Tarleton v. Arnstein & Lehr, 97-1237
| Decision Date | 19 August 1998 |
| Docket Number | No. 97-1237,97-1237 |
| Citation | 719 So.2d 325 |
| Parties | 23 Fla. L. Weekly D1929 Virginia TARLETON, Appellant/Cross-Appellee, v. ARNSTEIN & LEHR, a partnership, Appellee/Cross-Appellant. |
| Court | Florida District Court of Appeals |
Dyanne E. Feinberg and Lewis N. Brown of Gilbride, Heller & Brown, P.A., Miami, and Joseph E. Altschul of Altschul & Landy, P.A., Weston, for appellant/cross-appellee.
John Beranek of Ausley & McMullen, Tallahassee, and J. Michael Burman of Burman, Critton & Luttier, North Palm Beach, for appellee/cross-appellant.
Virginia Tarleton ("Former Wife") appeals and Arnstein & Lehr (the "Firm") cross-appeals from a final judgment in a legal malpractice action. We affirm the Firm's cross-appeal without further discussion. However, we reverse the final judgment because we find merit in the points raised by Former Wife on appeal.
This case concerns a legal malpractice action that arose out of the Firm's representation of Former Wife in a 1993 divorce action. During opening statements, Former Wife's counsel stated to the jury that they were going to hear a "trial within a trial." He explained that they would not only be trying the Firm's conduct in the malpractice action, but that it would also be necessary to try the underlying dissolution proceeding.
Former Wife and Former Husband were married in 1977 and they launched numerous companies together. The companies were very successful. The couple had an oral agreement that they would maintain their assets separately, but be equally responsible for household expenses.
In 1984, the couple started having disputes over business matters, and Former Wife left her position as president of one of the couple's companies. In exchange for her resignation, Former Wife testified that Former Husband told her that he would pay for all of the previously shared household expenses. To support her testimony, a document entitled "Agreement" was introduced in evidence.
While the couple remained married, the common household expenses increased to over $23,000 per month. In 1988, Former Husband began facing financial difficulties and was unable to pay the joint household expenses. Former Wife then began to draw on her savings in order to pay for such expenses. In order to keep track of the sums Former Wife was expending, Former Husband signed a series of promissory notes in which he acknowledged that he had to repay Former Wife for the advances that she was making for the household expenses. At the time the couple divorced, the promissory notes reflected that Former Husband owed Former Wife over $700,000 for the advances she had made.
In 1992, Former Wife filed a Petition for Dissolution of Marriage. She hired the Firm to represent her in the dissolution proceeding. The Firm recommended to Former Wife that she pursue two separate lawsuits, one seeking dissolution and the other seeking to recover on the promissory notes.
Former Wife entered into a settlement agreement with Former Husband in the dissolution action based upon the representations of the Firm that she would be able to bring a separate action to enforce the debt underlying the promissory notes. Former Wife testified that she asked the Firm about the "release" clause in the settlement agreement and was assured she could bring an action on the promissory notes.
After the divorce was final, the Firm was unable to represent Former Wife in any subsequent action against Former Husband. Therefore, Former Wife hired another attorney and discussed filing a separate suit against Former Husband for the money owed her under the promissory notes. However, her new attorney told her that she could not pursue any further claim on the promissory notes against Former Husband because of the release clause in the settlement agreement. Former Wife then brought a legal malpractice claim against the Firm.
Former Wife's expert, James Miller ("Expert"), testified that the Firm's representation of Former Wife fell below the proper standard of care and constituted malpractice. In particular, he found that the Firm's conduct departed from the proper standard of care in advising Former Wife that she could enter into the marital settlement agreement and still pursue a separate cause of action against Former Husband to enforce the promissory notes. Further, Expert opined that the promissory notes would have been admissible in the dissolution proceeding, and if they constituted a preponderance of the evidence, would have led the judge to conclude that the marital contracts existed and would, thus, be enforceable.
Former Wife's Accountant, Harvey Muskat ("Accountant"), reviewed the promissory notes, bank accounts, and other financial data concerning the parties assets. Based upon his review of this information, he concluded that Former Husband owed Former Wife a large sum of money. In performing the accounting, he discovered that Former Husband owed Former Wife more money than was reflected in the promissory notes. He determined that Former Husband owed Former Wife a total of $1,990,290.
Following the dissolution, the parties' joint real estate was sold for $6,049,700. This money was used to pay off joint debts totaling $3,837,141. Thus, $2,212,560 remained to be split between the parties. Pursuant to the settlement agreement, Former Wife received $1,256,640 and Former Husband received $955,920. If the distribution of assets had been evenly divided, Former Husband would have received $150,360 more. Thus, Accountant concluded that Former Husband owed Former Wife $1,990,290 less the $150,360 extra she received under the settlement agreement, for a total of $1,839,930.
At the close of the Firm's case, the Firm renewed its directed verdict motion on Former Wife's negligence claim. Specifically the Firm argued that there was no evidence establishing proximate cause because there was no evidence presented that a judge would have awarded Former Wife more than what she received from the settlement agreement. The trial court expressed its concern that there was no evidence as to what a reasonable judge would have awarded Former Wife if a dissolution proceeding had taken place. However, the trial court reserved ruling on this motion until the jury returned its verdict. The trial court also denied Former Wife's motion for directed verdict on the issue of comparative negligence.
The jury returned a verdict, finding that the Firm was negligent and that its negligence was responsible for 75 percent of Former Wife's damages. The jury also found that Former Wife was comparatively negligent and that her comparative negligence was responsible for 25 percent of her damages. The jury determined that Former Wife's damages totaled $960,000. Thereafter, the Firm filed a motion for judgment notwithstanding the verdict. In addition, Former Wife filed a motion for entry of judgment in accordance with her motion for directed verdict on the issue of comparative negligence. After a hearing on these motions, the trial court granted the Firm's motion, finding that "there was no evidence (or reasonable inference therefrom) presented as to the issue of proximate causation upon which a jury could lawfully have returned its verdict because no expert testimony was presented that, but for the negligence of the attorney involved, a more favorable result would have been achieved for the Plaintiff [Former Wife] in the underlying cause of action." The trial court denied Former Wife's motion. Subsequently, the trial court entered final judgment in favor of the Firm.
In her first point on appeal, Former Wife argues that the trial court erred in directing a verdict in favor of the Firm because expert testimony was not required to prove proximate cause in a legal malpractice action. The Firm counters that insufficient evidence was presented on the issue of proximate cause and that the trial court properly directed a verdict in its favor.
In Florida, to prevail on a legal malpractice claim, the plaintiff must prove the following three elements: (1) the attorney's employment; (2) the attorney's neglect of a reasonable duty; and (3) the attorney's negligence resulted in and was the proximate cause of loss to the client. See Anderson v. Steven R. Andrews, P.A., 692 So.2d 237, 240 (Fla. 1st DCA 1997); Bolves v. Hullinger, 629 So.2d 198, 200 (Fla. 5th DCA 1993); Weiner v. Moreno, 271 So.2d 217, 219 (Fla. 3d DCA 1973). "The third element regarding the loss to the client is not satisfied unless the plaintiff demonstrates that there is an amount of damages which the client would have recovered but for the attorney's negligence." Sure Snap Corp. v. Baena, 705 So.2d 46 (Fla. 3d DCA 1997); see Fernandes v. Barrs, 641 So.2d 1371, 1375 (Fla. 1st DCA 1994); Bolves, 629 So.2d at 200. This requirement has resulted in a legal malpractice action being referred to as a "trial within a trial." Silvestrone v. Edell, 701 So.2d 90, 92 (Fla. 5th DCA 1997)(Sharp, J., dissenting); see Michael Kovach, P.A. v. Pearce, 427 So.2d 1128, 1129 (Fla. 5th DCA 1983). To prevail on the malpractice claim, the client has to prove that she would have prevailed on the underlying action but for the attorney's negligence.
In the instant case, there is no dispute that the first two elements have been satisfied. Thus, this appeal focuses on whether Former Wife presented sufficient evidence to satisfy the third element. In essence, Former Wife is asserting that her Accountant's testimony, coupled with her Expert's testimony, provided sufficient evidence with which the jury could have concluded that but for the Firm's negligence, she would have received a greater amount than she received under the settlement agreement. The Firm's position is that Former Wife failed to satisfy the third element because her Expert failed to provide a specific opinion as to whether she would have received a larger...
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