Opinion
Case No. 6:09-cv-175-Orl-31 DAB.
February 1, 2011
ORDER
This matter comes before the Court on the Motion for Summary Judgment (Doc. 80) filed by the Defendants. For the reasons expressed in this Court's recent order denying a similar motion for summary judgment in Mirabilis Ventures, Inc. v. Rachlin, Cohen Holtz, LLP, Case No. 6:09-cv-271 (the " Rachlin case"), the Court finds that summary judgment cannot be granted on this record. See Doc. 105 in the Rachlin case.
The Defendants here do raise one argument not raised in the Rachlin case which requires discussion. Based on the case of Steele v. Kehoe, 747 So. 2d 931 (Fla. 1999), the Defendants argue that a party convicted of a crime must be exonerated before it may sue its attorney for legal malpractice. (Doc. 80 at 8). Steele involved a malpractice claim by a convicted criminal against his criminal defense attorney for alleged malpractice during the criminal proceedings. The Defendants have not shown that Florida courts have ever applied the Steele rule where the malpractice claim was made against a civil attorney. In addition, the Steele court listed the following policy considerations as supporting its imposition of the exoneration requirement:
Specifically, Steele asserted that his defense attorney missed the deadline for filing a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. Id. at 932.
(1) without obtaining relief from the conviction or sentence, the criminal defendant's own actions must be presumed to be the proximate cause of the injury; (2) monetary remedies are inadequate to redress the harm to incarcerated criminal defendants; (3) appellate, postconviction, and habeas corpus remedies are available to address ineffective assistance of counsel; (4) requiring appellate or postconviction relief prerequisite to a malpractice claim will preserve judicial economy by avoiding the relitigation of supposedly settled matters; and (5) relief from the conviction or sentence provides a bright line for determining when the statute of limitations runs on malpractice action.Id. at 933. The second, third, and fifth considerations are clearly not applicable here. Mirabilis cannot be incarcerated, the company cannot proceed via appellate or habeas corpus proceedings against the Defendants, and any malpractice claim against the Defendants obviously accrued well before Mirabilis's conviction. In addition, where the legal advice at issue occurred before the Plaintiff's conduct and (allegedly) resulted in the conviction of a corporation, it is not so clear that "[the corporation's] own actions must be presumed to be the proximate cause of the injury." Finally, the issue of the Defendants' legal advice to the Plaintiff corporation, and whether that advice did (or legally could) result in a conviction of the Plaintiff, has not previously been litigated. Barring this suit would not avoid relitigation of supposedly settled matters.
In consideration of the foregoing, it is hereby
ORDERED that the Motion for Summary Judgment (Doc. 80) is DENIED. DONE and ORDERED in Chambers, Orlando, Florida on February 1, 2011.