Sauer v. FLANAGAN AND MANIOTIS, PA

• Decision Date: 05 January 2000
• Docket Number: No. 98-2810.,98-2810.
• Parties: Susan A. SAUER, Appellant, v. FLANAGAN AND MANIOTIS, P.A., a corporation; Nicholas Maniotis, Individually; and L. Martin Flanagan, individually, Appellees.
• Court: Florida District Court of Appeals

748 So.2d 1079

Susan A. SAUER, Appellant, v. FLANAGAN AND MANIOTIS, P.A., a corporation; Nicholas Maniotis, Individually; and L. Martin Flanagan, individually, Appellees.

No. 98-2810.

District Court of Appeal of Florida, Fourth District.

January 5, 2000.

Nancy Little Hoffmann of Nancy Little Hoffmann, P.A., Fort Lauderdale, and Michael A. Nugent of Michael A. Nugent, P.A., Lake Worth, for appellant.

Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., Palm Beach Gardens, and Roy R. Watson of Adams, Coogler, Watson & Merkel, P.A., West Palm Beach, for appellees.

STONE, J.

We reverse the summary judgment entered in favor of the appellee/attorneys, except as to the appellee L. Martin Flanagan, because the record reflects that there are substantial fact issues to be resolved by trial. Susan Sauer sued her attorneys for failure to properly advise her regarding the risks involved in rejecting a settlement offer. She claims that, based on their negligent advice, she rejected a million dollar offer of judgment. Sauer asserts that her attorneys negligently informed her, or failed to inform her, of the risks of not accepting the offer of judgment, misinformed her, and failed to properly advise her. The trial resulted in a defense verdict and a judgment for attorney's fees and costs was entered against her based on her rejection of the offer of judgment.

Sauer suffered injuries when she slipped and fell while working in the store where she was employed. She retained the law firm of Flanagan and Maniotis, P.A. to represent her in a negligence action against the store's cleaning service. Sauer claimed that the cleaning service waxed the floors the night before the accident and spilled floor wax on the carpeting, causing her to fall.

When Sauer first met with her attorneys, she believed her case to be a minor one and that she would only miss a few weeks of work with a foot injury. She later developed reflex sympathetic dystrophy, which rendered her totally unable to work and had a serious adverse impact on her life.

Sauer stated in her deposition that her attorneys repeatedly told her that there was no way they were going to lose at trial and that she was going to win more than a million dollars. According to Sauer, Maniotis discussed the offer with her, telling her that after she paid her attorney's fees and paid back worker's compensation, she'd be "stuck with pennies," and that it would be ridiculous to take the offer.

Sauer also stated that Maniotis told her that it was going to be "an open and shut case" and that "[t]here was no way I was going to lose this case." "The only time he said anything different, he said there's always that slight percentage that something screwy is going to go on so I can't put it down in writing but I guarantee you this right now I'm ninety-nine percent sure that this case is going to be won." She testified that Maniotis told her that there was no reason to accept the offer since they were going to win the case at trial and that there was no potential downside in rejecting the offer.

Sauer stated that when she, and her mother, and sister asked Maniotis whether there was a chance that a jury could find against her, Maniotis allegedly stated:

There's always that one in a million chance that some fluke strange thing can happen and you'd lose but it's not going to happen here. I can't put it down—I said, You need to put that down in writing, kind of joking. He said, no, but I can tell you right now I'm ninety-nine point nine percent sure we're going to win this case.

Sauer also stated that Maniotis told her that she would be "crazy" to take the million dollar offer.

Sauer also claims that Maniotis never spoke to her about the risks of going to trial or that she could get less than the million dollars. Their discussions regarding how much she could win were always in the millions. Sauer further testified that when she asked Maniotis whether she could be responsible for paying opposing counsel's attorney's fees if they lost, Maniotis told her "there was definitely no way that would ever happen."

We recognize that Maniotis not only denies making the statements alleged by Sauer, he also testified as to his recollection of the advice and information he gave her and her role in reaching the decision to reject the offer. He wrote her a letter confirming the decision to reject the offer in which he stated that:

We have discussed the pros and cons of rejecting the offer (should this occur) many times throughout the litigation. The Defendant finally offered the policy limits, but far too late. You recognize that there are no guarantees, but both Martin and I believe you will probably get a verdict in excess of $1 million.

Although this letter may be significant evidence favorable to the attorneys, it does not mandate that the court disregard substantial fact issues and enter summary judgment as a matter of law.

Depositions were also taken of expert witnesses; Goodwin on behalf of the plaintiff, and Burman on behalf of the defendant. Burman acknowledged that if Maniotis did not review the pros and cons of rejecting the offer with Sauer, then he committed malpractice. He further stated that if Maniotis told Sauer, as she testified, that chances of her getting a substantial verdict was 99% and that if she lost it would be fluke, it would "not only be malpractice, that [would be] one of the stupidest things I've ever heard a trial lawyer with any sense say."

Goodwin testified that if Maniotis advised his client that she had a 99% chance of winning the case, then that would constitute negligence. Goodwin believed that Sauer's attorneys failed to properly prepare the case by failing to have experts as to the standard of care in cleaning methods and by failing to have experts examine Sauer's shoe in order to analyze the substance on it. He also stated that her attorneys should have evaluated the case as a difficult liability case based on an eyewitness' inconsistent testimony. He stated that the attorneys failed to fully, comprehensively, and candidly explain to Sauer the hurdles...