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Florida Fourth DCA rules that trial court erred in entering summary judgment for law firm defendant in professional negligence lawsuit involving mortgages with erroneous property descriptions

On July 5, 2018, in JBJ Investment of South Florida v. Southern Title Group, et al., No. 4D16-1925, the Florida Fourth DCA ruled that a trial erred in entering a summary judgment for a law firm defendant in a professional negligence lawsuit. The plaintiff, a mortgage lender, alleged that the law defendant was legally responsible for the inclusion of erroneous property descriptions in the mortgage at issue. The trial court concluded that the law firm defendant’s role in the transaction did not include preparing the legal descriptions, which were actually provided by the title agent, and granted summary judgment on the basis. The Fourth DCA concluded that even though the title agent testified that she never asked the law firm to prepare or to review the title descriptions, a reasonable jury could conclude that when the law firm agreed to prepare the mortgage, they agreed by implication to ensure that the mortgage encumbered the correct real estate.

The Fourth DCA’s opinion notes that a cause of action for legal malpractice has three elements: (1) the attorney’s employment by the client; (2) the attorney’s neglect of a reasonable duty; and (3) the attorney’s negligence was the proximate cause of loss to the client. R.S.B. Ventures, Inc. v. Berlowitz, 211 So. 3d 259, 263 (Fla. 4th DCA 2017). The Fourth DCA also noted that the test for determining the existence of an attorney-client relationship ‘is a subjective one and hinges upon the client’s belief that he is consulting a lawyer in that capacity and his manifested intention is to seek professional legal advice.” Quoting Bartholomew v. Bartholomew, 611 So. 2d 85, 86 (Fla. 2d DCA 1992). However, this subjective belief must be reasonable. The Fourth DCA concluded in this case that a reasonable jury could conclude that a lawyer-client relationship existed between the mortgage lender and the law firm even though the law firm had allegedly been retained by the title agent on the mortgage lender’s behalf.

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