Fla. App: Underlying Foreclosure
Facts: Plaintiffs filed a complaint against their lawyer alleging one count of legal malpractice based on his failure to carry out their "specific instruction[s]" with respect to the litigation. They also made a claim for malpractice based on the attorney’s alleged failure to follow up in discovery and to properly prepare for trial. They asserted yet another claim based on the attorney charging of fees and expenses above and beyond an initial $5000 retainer and $20,000 mortgage as agreed in an employment agreement. They alleged a fourth count for breach of contract based on the lawyer’s agreement that he would handle the case through trial. Finally, they alleged libel and slander, based on the statements the lawyer made in his affidavit and in court on his motion to withdraw. The plaintiffs prayed for relief in the form of compensatory and punitive damages.
The lawyer moved for summary judgment on all counts. Initially, the court granted a partial summary judgment in favor of the lawyer on the defamation count and struck the clients’ claim for punitive damages. The court postponed the remaining issues due to a shortage of time. The explicit and lengthy order setting the continued hearing advised the clients’ that a calendar call would be held and that the case would be on one hour call. The clients did not show up for the hearing, at which time the court considered the balance of the issues and entered the summary judgment. The court Subsequently entered a final judgment against them.
Issue: #1 -Did the lawyer commit defamation?
#2 -Did the lower court err by striking the claim for punitive damages?
#3 -Did the lawyer breach the contract with his client?
Ruling: #1-No, the lawyer made the statements during the course of judicial proceedings to inform the court of the reasons for the motion. His statements were absolutely privileged.
#2-No, the court also did not err by striking the clients’ claim for punitive damages, as a claim for punitive damages may not be asserted without the trial court having first determined that a factual basis for such damages exists as required by section 768.72, Florida Statutes (1997).
#3-No, the undisputed evidence is that the lawyer sought to withdraw from the case because of irreconcilable differences with the clients and that the clients stated at the hearing on the motion to withdraw that they were firing their lawyer. No breach occurred as the parties terminated their agreement by mutual consent.
Lesson: If the client agrees to his lawyer’s withdrawal from the case, there might be no cause of action for malpractice.