4-6 Abandonment

JurisdictionUnited States

4-6 Abandonment

In Lenahan v. Russell L. Forkey, P.A.,216 the Fourth District Court of Appeal, while overturning summary judgment in favor of an attorney, stated, 'The circumstances in which a client's subsequent actions constitute an abandonment of a legal malpractice claim, as a matter of law, are very narrow."217

In Lenahan, the plaintiff's voluntary dismissal of a lawsuit in Virginia was held not to preclude a malpractice action in Florida.218 However, the court stated that if proof of the viability of the Virginia lawsuit, independent of the actions of the attorney in Florida, were sufficiently established, then "the voluntary dismissal of the Virginia lawsuit may very well constitute an intervening superseding cause."219

Abandonment can occur when the client settles the underlying action while the malpractice action is pending. In Pennsylvania Insurance Guarantee Ass'n v. Sikes,220 an insurance company hired an attorney to defend its policyholder in a personal injury case, which the lawyer lost at trial. Rather than appealing the case, the insurance company settled with the plaintiff and then sued the attorney for malpractice. Finding that the appeal would most likely have succeeded, the trial court granted summary judgment in favor of the lawyer. On appeal, this decision was affirmed:

We hold, on the facts of this case, that the settlement of the underlying personal injury case, while the appeal was pending, constituted an abandonment of any claim that PIGA's loss resulted from legal malpractice rather than judicial error.221

Although not cited in Sikes, the Third District Court of Appeal had dealt with a similar issue two years earlier in Oteiza v. Braxton.222 Oteiza involved a summary judgment in favor of an attorney who had been sued by his former doctor client for failing to perfect an appeal of a final order by the Board of Medical Examiners. Liability for not timely filing an appeal was explained as follows:

In order to recover damages for legal malpractice, a party who has been denied his right to appeal due to an attorney's failure to timely file a petition for review to the appropriate court must show that but for the attorney's negligence, the appeal most probably would have been successful.223

After examining what would have been the appellate issue, the Oteiza court reversed the summary judgment, concluding that "but for the attorney's negligence, the appeal most probably would have been successful."224

In Segall v. Segall,225 the Third District Court of Appeal helped clarify when a client must file an appeal to perfect a later malpractice case:

Our cases should not be read to require every party who suffers a loss and attributes that loss to legal malpractice to obtain a final appellate determination of the underlying case before asserting a claim for legal malpractice. The test for determining when a cause of action for attorney malpractice arises remains when "the existence of redressable harm has been established." In some cases, redressable harm caused by errors in the course of litigation can only be determined upon completion of the appellate process. In other cases, the failure to obtain appellate review should not bar an action for malpractice. We are unable to establish a bright-line rule that complete appellate review of the underlying litigation is a condition precedent to every legal malpractice action. To do so would, in many cases, violate the tenet that the law will not require the performance of useless acts.226

Segall was somewhat unusual in that the court dismissed the appeal of the underlying jury verdict because of the plaintiff's failure to comply with discovery orders. The deemed waiver of the malpractice case was predicated on the conduct that led to the appeal being dismissed, which "foreclosed any determination that judicial error rather than attorney malpractice caused their loss in the underlying litigation."227

The abandonment defense was narrowly construed in Parker v. Graham & James.228 The malpractice plaintiffs had retained Graham & James to prosecute a federal suit for crop loss. The verdict form in the federal suit required the jury to itemize the damages under theories of contract, negligence, and strict liability. The jury awarded $50,000 on the contract and...

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