Warwick, Paul & Warwick v. Dotter

• Decision Date: 28 September 1966
• Docket Number: No. 184,184
• Parties: WARWICK, PAUL & WARWICK, a partnership, and Charles H. Warwick, Jr., John A Paul and Charles H. Warwick, III, partners, associated and in business under the partnership name of Warwick, Paul & Warwick, Appellants, v. John C. DOTTER, Appellee.
• Court: Florida District Court of Appeals

Page 596

190 So.2d 596

WARWICK, PAUL & WARWICK, a partnership, and Charles H. Warwick, Jr., John A Paul and Charles H. Warwick, III, partners, associated and in business under the partnership name of Warwick, Paul & Warwick, Appellants, v. John C. DOTTER, Appellee.

No. 184.

District Court of Appeal of Florida, Fourth District.

Sept. 28, 1966.

Rehearing Denied Oct. 27, 1966.

C. Robert Burns, of Burns, Middleton, Rogers & Farrell, Palm Beach, for appellants.

Elton H. Schwarz, Stuart, for appellee.

RAWLS, JOHN S., Associate Judge.

The law firm Warwick, Paul & Warwick appeals from an adverse judgment in a malpractice suit.

In April, 1961, John C. Dotter's wife sued for divorce and sought custody of the parties' children, temporary and permanent alimony, child support, and division of the parties' property. Dotter engaged Mr. C. H. Warwick, Sr., of the law firm Warwick, Paul & Warwick to defend the action. Warwick filed an answer for Dotter but failed to appear and defend at the trial of the cause. In the final divorce decree Mrs. Dotter was awarded a divorce, custody of the children, periodic alimony, child support and title to the parties' home in fee simple as her special equity in the property of the parties. Thereafter, Dotter brought this action against the firm Warwick, Paul &amp Warwickalleging malpractice in that it negligently failed to perform those services for which it was retained. Both parties admitted that Warwick, Paul & Warwick had been employed, accepted employment as attorneys for John C. Dotter in the divorce action, and received notice of the trial, but no member thereof attended.

The principal grievances of the appellants go to the use of a hypothetical question to prove the possibility that a more financially favorable divorce decree could have been obtained had not the firm been negligent, and to the assumption in the hypothetical that the husband could have proven certain facts by a preponderance of the evidence. Appellants' other points are directed toward the propriety of allowing the wife's attorney in the divorce case to testify as to the substantive and procedural Florida law and as to what testimony was elicited in the divorce case since there was no transcript made of the trial.

Plaintiff Dotter, a watch repairman or jeweler, was engaged in a seasonal business which required that he spend his winters in Florida and his summers in New Jersey. During the summer and fall of 1961 he was in New Jersey, and he was not notified of the date of trial, nor did his attorney attend the trial; and as a result his wife secured a divorce and received custody of his four children which she promptly moved to California. He testified that his attorney, Mr. Warwick, Sr., had laughed at the grounds alleged in the complaint and had assured him that they could successfully defend against the divorce. Dotter believed that, had his case been presented with his sons and his sister testifying, the outcome would have been different because there was no cruelty as alleged; and if necessary he could have proved that he had marital relations with his wife after the complaint and answer were filed; that his wife had no special equity in the property of the parties because she only worked in his business less than 2 of the 20 years the...