Florida law recognizes that a legal malpractice action may lie where the attorney commits negligence in advising a client to enter into a settlement agreement or errs in the drafting of a settlement agreement. See, e.g., MarElia v. Yanchuck, Berman Wadley & Zervos, P.A., 966 So. 2d 30 (Fla. 2d DCA 2007) (reversing final summary judgment in favor of attorneys holding genuine issues of fact remained related to attorneys' representation of client where client alleged attorneys failed to properly prepare settlement documents to reflect the settlement distribution they described to client); see also Miller v. Finizio & Finizio, P.A., 226 So. 3d 979, 983 (Fla. 4th DCA 2017) ("An attorney is not ‘insultated from liability for failing to exercise ordinary skill and care in resolving settlement issues.’ " (quoting Sauer v. Flanagan & Maniotis, P.A., 748 So. 2d 1079, 1082 (Fla. 4th DCA 2000) )); Hunzinger Const. Corp. v. Quarles & Brady Gen. P'ship, 735 So. 2d 589 (Fla. 4th DCA 1999) (reversing directed verdict on client's legal malpractice claim alleging a drafting error in the settlement agreement); Tarleton, 719 So. 2d at 331 (holding client cannot be found comparatively negligent for relying on attorney's advice to sign a marital settlement agreement that contained disadvantageous terms).
As for plaintiffs' claims for malpractice and violations of § 100.18, Florida also recognizes common-law malpractice claims and statutory claims for unfair trade practices. See Miller v. Finizio & Finizio, P.A., 226 So.3d 979, 982 (Fla. App. 4 Dist. 2017) (setting forth elements for legal malpractice); DFG Group, LLC. v. Stern, 220 So.3d 1236, 1238 (Fla. App. 4 Dist. 2017) (setting forth elements of unfair-trade-practices claim under Fla. Stat. § 501.204). The question under Bush is not simply whether Wisconsin law embodies an important public policy, but whether applying another state's law would be “at the expense of” such a policy.
First, count five pleads definitive damages—the loss of property that was sold at auction—which appellant allegedly suffered as a proximate result of appellees' work and, thus, was sufficient to survive a motion to dismiss. See Miller v. Finizio & Finizio, P.A., 226 So.3d 979, 982-83 (Fla. 4th DCA 2017); KJB Vill. Prop., 77 So. 3d at 730. Second, count five pleads specific facts detailing how appellees' actions allegedly were the result of appellant's loss.
Additionally, “mere acceptance of a settlement in a prior case does not automatically foreclose the client from bringing a malpractice suit against the attorney who handled the case.” Miller v. Finizio & Finizio, P.A., 226 So.3d 979, 982-83 (Fla. 4th DCA 2017) (citation omitted). Plaintiff need not have appealed the judgment in the underlying case for the legal malpractice cause of action to plausibly exist.
In 2015, the decedent filed his original personal injury complaint, the allegations of which we are required to accept as true. SeeMiller v. Finizio & Finizio, P.A. , 226 So. 3d 979, 982 (Fla. 4th DCA 2017) ("Where a defendant moves for judgment on the pleadings, a court must take as true all of the material allegations in the plaintiff's complaint and must disregard all of the denials in the defendant's answer."). According to the complaint, from the 1950s through the 1990s, the decedent was exposed to asbestos, which is a toxic substance that may cause mesothelioma.
A party may move for a judgment on the pleadings after all pleadings are closed. Fla. R. Civ. P. 1.140(c). This Court reviews a judgment on the pleadings de novo. Miller v. Finizio & Finizio, P.A. , 226 So.3d 979, 982 (Fla. 4th DCA 2017). Such a motion tests the legal sufficiency of the cause of action:
The Restatement of Judgments states this not only as a matter of fairness but as a matter of constitutional right. (Generally in support of the view expressed in the Restatement of Judgments, see Ex parte Indiana Transp. Co., 244 U.S. 456; Fidelitys&sCas. Co. v. Bank of Plymouth, 213 Iowa 1058; Hay v. Tuttle, 67 Minn. 56; Maya Corp. v. Smith, 32 F.2d 350; cf. Finizio v. Finizio, 124 N.Y. S.2d 121, and Peri v. Groves, 183 Misc. 579, 584.) In Schuster v. Schuster (9 N. J. Super. 11, supra) the court expressly approved and followed comment g to section 5 of the Restatement of Judgments. The facts in the Schuster case were similar to those in the present case, except that the amendment consisted of the addition of a cause of action for separate maintenance to a complaint for divorce.
In order to maintain this action for separation, the plaintiff must comply with the requirements of section 1165-a of the Civil Practice Act, which so far as applicable here states: "An action * * * for separation may be maintained in either of the following cases: * * * 3. Where the parties were married without the state, and either the plaintiff or the defendant is a resident of the state when the action is commenced, and has been a resident thereof for at least one year continuously at any time prior to the commencement of the action." "Residence" as used in this section does not mean mere physical presence but is synonymous with "domicile". ( Pignatelli v. Pignatelli, 169 Misc. 534; Finizio v. Finizio, 124 N.Y.S.2d 121 [Sup. Ct., Kings County].) And "residence" means the place of permanent abode.