Articles Posted in Legal Malpractice Issues

A Missouri appellate court has ruled that a legal malpractice claim survived the death of a client. In Roedder v. Callis, a client caused a serious motor vehicle accident, which left the other operator paralyzed. The victim sued the client for negligence and the client hired an attorney to defend him in the case. Following a trial, the court entered judgment against the client in the amount of almost $25 million.

The client then brought a legal malpractice suit against the attorney. Shortly after filing his complaint, the client died. His wife, acting as personal representative of his estate, successfully moved to substitute herself as plaintiff. The attorney then moved to dismiss the claim on the grounds that the claim abated with the client’s death. The trial court granted the motion and the wife appealed.

The appellate court reversed the dismissal and remanded the case. The court found that under Missouri law, causes of action arising from either personal injuries or damage to property, survive the injured party’s death and may be brought by a successor. The court determined that a legal malpractice claim could be construed as both a personal injury claim, because of the nature of the attorney-client relationship, and also a property damage claim, because of the failure to protect the client’s financial interest. The court thus found that the client’s claim survived his death and could be pursued by his wife.

Decision: Roedder v. Callis

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A New Jersey appellate court has affirmed a summary judgment in favor or an attorney in a legal malpractice case. In Jobar Realty, Co., Inc., v. Tombalakian, a client sued his former attorney for negligently settling a dispute with a tenant that caused environmental damage to a strip mall owned by the client. The client was in the process of selling the mall. In order to close the sale, the client had to deliver to the buyer certain environmental clearance documents for the property.

The client discovered that the property required contamination remediation. He then retained the attorney to pursue a claim against a former tenant who operated a dry cleaning business at the strip mall and contributed to the contamination. The attorney began negotiating with the tenant’s insurer. The client had authorized the attorney to settle for a specified amount, which the insurer ultimately accepted. However, when the attorney forwarded the settlement agreement to the client, he refused to sign.

The attorney advised the client that he was bound by the terms of the agreement and could not renege. However, the client still refused to sign. The attorney then withdrew his representation. The client hired another attorney who filed suit against the tenant. The tenant successfully moved to enforce the settlement agreement. The client then sued the first attorney for legal malpractice alleging that he negligently settled the dispute. The attorney successfully moved for summary judgment and the client appealed.

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A Louisiana appellate court has affirmed a summary judgment in favor of an attorney in a legal malpractice case. In Leonard v. Reeves, a client brought a legal malpractice claim against his former attorney as the result of his settling a dispute concerning his child support obligations. The support order had provided that the client make monthly child support payments, provide medical insurance for his two children, and pay 75% of the any uninsured medical expenses.

Several years later, the client’s ex-wife petitioned for an increase in the amount of the support payments and sought reimbursement for prior unpaid support and medical expense payments. However, when the wife failed to properly serve the client with notice of a hearing on her petition, and the client failed to appear, the court entered a default judgment against him.

The client learned of the judgment when the ex-wife sought to enforce it against him in Mississippi, where he was then residing. The client then hired the attorney, seeking to vacate the judgment in the Louisiana probate court.

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The Court of Appeals of Minnesota appellate court has affirmed a summary judgment in favor of an attorney in a legal malpractice case. In Vitamin v. Vermeulen, a client sued her former attorney for negligence related to her divorce proceedings. She alleged that she had failed to argue that real property held by her husband and her was a marital asset.

The former husband had purchased the property prior to their marriage, but it was where the couple had their marital home. Two years into the marriage, the husband transferred title to himself and to his wife, as tenants in common, allegedly for estate planning reasons. Eight years later, the couple transferred the property to themselves as joint tenants, so that the wife could obtain a loan for her business.

After a trial, the court awarded the property to the husband as a non-marital asset. The client appealed without success. She then filed a claim against the attorney, alleging that she had failed to put in evidence to demonstrate that the property was a marital asset. The attorney then moved for summary judgment, the Court allowed the motion, and the client appealed.

The appellate court affirmed the judgment. Under Minnesota law, the intent of the grantor is the most important factor in determining the treatment of a transfer of property within a marriage. The husband had testified at trial that he never intended for the wife to have an interest in the property. He claimed that he had made the first transfer for estate planning reasons, and that the second transfer was equivalent to co-signing for her loan, and that based on this intent, the property remained a non-marital asset. The appellate court ruled that the divorce attorney’s failure to argue otherwise did not constitute malpractice.

Decision: Vitamin v. Vermeulen

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A California appellate court has reversed a client’s judgment in legal malpractice action. In Williams v. Alden, a client sued his former attorney for negligence with respect to an action to recover a deposit in a real estate transaction. The client had entered into a contract to purchase of five residential units and paid $15,000 to an escrow agent as a down payment.

When the lender in the transaction discovered that two of units had been built without permits, it was unwilling to finance the purchase and the client forfeited his deposit. He then hired the attorney to attempt to recover the funds from the seller. The escrow agent, who was still holding the funds, intervened, which resulted in the attorney filing a direct count against him. The escrow agent successfully moved for judgment on the pleadings, which resulted in a $56,000 judgment against the client for his attorney’s fees. The client then sued his attorney, alleging his negligence in directly suing the escrow agent, which had resulted in the adverse judgment.

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The Eleventh Circuit Court of Appeals has affirmed summary judgment in favor of an attorney in a legal malpractice action. In Botes v. Weintraub.doc, a client sued his former attorney for negligently representing him during his criminal conspiracy and wire fraud case.

Prior to the criminal trial, the client passed a polygraph test. The attorney attempted, but failed to get the results admitted into evidence. The attorney elected not to videotape the examination, which might have resulted in the results being admitted.

The client also sought relief from his restrictive pre-trial release conditions. The attorney advised the client that the restrictions were standard and weren’t worth challenging. However, upon the client’s urging, the attorney successfully moved to have most of the bond conditions lifted, but the process took approximately one year. The attorney withdrew his representation prior to the trial and the client was eventually found guilty and sentenced to several months in jail.

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The Court of Appeals of Georgia has ruled that clients, the parents of a child who had died in a school bus accident, were entitled to present expert testimony as to damages sustained in a legal malpractice action. In Tidwell v. Hinton & Powell, parents sued their former attorney for negligence representing his estate in a wrongful death action.

The attorney had filed a lawsuit against the county board of education. However, after discovering that the school district was the proper defendant, the attorney voluntarily dismissed the action and filed a new complaint in the same court, rather than adding the school district as an additional party. By the time the new action was filed, the applicable statute of limitations had run, leading to dismissal of the new case.

The parents then filed a legal malpractice claim against their attorney. The parents had planned to offer expert testimony to support their damage claim, to the effect that the attorney’s negligence had proximately caused damages in excess of $500,000.00. The defendant attorney moved to exclude this expert testimony. The trial judge granted the motion, but then certified the issue for immediate appellate review.

The appeals court reversed, finding that the expert’s testimony should have been admitted. The court reasoned that the parents were entitled to offer evidence showing that some amount of damages was collectible, and in turn the defendant attorney could rebut with a showing that the damages were some other amount, leaving the jury to weigh the evidence. The Appeals Court remanded the case for further proceedings.

Decision: Tidwell v. Hinton & Powell

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The Supreme Court of New Jersey has reversed a summary judgment in favor of two attorneys in a legal malpractice action. In Gere v. Louis, a client sued two of her former attorneys for negligently representing her in her divorce proceedings. The client had been married to her former husband for over thirty years and the couple had substantial assets, including equal shares in both marina real estate and in a partnership to operate its underlying business.

The client’s first attorney represented her during the divorce proceedings, which concluded with a settlement agreement. The agreement provided the client with a six month period to decide if she wished to retain her half interest in the real estate and/or the underlying business or would rather be granted a release from any liabilities related to the enterprise. After the six months had expired, the husband requested advice in writing of her intentions.

The first attorney telephoned the client, and spoke to the client’s friend, whom the attorney knew the client relied on for advice. The friend advised the attorney “real estate, yes, marina, no.” The attorney took this to mean that the client wished to give up her interest in the marina business, but not the real estate. He subsequently wrote to the husband advising of his understanding of the client’s decision, but did not provide a copy to the client.

After learning of the attorney’s actions, the client maintained that she had not waived her interest in the marina business. The first attorney then withdrew his representation, the client hired a second attorney who filed a claim, but it was later alleged by the client that the second attorney failed to conduct sufficient discovery before a decisive hearing.

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An Ohio appellate court has affirmed a summary judgment in favor of an attorney in a legal malpractice case. In Blount v. Smith, a client filed an action pro se claiming negligent representation related to his divorce. The client alleged that the attorney had failed to ensure that the probate court would retain jurisdiction if he sought to modify his alimony payments in the future.

The attorney moved for summary judgment on the basis that the statute of limitations precluded the suit. The client cross-filed his own motion for summary judgment. The court found that the client’s pleading was merely an opposition to the attorney’s motion and granted summary judgment in favor of the attorney.

The client neglected to file a timely appeal but instead moved to set aside the judgment, arguing that the trial court had violated his right to due process by failing to allow him to amend his pleading. The trial court denied the motion and the client appealed.

The appellate court rejected the appeal and affirmed the judgment in favor of the attorney on the basis that the client’s motion to set aside the judgment was merely a substitute for an appeal of the summary judgment ruling, and was untimely under Ohio law.

Decision: Blount v. Smith

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A New Jersey appellate court has reversed a summary judgment in favor of an attorney in a legal malpractice action. In Gravers v. Lanfrit.doc, a client sued his former attorney for negligently representing him as the seller in a real estate transaction. The attorney negotiated the purchase and sale agreement, which allowed the buyer to assign his rights under the contract, but not without the consent of the seller. The buyer did assign his rights to a developer, who subsequently further assigned those rights to a third party, but without the knowledge or consent of the seller.

The seller did not learn of the second assignment until two years later, just days before a closing on the sale. The seller consented to the second assignment in consideration for additional compensation, permitting the sale to go forward.

The client then sued his attorney for malpractice, alleging that he knew of the second assignment shortly after it occurred, but failed to notify him. The lower court granted summary judgment for the attorney on the basis that there were no damages suffered because the client received the same compensation to which he was entitled, notwithstanding the assignment. The client appealed and argued that he had consented to the second assignment under duress due to the pending closing.

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