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Florida Third DCA reverses summary judgment in legal malpractice case, finding disputed issues of material fact existed as to whether the plaintiff could have prevailed in false arrest case

On May 10, 2017, in Rivero v. Howard , No. 3D16-1579, the Florida Third DCA reversed a final summary judgment in favor of the defendant in a legal malpractice case, finding that there were disputed issues of material fact regarding whether the plaintiff could have prevailed on his claim of false arrest for which he had previously been represented by the defendant law firm. The trial court had granted the summary judgment based on a finding that here had been probable cause to arrest the plaintiff.

The Florida Third DCA began its review by noting that legal malpractice actions of this nature are sometimes referred to as “a case within a case” because, in order to establish causation for purposes of the malpractice action, the plaintiff must prove that, but for the attorney’s negligence, the plaintiff would have prevailed on the underlying claim (here, false arrest or malicious prosecution). Citing Gunn v. Minton, 133 S. Ct. 1059, 1065 (2013); Silvestrone v. Edell, 701 So. 2d 90, 92 (Fla. 5th DCA 1997), rev’d on other grounds, 721 So. 2d 1173 (Fla. 1998). Consequently, even though there was apparently no dispute that the law firm had failed to file the lawsuit within the statute of limitations period, the plaintiff’s case could only move forward if there was a basis to conclude that he could have prevailed in the underlying action.

With respect to the underlying issue, whether the plaintiff would have prevailed in the false arrest case, the Third DCA cited Willingham v. City of Orlando, 929 So. 2d 43, 48 (Fla. 5th DCA 2006) for the principle that false arrest is “the unlawful restraint of a person against that person’s will.” Proof of probable cause to arrest serves as an affirmative defense in a false arrest case, which in turn requires proof that the arresting officer conducted a “reasonable investigation” to determine whether probable cause exists. Moreover, “[w]here it would appear to a ‘cautious man’ that further investigation is justified before instituting a proceeding, liability may attach for failure to do so, especially where the information is readily obtainable, or where the accused points out the sources of the information.” Quoting Harris v. Lewis State Bank, 482 So. 2d 1378, 1382 (Fla. 1st DCA 1986). See also City of St. Petersburg v. Austrino, 898 So. 2d 955 (Fla. 2d DCA 2005). The Third DCA concluded that because there were issues of material fact in dispute about whether a reasonable investigation had been conduct, summary judgment was improper.

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