Espinosa v. Sparber, Shevin, Shapo, Rosen and Heilbronner
| Decision Date | 04 February 1993 |
| Docket Number | No. 79085,79085 |
| Citation | 612 So.2d 1378 |
| Court | Florida Supreme Court |
| Parties | 18 Fla. L. Weekly S98 Marta ESPINOSA, et al., Petitioners, v. SPARBER, SHEVIN, SHAPO, ROSEN AND HEILBRONNER, et al., Respondents. |
Fred E. Glickman, Miami, for petitioners.
Jeffrey M. Weissman of Weissman, Lichtman & Dervishi, P.A., Fort Lauderdale, and Lenard H. Gorman of Lenard H. Gorman, P.A., Miami, for respondents.
We review Espinosa v. Sparber, Shevin, Shapo, Rosen & Heilbronner, 586 So.2d 1221 (Fla. 3d DCA 1991), which involves the following question of great public importance certified in an unpublished order dated September 17, 1991:
UNDER THE FACTS OF THIS CASE ... MAY A LAWSUIT ALLEGING PROFESSIONAL MALPRACTICE BE BROUGHT, ON BEHALF OF PATRICIA AZCUNCE, AGAINST THE DRAFTSMAN OF THE SECOND CODICIL?
We have jurisdiction pursuant to article V, section 3(b)(4) of the Florida Constitution. We answer the question in the negative and approve the decision of the district court.
Howard Roskin, a member of the Sparber, Shevin law firm, drafted a will for Rene Azcunce, the testator. At the time he signed his will, Rene and his wife, Marta, had three children, Lisette, Natalie, and Gabriel. Article Seventeenth of the Will specifically provided that:
(a) References in this, my Last Will and Testament, to my children, shall be construed to mean my daughters, LISSETE AZCUNCE and NATALIE AZCUNCE, and my son, GABRIEL AZCUNCE.
(b) References in this, my Last Will and Testament, to my "issue," shall be construed to mean my children [as defined in Paragraph (a), above] and their legitimate natural born and legally adopted lineal descendants.
Article Fourth of the will established a trust for the benefit of Marta and the three named children and also granted Marta a power of appointment to distribute all or a portion of the trust to the named children and their issue. In addition, the will provided that, upon Marta's death, the trust was to be divided into equal shares for each of the three named children.
Neither the will nor the first codicil to the will, executed on August 8, 1983, made any provisions for after-born children. On March 14, 1984, Patricia Azcunce was born as the fourth child of Rene and Marta. Rene contacted Roskin and communicated his desire to include Patricia in his will. In response, Roskin drafted a new will that provided for Patricia and also restructured the trust. However, due to a disagreement between Rene and Roskin on the amount of available assets, Rene never signed the second will. Instead, on June 25, 1986, he executed a second codicil drafted by Roskin that changed the identity of the co-trustee and co-personal representative, but did not provide for the after-born child, Patricia. When Rene died on December 30, 1986, he had never executed any document that provided for Patricia. 1
Marta brought a malpractice action on behalf of Patricia and the estate against Roskin and his law firm. The trial court dismissed the complaint with prejudice for lack of privity and entered final summary judgment for Roskin and his firm. The Third District Court of Appeal reversed the dismissal with regard to the estate, affirmed it with regard to Patricia, and certified the question of whether Patricia has standing to bring a legal malpractice action under the facts of this case.
An attorney's liability for negligence in the performance of his or her professional duties is limited to clients with whom the attorney shares privity of contract. Angel, Cohen & Rogovin v. Oberon Investments, N.V., 512 So.2d 192 (Fla.1987). In a legal context, the term "privity" is a word of art derived from the common law of contracts and used to describe the relationship of persons who are parties to a contract. Baskerville-Donovan Engineers, Inc. v. Pensacola Executive House Condominium Ass'n, Inc., 581 So.2d 1301 (Fla.1991). To bring a legal malpractice action, the plaintiff must either be in privity with the attorney, wherein one party has a direct obligation to another, or, alternatively, the plaintiff must be an intended third-party beneficiary. In the instant case, Patricia Azcunce does not fit into either category of proper plaintiffs.
In the area of will drafting, a limited exception to the strict privity requirement has been allowed where it can be...
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Blair v. Ing, No. 22401.
...the testamentary instrument is valid on its face, these jurisdictions deny a non-client's malpractice cause of action. See, e.g., Espinosa, 612 So. 2d at 1380; Schreiner, 410 N.W.2d at 683; Noble, 709 A.2d at 1276; Mieras v. DeBona, 452 Mich. 278, 550 N.W.2d 202, 209 (1996). However, severa......
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Mieras v. DeBona, Docket No. 100259
...of extrinsic evidence are found in Lucas v. Hamm, 56 Cal.2d 583, 588, 15 Cal.Rptr. 821, 364 P.2d 685 (1961), Guy, supra, Espinosa v. Sparber, 612 So.2d 1378 (Fla., 1993), and DeMaris v. Asti, supra. In Lucas, the beneficiaries of a will brought suit against the drafter of the will, alleging......
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Calvert v. Scharf
...intent as expressed in the will is frustrated by the negligence of the testator's attorney. Espinosa v. Sparber, Shevin, Shapo, Rosen & Heilbronner, 612 So.2d 1378, 1380 (Fla.1993). See also Walker v. Lawson, 526 N.E.2d 968, 968 (Ind.1988) ("[A]n action will lie by a beneficiary under a wil......
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Noble v. Bruce
...tendency to manufacture false evidence that cannot be rebutted due to the unavailability of the testator." Espinosa v. Sparber, Shevin, et al., 612 So.2d 1378, 1379, 1380 (Fla.1993). The will is a "legal document that affords people a clear opportunity to express the way in which they desir......
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Negligence cases
...client in engaging the services of the lawyer was to benefit a third party.” Espinosa v. Sparber, Shevin, Shapo, Rosen and Heilbronner , 612 So.2d 1378, 1380 (Fla. 1993). See also Hare v. Miller, Canfield, Paddock and Stone , 743 So.2d 551, 553 (Fla. 4th DCA 1999); Noyes v. Universal Underw......
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1-3 First Predicate: Attorney's Employment
...limited to clients with whom the attorney shares privity of contract." See Espinosa v. Sparber, Shevin, Shapo, Rosen and Heilbron-ner, 612 So. 2d 1378, 1379 (Fla. 1993) (citing Angel, Cohen and Rogovin v. Oberon Inv., N.V., 512 So. 2d 192 (Fla. 1987)). Florida recognizes a limited exception......
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9-3 Attorneys' Fees
...1990).[26] Espinosa v. Sparber, Shevin, Shapo, Rosen & Heilbronner, 586 So. 2d 1221 (Fla. 3d Dist. Ct. App. 1991), decision approved, 612 So. 2d 1378 (Fla. 1993).[27] Espinosa v. Sparber, Shevin, Shapo, Rosen & Heilbronner, 586 So. 2d 1221, 1224 (Fla. 3d Dist. Ct. App. 1991), decision appro......