission.

Patricia argues, however, that the testator's intent as established by certain extrinsic evidence ¹ was frustrated by the alleged negligence of the testator's lawyers in that the latter failed to provide for Patricia in the will and codicils as the testator allegedly intended. The fatal flaw in this argument is that such extrinsic evidence is totally inadmissible to establish the testator's intent; in order to invoke the will-drafting exception to the rule of privity in attorney malpractice actions, testamentary intent may only be established through the will itself. Angel, Cohen & Rogovin; DeMaris. This necessarily means that a disappointed beneficiary, as here,...