1-2 Complaint

• Jurisdiction: United States

1-2 Complaint

A well-drafted complaint is a necessary foundation of any legal malpractice case.⁸ Bare assertions that the attorney was negligent or otherwise liable for the client's misfortunes are insufficient and will be rejected.⁹

As with other causes of action, a court will examine the "four corners of the complaint" to determine if the allegations are sufficient to withstand a motion to dismiss for failure to state a cause of action.¹⁰ However, a deficient complaint should not be dismissed if it is capable of being cured.¹¹

A dismissal with prejudice was affirmed in Bankers Trust Realty, Inc. v. Kluger.¹² This harsh sanction resulted from the failure to "state any of the specifics of the alleged malpractice."¹³ The complaint merely contained the "insufficient legal conclusion that the attorneys 'negligently, carelessly, unskilfully and tardily conducted the . . . action and delayed obtaining a judgment therein.'"¹⁴

Because the appellant in Conley v. Shutts & Bowen, P.A.¹⁵ did not request the opportunity to amend, the court affirmed a motion to dismiss with prejudice.¹⁶ However, Breakers of Fort Lauderdale, Ltd. v. Cassel¹⁷ overturned a trial court ruling dismissing a complaint for legal malpractice with prejudice because the complaint, "while deficient in that it failed to establish conclusively when appellant actually knew that its attorney's conduct constituted malpractice, was not beyond cure."¹⁸

A third-party complaint seeking indemnification against a lawyer was filed in Oliv-ieri v. Florida Ass'n of Public Employees Pension Trustees, Inc.,¹⁹ which began as an interpleader action. One party claimed his lawyer's negligence exposed him to losing certain monies. His third-party complaint seeking indemnity was dismissed by the trial court. In reversing, the appellate court held that the client had a right to seek indemnity if his exposure was due to his lawyer's negligence.²⁰

In Gortz v. Lytal, Reiter, Clark, Sharpe, Roca, Fountain & Williams,²¹ a law firm filed a third-party complaint against another law firm seeking subrogation or indemnity. The malpractice claim sought to recover attorneys' fees incurred in a divorce and a separate claim for intentional torts. The intentional torts claim was won by a party who submitted multiple offers of judgment. However, the offers of judgment did not result in an attorneys' fee award because the motion seeking to enforce the offers of judgment was untimely. The law firm bringing the malpractice claim was the same one that did not timely seek to enforce the offers of judgment. The defendant law firm in the malpractice action brought a third-party claim against the law firm prosecuting the malpractice claim seeking contribution for the attorneys' fees that were untimely sought.

The trial court's dismissal of the third-party claim was overturned.²² The appellate court approved of claims for indemnity against parties who may be liable to a defendant at the conclusion of the case, but allowed the trial court to sever or dismiss the third-party claim if it would overly complicate the litigation.²³

In Anderson v. Rossman & Baumberger, P.A.,²⁴ a lawyer being sued by her former client for intentional infliction of emotional distress filed a third-party complaint for indemnity against the client's new law firm. The trial court dismissed the third-party complaint and the appellate court affirmed, reasoning that "if there is liability for a tort Anderson would not be a passive tortfeasor."²⁵

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Notes:

^[8] For a sample complaint, see § 1-11:1 of this book.

^[9] In re Niroomand, 493 F. App'x 11, 13 (11th Cir. 2012) (evidence of legal malpractice "woefully lacking"); Weaver v. Mateer and Harbert, P.A., 523 F. App'x 565, 569 (11th Cir. 2013) ("Weaver presented no evidence that those legal services falling within the scope of the agreement were incompetently rendered."); Does 1-98 v. Boies, Schiller & Flexner, LLP, 709 F. App'x 684 (11th Cir. 2017) (lower court properly dismissed legal malpractice lawsuit where law firm's decision to terminate representation did not cause plaintiffs any harm); Esposito v. Hollander, 2011 WL 397945, at *2 (M.D. Fla. 2011) ("In the instant case, plain-tiff does not clearly identify the basic elements of the case. There are no allegations that plaintiff hired Miller and Hollander, that Miller and Hollander had a duty as plaintiff's attorney, or most importantly, what actions constituted negligence on the part of the firm. Simply receiving an unfavorable result does not establish negligence or l egal malpractice."); Mirabilis Ventures, Inc. v. Palaxar...