Holt v. Rowell

• Decision Date: 22 August 2001
• Docket Number: No. 2D00-2685.,2D00-2685.
• Citation: 798 So.2d 767
• Parties: Julianne M. HOLT, Office of the Public Defender, Appellant, v. John C. ROWELL, Appellee.
• Court: Florida District Court of Appeals

798 So.2d 767

Julianne M. HOLT, Office of the Public Defender, Appellant, v. John C. ROWELL, Appellee.

No. 2D00-2685.

District Court of Appeal of Florida, Second District.

August 22, 2001.

Bruce A. Walkley of Walkley & Walkley, Tampa, for Appellant. James W. Holliday of Prugh & Associates, Tampa, for Appellee.

VILLANTI, CRAIG C., Associate Judge.

Julianne M. Holt, on behalf of the Office of the Public Defender of the Thirteenth Judicial Circuit of Hillsborough County, appeals a judgment in the amount of $17,004 entered in favor of John C. Rowell in a legal malpractice action. We affirm that portion of the judgment finding Ms. Holt's employees negligent in their representation of Mr. Rowell and awarding him damages for his lost earning capacity. We reverse, however, that portion of the judgment awarding Mr. Rowell "loss of liberty" damages based upon the emotional or psychological harm caused when the malpractice resulted in his extended incarceration. We conclude that the impact rule, as currently applied in Florida, prohibits Mr. Rowell from recovering emotional or psychological damages, because Mr. Rowell suffered no impact and no physical injury resulting from the emotional or psychological harm. Because the impact rule has not been previously applied in this context in Florida, and because we question whether it should be applied to bar the recovery of loss of liberty damages when a criminal defense attorney's negligence results in a client's unnecessary incarceration, we certify to the Supreme Court of Florida a question of great public importance regarding whether the impact rule should apply to prohibit the recovery of noneconomic damages in a legal malpractice claim when the negligence of a criminal defense attorney results in a loss of liberty and resulting emotional or psychological harm.

In May 1995, John Rowell sold two firearms to a pawnshop. Based upon these sales, Mr. Rowell was arrested on July 6, 1995, in Marion County, Florida, for two counts of felon in possession of a firearm. In fact, Mr. Rowell was innocent of these charges. Although Mr. Rowell had been convicted of a felony in 1966 when he was 22 years of age, he had received a restoration of his civil rights on June 18, 1975. Mr. Rowell was unable to convince the arresting officers that he was innocent of the crimes charged. He was transported to the Hillsborough County Jail, where he remained overnight until his first appearance hearing scheduled for the following morning, July 7, 1995.

In the Thirteenth Judicial Circuit, preliminary presentation hearings are often performed via closed circuit television. The defendants are physically located at the jail, and an assistant public defender is assigned to this location. A second assistant public defender is present in the courtroom with the presiding judge and the assistant state attorney.

At Mr. Rowell's preliminary presentation hearing on the morning of Friday, July 7, an assistant public defender at the jail spoke with Mr. Rowell, and Mr. Rowell signed an affidavit of indigency and an invocation of rights, thus establishing an attorney-client relationship with the Office of the Public Defender. Mr. Rowell had in his possession a document indicating that his civil rights had been restored. When the trial judge called Mr. Rowell's case, Mr. Rowell told the trial judge directly that he had proof of the restoration of his civil rights and held up the document. Because the trial judge could not see the contents of the document, the trial judge instructed the assistant public defender to obtain a copy of that document so that the case could be resolved if Mr. Rowell was indeed permitted to possess a firearm. On the videotape of this event, Mr. Rowell can be seen handing the document to the assistant public defender at the jail. It is not clear what the assistant public defender who received the document did with it after this hearing. At the time of trial, the assistant public defender could not remember following up on the judge's instructions.

The first appearance judge, concerned that Mr. Rowell might be wrongfully charged, ordered that Mr. Rowell's case be placed on the docket for review on Tuesday, July 11, four days later. This hearing never occurred. According to the assistant public defenders involved in this case, they took no responsibility in keeping track of these types of hearings; instead, they traditionally relied exclusively upon the clerk of the court to properly document and schedule them. It appears that the clerk in this case mistakenly noted that the hearing would be held on July 15, a Saturday on which no hearings were held. Although hearings presumably occurred before this judge with the participation of assistant public defenders on July 11, Mr. Rowell's case was not addressed. As a result, Mr. Rowell remained in jail past July 11 and July 15.

Meanwhile, through the natural process of opening files, Mr. Rowell's case was assigned to a third assistant public defender. This attorney first reviewed the file on July 12, 1995. The file did not contain the document indicating Mr. Rowell's civil rights had been restored or any notation that a hearing had been scheduled. The assistant public defender therefore gave the case no particular priority, but scheduled his first visit with Mr. Rowell at the jail on July 18, 1995. Once this assistant public defender met with Mr. Rowell on July 18, and Mr. Rowell provided the attorney with yet another copy of the document restoring Mr. Rowell's civil rights, the assistant public defender was able to obtain Mr. Rowell's release from jail within two days. The charges against Mr. Rowell were ultimately dismissed.

Mr. Rowell filed a legal malpractice action against the Office of the Public Defender. At trial, he contended that the assistant public defenders handling his case were negligent, because he presented them with a document that could have secured his immediate release, yet it took them over ten days to do so. As a result, he requested damages including his lost earning capacity and damages for his "loss of liberty," including the mental anguish, inconvenience, and embarrassment caused by his unnecessarily extended incarceration.

Throughout the trial, counsel for the Office of the Public Defender sought to limit Mr. Rowell's recovery to his economic damages because Mr. Rowell had not suffered any impact or physical injury as a result of his incarceration. The trial judge rejected this argument and held that the "impact rule" did not apply in this context. During the charge conference for the jury instructions, this issue was addressed again because there was no standard jury instruction discussing noneconomic damages in a legal malpractice case. To fill this gap, the trial judge used an instruction derived from the standard jury instruction for malicious prosecution. See Fla. Std. Jury Instr. (Civ.) MI 5.2(a). See also Fla. Std. Jury Instr. (Civ.) MI 6.1(j) (allowing the adaptation of the instruction for damages for malicious prosecution to instructions for false imprisonment).

The jury found that the assistant public defenders were negligent, and their negligence caused Mr. Rowell to suffer certain damages. They awarded Mr. Rowell $504 for his loss of earning capacity and $16,500 for his mental anguish, pain, and suffering. After the verdict, the Office of the Public Defender filed a motion for judgment notwithstanding the verdict, again challenging the award of noneconomic damages as a violation of the impact rule. The trial court denied this motion and entered a final judgment in favor of Mr. Rowell in accordance with the jury's verdict.

We affirm without further comment the jury's finding of liability because it was supported by competent, substantial evidence. Based upon the current state of the law in Florida, however, we reverse the award of noneconomic damages, i.e., the emotional or psychological damages associated with Mr. Rowell's loss of liberty. We conclude that the current state of the law requires us to apply the impact rule to this case to preclude those damages, though we do so with some misgivings.

The impact rule is a doctrine intended to limit a plaintiff's recovery in negligence for damages that are purely emotional or psychological. As first applied in Florida, the impact rule prohibited a plaintiff from recovering for purely psychological or emotional damages in a negligence action in the absence of some direct physical impact caused by the defendant's negligence, or proof that the defendant's actions reflected willfulness, wantonness, or malice. See Crane v. Loftin, 70 So.2d 574 (Fla.1954)

. Because the strict application of the rule could work injustices in certain cases, the Florida Supreme Court modified the rule and created specific, limited exceptions to its application. In Champion v. Gray, 478 So.2d 17 (Fla. 1985), the supreme court modified the rule to allow recovery for emotional or psychological damages when the plaintiff suffered death or a significant discernible physical injury caused by the psychological trauma resulting from witnessing the injury or death of a close family member caused by the negligence of the defendant.¹ Since Champion, the supreme court has recognized other specific situations in which the rule does not apply. See Tanner v. Hartog, 696 So.2d 705, 708 (Fla.1997) (refusing to apply the impact rule in an action for emotional damages resulting from the birth of a stillborn child because of the defendant's negligence); Kush v. Lloyd, 616 So.2d 415 (Fla.1992) (holding that the impact rule does not apply to the tort of wrongful birth; noting that the impact rule does not generally apply in recognized torts where the damages are predominately emotional, such as defamation or invasion of privacy).

Although the supreme court has created limited exceptions to the impact doctrine, it has continually reaffirmed the principles espoused by the doctrine and denied...