Gresham v. Strickland, 4D00-194.

• Decision Date: 16 May 2001
• Docket Number: No. 4D00-194.,4D00-194.
• Citation: 784 So.2d 578
• Parties: Elvie GRESHAM, Renard Gresham, Randy Gresham, Joel Gresham, and Wyman Gresham, Appellants, v. Wilton L. STRICKLAND, Strickland and Seidule, P.A., Appellees.
• Court: Florida District Court of Appeals

784 So.2d 578

Elvie GRESHAM, Renard Gresham, Randy Gresham, Joel Gresham, and Wyman Gresham, Appellants, v. Wilton L. STRICKLAND, Strickland and Seidule, P.A., Appellees.

No. 4D00-194.

District Court of Appeal of Florida, Fourth District.

May 16, 2001.

Warren R. Trazenfeld of Warren R. Trazenfeld, P.A., Miami, for appellants.

William Zei of Peterson, Bernard, Vandenberg, Zei, Geisler & Martin, Fort Lauderdale, and Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., Palm Beach Gardens, for appellees.

WARNER, C.J.

This is an appeal from a final summary judgment entered against appellants in their legal malpractice action against appellee, an attorney. Appellee represented appellants, all beneficiaries of an estate, in connection with the estate's claim for the decedent's wrongful death. Appellants alleged that because their attorney, who was not the attorney for the estate, failed to investigate and properly advise them of the potential punitive damage claim, the punitive damage claim was waived in return for an admission of liability. Later, however, appellants discovered that the claim had significant value and sued their attorney. We hold that because the claim for punitive damages rested solely with the personal representative of the estate, appellants' attorney had no independent duty to investigate the claim, and in any event, no damages accrued to appellants as individual beneficiaries.

Jose Gresham, the decedent, died as a result of a train accident in South Carolina. He left behind seven children, from two different marriages. One of the children of the first marriage, Jo Ann Gresham, was appointed personal representative of the estate and retained Krupnick, Campbell, Malone, Roselli, Buser, Slama, and Hancock, P.A., to pursue a wrongful death action against National Railroad Passenger Corporation (Amtrak) and CSX Transportation, Inc. Appellants, the five children from the second marriage, hired appellee Wilton Strickland to represent their interests, even though they understood that only Jo Ann, as personal representative, could bring suit.

After being retained, Strickland wrote a letter to CSX's claims representative stating that he represented five of the beneficiaries. His letter acknowledged that Jo Ann had the authority to act on behalf of any estate claims but not with respect to any survivor claims. In conversations with the CSX representative, CSX took the position that it would not discuss any claims for wrongful death with anyone other than the personal representative. Strickland also wrote to Jon Krupnick, lead counsel for the personal representative, informing him that he was not authorized to act on behalf of the five children Strickland represented.

Six months later, Krupnick wrote Strickland, asking him for appellants' consent to a CSX proposal wherein it agreed to stipulate to liability for the accident if the estate would agree to waive punitive damages. He ended his request by stating, "I'm not sure if I technically need your approval, but I think our interests are mutual and I, of course, want to keep you advised of the progress of this case." Krupnick's plan was to file a wrongful death action in Florida and then to pursue a survivor's action in South Carolina.

Strickland then discussed this suggestion with some or all of his clients. Some of them said he told them that punitive damages were not recoverable at all under Florida law. Some stated that they did not consent to waiving punitive damages. Nevertheless, Strickland sent Krupnick appellants' consent to waive punitive damages. Krupnick then filed suit and obtained a $2.8 million verdict for the estate and beneficiaries, each beneficiary recovering $400,000. On appeal, this court affirmed that judgment in May of 1995. See Nat'l R.R. Passenger Corp. (Amtrak) v. Ahmed, 653 So.2d 1055 (Fla. 4th DCA 1995)

. Unfortunately, the second half of Krupnick's plan did not fare so well. A survivor's action was filed in South Carolina, but summary judgment was entered in favor of the railroad based upon the res judicata effect of the Florida action.

In the meantime, the family of another train passenger, Paul Palank, was also pursuing an action against CSX. However, unlike the Gresham case, the attorneys for the Palank estate did not waive its punitive damage claim. When the Palank verdict was entered in 1997, the estate recovered $6.1 million in compensatory damages and $50 million in punitive damages for the accident. When appellants learned of this substantial punitive damage award, they hired an attorney and filed suit against Strickland in December 1997. When Jo Ann, the personal representative, learned of the Strickland lawsuit, she decided to join it. In March 1998, an amended complaint was filed naming as defendants both the Krupnick law firm and later the estate attorney Raymond Posgay.

After much discovery, motions for summary judgment were filed by the attorney defendants. However, before a ruling on them, Krupnick and Posgay settled with Jo Ann, as personal representative of the estate. The trial court then ruled in Strickland's favor on summary judgment, leading to this appeal.

For a party to recover for legal malpractice, three elements must be proven: (1) the attorney was employed by or in privity with the plaintiff(s); (2) the attorney neglected a reasonable duty to the client(s); and (3) the negligence proximately caused any loss to the plaintiff(s). Dadic v. Schneider, 722 So.2d 921, 923 (Fla. 4th DCA 1998). We conclude as a matter of law that neither element two nor three is present in this case, as a matter of law.

First, in Florida, the right to bring a punitive damages claim for wrongful death belongs exclusively to the personal...