Boston Legal Malpractice Lawyer Blog

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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A Florida appellate court has reversed a summary judgment in favor of an attorney in a legal malpractice action. In Hodge v. Cichon the beneficiary of a will brought an action against an attorney who represented a court appointed guardian of an individual who later died. Five years before his death, the individual had deeded real property to the beneficiary, and also had signed documents, creating a family trust for tax purposes.

The individual's son initiated proceedings in probate court seeking a declaration that his father was not competent to create the trust. Prior to a hearing on the issue, the individual executed a will giving his estate to the beneficiary. The probate court ruled that the decedent was partially incompetent, appointed a guardian for him, and ordered that the prior estate plan be reinstated. The individual died two years later, but the attorney representing the court appointed guardian failed to implement the family trust in violation of the probate court's order.

The beneficiary then sued the attorney for malpractice alleging that the attorney's misconduct significantly reduced his share of the estate. The attorney successfully moved for summary judgment on the basis that there was no attorney-client relationship, that the family trust was defective, and would not have been allowed by the IRS. The client appealed.

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A Wisconsin appellate court has affirmed a summary judgment in favor of an attorney in a legal malpractice case. In Lawton & Cates, S.C. v. Alswager, a client sued his former attorney for negligently representing him in criminal proceedings. The client was charged with operating a vehicle while intoxicated and hired the attorney two months prior to the trial.

The client claimed that he was involuntarily intoxicated because he mistakenly took his wife's sleeping aid prior to consuming alcohol. The attorney agreed to have the client's blood sample analyzed and retain an expert witness for the trial. However, the week of the trial the test results had not come back and the expert informed the attorney that he was unavailable to testify. The attorney unsuccessfully moved for a continuance, but filed an affidavit of the expert explaining the effects of ingesting the sleeping aid. Nevertheless, the client was convicted.

The attorney did not receive the blood test results until after the trial, but they ultimately revealed that the client had ingested one sleeping pill. The client then filed a legal malpractice claim against the attorney. The attorney successfully moved for summary judgment and the client appealed.

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A New York appellate court has reversed the dismissal of a legal malpractice case. In Henneberry v. Borstein, a woman sued her attorney for negligently representing her in arbitration proceedings against a former employer. The client had lost her case in the arbitration. She then brought a legal malpractice against the attorney who represented her in the proceeding.

The client filed an action pro se. She served a copy of the summons on the attorney, but did not serve the complaint at the same time, but did serve it shortly thereafter. The attorney moved to dismiss on the basis of improper service. The client then moved for an extension of time to effect service.

The court dismissed the action without prejudice and granted the client's motion, conditioned upon her paying another filing fee and properly serving a summons and complaint within 30 days. The client then filed a new complaint, but the court dismissed the new filing as untimely.

The client appealed both dismissals. The appellate court reversed the first order on the basis that it was inconsistent to dismiss the complaint, while at the same time allowing the client an extension of time to effect service. The court further ruled that it was in the interest of justice to allow the extension because the client made a good faith attempt to effect service and the attorney had knowledge of the complaint soon after its filing. The court then reversed the dismissal of the new complaint, holding that that it was in reality an amendment of the original complaint. The case was remanded for further proceedings.

Decision: Henneberry v. Borstein

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A New Jersey appellate court has affirmed a summary judgment in favor of an attorney in a legal malpractice case. In Kirby v. Chase Home Finance, a woman brought a malpractice action against an attorney who represented a bank for the refinance of a woman's home.

The settlement agent for the bank in the refinance had retained the attorney, who did not attend the closing , but did notarize the settlement statement, reflecting the disbursement of funds. Later, the woman learned that the terms of her refinance were different that what she had been promised. She then filed an action against the attorney, alleging that the attorney's conduct was responsible for the differing terms of the refinance.

The attorney moved for summary judgment, which the court allowed and the client appealed. The appellate court affirmed the lower court decision, finding that the attorney had no duty to the woman because there was no attorney-client relationship. The court reasoned that the woman did not have a retainer agreement with the attorney and the fact that the attorney notarized the settlement statement was only a verification of the the accuracy of the disbursements at the closing.

Decision: Kirby v. Chase Home Finance

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A New Jersey appellate court has affirmed a summary judgment in favor of an attorney in a legal malpractice action. In Goodwin v. O'Donnell.doc, a client sued his former attorney for negligently representing him in his divorce proceedings.

The attorney had recommended that the client pursue arbitration because it would be cheaper and more expeditious than litigation. The client, his former wife, and her attorney all entered into an agreement to arbitrate the matter. Before the arbitration took place, the client fired the attorney.

The arbitration eventually concluded 15 months later and cost the client over $200,000.00. The client then sued the attorney for malpractice. The attorney successfully moved for summary judgment and the client appealed.

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The Georgia Court of Appeals has affirmed a lower court ruling denying summary judgment to an attorney in a legal malpractice case. In Duncan v. Klein, a client sued his former attorney for improperly advising him that his employment discrimination claim had no merit. Relying on the attorney's advice, the client did not file suit against his employer.

The client subsequently attended law school, and there formed the belief that he did indeed have a valid claim against his former employer. He subsequently filed a suit against his former employer, alleging discrimination and seeking back pay. However, a court later ruled that portions of his wage claim were time barred by the applicable statute of limitations.

The client and the employer eventually settled, and thereafter, the client then sued his former attorney on the basis that his advice reduced the wages, which he was able to recover. The attorney moved for summary judgment, which the court denied. He appealed.

The appellate court affirmed the lower court ruling, reasoning that there was sufficient evidence from which a jury could conclude that the attorney's conduct caused the delay in filing. The court relied on the client's statements that he would have filed an action, but for the attorney's advice, and the fact that he did eventually bring an action. The case was remanded for further proceedings.

Decision: Duncan v. Klein

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A New Jersey appellate court has reversed an order, dismissing a legal malpractice action. In Swain v. Alterman, clients sued their former attorney for negligently representing them in a personal injury action.
The attorney never filed a complaint, thereby allowing the statute of limitations to expire.

The clients then sued the attorney for legal malpractice. The attorney responded, claiming that he had forwarded a letter to the clients terminating his representation before the statute of limitations had expired. The clients of course claimed that they never received the letter.

In New Jersey, a plaintiff in a legal malpractice action normally must submit an affidavit of a legal expert alleging that the attorney's conduct fell below the standard of care. An affidavit is not required, however, if the breach can be proved without expert testimony. The clients had not filed an affidavit, believing that the failure to timely file the action fell within this exception. The trial court allowed the attorney's motion to dismiss and the clients appealed.

The attorney took the position that the exception did not apply because there was no attorney-client relationship following his termination letter, and therefore expert testimony was required. The appellate court disagreed, finding that the failure to file within the statute of limitations could be decided without expert testimony. The court also reasoned that the complaint sufficiently alleged the existence of an attorney-client relationship, and that any discrepancy was for the fact-finder to determine. The case was remanded for further proceedings.

Decision: Swain v. Alterman

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A New York appellate court has overruled a trial court that had granted a motion to dismiss a legal malpractice claim. In Phoenix Erectors, LLC v. Fogarty, a construction contractor sued its former attorney for negligently failing to protect its claim against a surety company.

A general contractor had filed a breach of contract action in New York against the client, who was a subcontractor on a construction project. The general contractor had obtained a payment bond from the surety. The subcontractor then hired the attorney to file a separate action against the general contractor and the surety in New Jersey seeking payments due under the contract.

The attorney elected to consolidate the two claims into a single action in the state of New York. The attorney prepared a stipulation, which dismissed the New Jersey case "with prejudice" and made the surety a third party defendant only in the New York action. The case went to trial before a jury in New York, resulting in a verdict and judgment for the client against the general contractor.

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