Rushing v. Bosse

Decision Date08 March 1995
Docket NumberNo. 93-3588,93-3588
Citation652 So.2d 869
Parties, 20 Fla. L. Weekly D583 Nancy Grace RUSHING, Terri Ruth Carter, and Robert Stanley Stone as Next Friend of Tiffany Dawn Moore, a Minor, Appellants, v. Richard E. BOSSE, Charles, R. Chilton, and Sharit, Bunn, Chilton & Holden, P.A., Appellees.
CourtFlorida District Court of Appeals

Patrick Dekle, Tampa, and Peter J. Grilli of Grilli and Cook, Tampa, for appellants.

Richard E. Bosse, pro se.

Matthew R. Danahy of Shofi, Smith, Hennen, Jenkins, Stanley & Gramovot, P.A., Tampa, for appellees--Chilton and Sharit, Bunn, Chilton & Holden, P.A.

PARIENTE, Judge.

This appeal involves the propriety of dismissing appellants' amended complaint alleging misconduct by the attorneys who instituted and continued a private adoption proceeding resulting in the minor child's removal from the state of Florida and from the care of her grandmother and great-grandmother for a ten-month period. The amended complaint consisted of four counts--professional negligence, malicious prosecution, civil conspiracy and intentional infliction of emotional distress.

In reviewing the propriety of dismissing the amended complaint, we confine our analysis to what appears within the four corners of the amended complaint, and must accept as true the well-pleaded allegations. Kittredge v. Metropolitan Life Ins. Co., 577 So.2d 999 (Fla. 4th DCA 1991); Aaron v. Allstate Ins. Co., 559 So.2d 275 (Fla. 4th DCA 1990); Vienneau v. Metropolitan Life Ins. Co., 548 So.2d 856 (Fla. 4th DCA 1989). The amended complaint alleged serious wrongdoing on the part of appellees, Richard A. Bosse (Bosse) and Charles R. Chilton (Chilton), both members of the Florida Bar and against Chilton's law firm (collectively, defendants), which caused the two-year old child to be taken from the care of her grandmother and great-grandmother, both of whom had essentially raised the child from birth, and placed out of state with the adoptive parents for a critical period of time. Chilton, in addition to acting as the attorney for the adoptive parents, also acted in the specific capacity as intermediary for the child's placement.

The amended complaint stated that Chilton improperly filed the petition for adoption and that both Chilton and Bosse wrongfully continued the adoption proceeding with knowledge of the harm that would be caused to the child. The amended complaint specifically alleged that, in filing the petition for adoption, Chilton counseled the adoptive parents, Dr. and Mrs. Patsner, to falsify Florida residency in order to circumvent section 63.185 and subsection 63.207(1)(b), Florida Statutes (1991), which prohibit adoptions by out-of-state residents. Further allegations of wrongdoing were that Chilton gave the mother a check for $1,500 to induce her to give him custody of the child, and that both Chilton and Bosse impermissibly gave the mother money labeled as "loans" and paid for hotel expenses. If proven, such behavior would be contrary to subsections 63.212(1)(d) and (f), Florida Statutes (1991).

Additional acts and omissions alleged in the amended complaint include the failure of Chilton to properly investigate prior to the filing of the adoption petition and the failure of both Chilton and Bosse to notify the child's natural father, grandmother or great-grandmother of the pending petition, even though both attorneys knew of their existence. Subsection 63.0425(1), Florida Statutes (1991), requires that when a child, who is to be placed for adoption, has lived with a grandparent for at least 6 months, the intermediary handling the adoption shall notify that grandparent of the pending adoption before the petition for adoption is filed.

PROFESSIONAL NEGLIGENCE (LEGAL MALPRACTICE)

Ordinarily, an attorney's liability for legal malpractice is limited to those with whom the attorney shares privity of contract. See Brennan v. Ruffner, 640 So.2d 143 (Fla. 4th DCA 1994). Defendants argue here, as they did to the trial court below, that legal malpractice is not cognizable in this case because no privity existed between the child and defendants giving rise to a duty owed by defendants to the child. However, despite defendants' protestations, a limited exception to the privity requirement has been carved out where a plaintiff is an intended third-party beneficiary of an attorney's actions and it is the apparent intent of the client to benefit the third party. See Angel, Cohen and Rogovin v. Oberon Inv., N.V., 512 So.2d 192, 193-94 (Fla.1987). We do not read Oberon as creating an exception to the privity requirement limited solely to the area of will drafting. See Greenberg v. Mahoney Adams & Criser, P.A., 614 So.2d 604 (Fla. 1st DCA 1993), review denied, 624 So.2d 267 (Fla.1993). Although privity of contract may create a duty of care providing the basis for recovery in negligence, lack of privity does not necessarily foreclose liability if a duty of care is otherwise established. See Baskerville-Donovan Engineers, Inc. v. Pensacola Executive House Condominium Ass'n, Inc., 581 So.2d 1301, 1303 (Fla.1991).

In this case, not only was the child the intended beneficiary of the adoption, but defendants were the attorneys for the adoptive parents, who evidently intended to benefit the child by adopting her. Compare Brennan. Since Chilton also served as an intermediary for the child, there were additional responsibilities that he owed directly to the child. 1 In this case, we are thus dealing with a private placement adoption through an intermediary.

Adoption proceedings are unique. In an adoption proceeding, the intended beneficiary of the proceeding is the child to be adopted. The Florida Supreme Court has recognized that an adoption pursuant to chapter 63, Florida Statutes (1985), is a civil proceeding intended to serve the best interests of the child. 2 Matter of Adoption of Doe, 543 So.2d 741 (Fla.1989), cert. denied, 493 U.S. 964, 110 S.Ct. 405, 107 L.Ed.2d 371 (1989). In doing so, the court noted subsection 63.022(1), Florida Statutes (1987), which provides: "It is the intent of the Legislature to protect and promote the well-being of persons being adopted and their natural and adoptive parents and to provide to all children who can benefit by it a permanent family life." The supreme court found the legislature made its intent even more explicit by adding subsection 63.022(2)(l ) which states: "In all matters coming before the court pursuant to this act, the court shall enter such orders as it deems necessary and suitable to promote and protect the best interests of the person being adopted." While a duty is imposed on the judiciary in making a decision regarding the best interests of the child, the attorney instituting and advancing the proceeding, and in particular, the attorney/intermediary, must also exercise due care to act in the child's best interests.

Because we hold that a cause of action for professional negligence against the attorney who institutes and proceeds with a private adoption proceeding does not require privity between the child and attorney, we reverse the dismissal of this count brought on behalf of the child. We specifically do not reach the issue, which has not been raised either before the trial court or on appeal, of the nature and extent of legally cognizable damages which could be recovered on the child's behalf as a result of defendants' actions.

MALICIOUS PROSECUTION

We also reverse the dismissal of the malicious prosecution count brought on behalf of the child, but affirm the dismissal of this count brought by the grandmother and great-grandmother. Defendants assert that the adoption proceeding was not technically "against" the child, relying on case law which lists the first essential element of malicious prosecution to be, "(1) an original criminal or civil judicial proceeding against the present plaintiff was commenced or continued." Alamo Rent-A-Car, Inc. v. Mancusi, 632 So.2d 1352, 1355 (Fla.1994); see also Wright v. Yurko, 446 So.2d 1162, 1165 (Fla. 5th DCA 1984). We first note that in listing the essential elements of the tort, the supreme court in Alamo relied on its prior opinions in Burns v. GCC Beverages, Inc., 502 So.2d 1217 (Fla.1986) and Adams v. Whitfield, 290 So.2d 49 (Fla.1974). In both Burns, 502 So.2d at 1218, and Adams, 290 So.2d at 51 (citing Duval Jewelry Company v. Smith, 102 Fla. 717, 136 So. 878 (1931)), the first essential element is stated to be that "(1) the commencement of an original civil or criminal judicial proceeding." 3 None of the earlier supreme court opinions nor prior opinions of this court hold that the plaintiff in the malicious prosecution action must be actually named as the defendant in the first proceeding, see supra note 3, although this would logically follow in most types of civil and criminal proceedings.

The essence of the tort of malicious prosecution is the misuse of legal machinery for an improper purpose. See S.H. Kress & Co. v. Powell, 132 Fla. 471, 180 So. 757 (Fla.1938). Actions for malicious prosecution initially were predicated only on the previous prosecution of criminal proceedings. 24 Fla.Jur.2d, False Imprisonment and Malicious Prosecution Sec. 15 (Supp.1994). Some jurisdictions still do not afford redress for malicious prosecution of a civil action, unless there has been a seizure of property, an arrest of the person or other special circumstances, id.; see also 52 Am.Jur.2d, Malicious Prosecution Sec. 10. In Florida, however, an action for malicious prosecution of a civil action will lie even if there is no arrest or seizure. Tatum Bros. Real Estate & Investment Co. v. Watson, 92 Fla. 278, 109 So. 623 (Fla.1926).

Although no case has dealt with malicious prosecution based on the prior institution of an adoption, there is no sound policy reason to exempt wrongfully filed adoption proceedings from the tort of malicious prosecution, especially where the damage the child is claimed to have...

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