Suritz v. Kelner, 62-642
| Citation | 155 So.2d 831 |
| Decision Date | 16 July 1963 |
| Docket Number | No. 62-642,62-642 |
| Parties | George SURITZ, Appellant, v. Milton KELNER, Appellee. |
| Court | Florida District Court of Appeals |
Estelle G. Furlong and Hylan H. Kout, Miami Beach, for appellant.
John Lewis and Fred Patrox, Miami, for appellee.
Before CARROLL, HORTON and PEARSON, TILLMAN, JJ.
The appellant, George Suritz, was the plaintiff in the trial court. He appeals from a final judgment for defendant entered pursuant to a directed verdict granted at the close of plaintiff's case.
In his complaint Suritz alleged that he had retained the defendant, Milton Kelner, as his attorney to represent him in an action for damages for personal injuries caused by the negligence of Air Control Products, Inc. The complaint further alleged that after employment, the attorney delayed instituting action for a period longer than one year, and thereafter the action was subject to the provisions of § 440.39(4)(a), Fla.Stat., F.S.A. which provides that if the injured employee shall fail to bring his action against a third party tort-feasor within one year then the action may be brought by the employer's Workmen's Compensation carrier. Further negligence of the defendant was alleged in that he advised Suritz not to answer certain interrogatories propounded to him, resulting in the dismissal with prejudice of the action against the tort-feasor brought by the carrier.
In the subsequent action by Suritz against his attorney, a summary judgment was entered for the defendant. Upon appeal, this Court reversed the summary judgment with an opinion reported at 134 So.2d 259. The holding was that upon the record as it existed at that time, there was a genuine issue of material fact as to the alleged negligence of the attorney.
The cause came on for trial, and at the conclusion of plaintiff's case the Court directed a verdict for the defendant-appellee, Kelner. The trial judge has given us the benefit of his conclusions in the order, which is in part as follows:
'In the instant case, the issues were framed by a complaint, paragraph 2 of which alleges a cause of action in negligence against Air Control, Inc., and paragraph 9 which alleges the loss by the plaintiff of his cause of action because of the malpractice of the defendant attorney. Both paragraphs were denied by the answer and the plaintiff had the burden of presenting a prima facie case.
'At the conclusion of all of the plaintiff's affirmative evidence, it appears to the Court that the plaintiff has failed to prove a good cause of action against Air Control, Inc. for the following reasons:
'1. The record is void of evidence or reasonable inference showing how long the steel cover had been moved from its protective position covering the ditch in question.
'2. When the plaintiff walked into an unfamiliar area which he knew was very rough at a time when it was so dark that he could not see his hand in front of him his act constituted contributory negligence as a matter of law and would have barred his recovery as against Air Control, Inc. as well as his recovery in the instant suit.
'The plaintiff has failed to show a prima facie case of malpractice against the defendant attorney in the following respects:
'1. The instant record is void of any basis upon which a jury could determine the standard of care involving not only the Rules of Procedure in our Courts insofar as a third party negligence action is concerned, but also the complicated aspects of the Workmen's Compensation Act in this State.
'2. The record is void of any competent evidence showing that the defendant directed the plaintiff not to answer interrogatories as alleged in the complaint.
'3. No evidence was presented showing the standard of care of attorneys in the community or that the defendant violated such standard of care.
'4. No evidence was presented showing that the defendant failed to exercise reasonable care and skill.
We think that the following facts appearing in the record are necessary to a determination of this appeal. The plaintiff-appellant offered evidence of his employment of attorney, Kelner. The employment was not for a specified time, but was for the prosecution of the action against Air Control Products. After the insurance company brought its complaint against Air Control Products, Inc., interrogatories were propounded to plaintiff, Suritz, by the defendant in that suit. The attorney who represented Air Control testified that prior to this time, he had a conversation with attorney, Kelner, in which Kelner suggested that interrogatories be propounded to Suritz and that Suritz would refuse to answer the interrogatories so that the suit would be dismissed. When interrogatories were propounded, the plaintiff, Suritz, did fail to answer. Mr. Suritz' testimony was that when he was notified by the attorney for the carrier that he must answer interrogatories, he contacted Mr. Kelner and was instructed to do nothing in regard to them. Suritz further testified that he did as instructed by Mr. Kelner and heard nothing further about the interrogatories. It is clear that the interrogatories were later sent to Mr. Kelner. The attorney who represented the insurance carrier testified that he then called Mr. Kelner and informed him of an order by the trial judge directing Mr. Suritz to answer the interrogatories on penalty of dismissal of the action. Thereupon, Mr. Kelner replied that he was not going to allow Mr. Suritz to answer the interrogatories.
We think that a jury could have concluded that Mr. Kelner wanted the suit dismissed, and used the interrogatories as a means of procuring that result. An attorney practicing as an officer of the court is charged with the knowledge that under...
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Wagenmann v. Adams, s. 86-1475
...especially those in which an attorney fails to act once he has undertaken to represent a client. E.g., Suritz v. Kelner, 155 So.2d 831, 834 (Fla.Dist.Ct.App.1963) (per curiam) (failure to advise client of need to answer interrogatories), cert. denied, 165 So.2d 178 (Fla.1964); Sorenson v. F......
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...1973)). 6. Expert testimony has been held unnecessary in cases involving other failures to act. See Suritz v. Kelner, 155 So.2d 831, 834 (Fla.Dist. Ct.App. 1963) (per curiam), cert. denied, 165 So.2d 178 (Fla. 1964) (failure to instruct client to answer interrogatories); Collins v. Greenste......
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