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Filing # 92852643 E-Filed 07/19/2019 02:39:03 PM
1932201/4
IN THE CIRCUIT COURT OF THE 19TH JUDICIAL
CIRCUIT IN AND FOR INDIAN RIVER COUNTY
CASE NO. 312019CA000232
LEAH M. HUBBARD,
Plaintiff,
v.
E. CLAYTON YATES, P.A.,
Defendant.
/
DEFENDANT’S MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF’S MOTION
TO STRIKE AFFIRMATIVE DEFENSES
Defendant, E. CLAYTON YATES P.A,, pursuant to the Florida Rules of Civil
Procedure, requests that this Honorable Court deny Plaintiff's Motion to Strike its Affirmative
Defenses for the foregoing reasons.
1. This is a legal malpractice case in which a criminal defendant / the Plaintiff herein
retained counsel, fired her counsel, and then later pleaded nolo contendere to two
> S
criminal charges.
2. Despite her refusal to contest the charges, obvious guilt, and disregard for the law,
the Plaintiff has sued her initial criminal defense attorney.
3. Defendant filed its initial Answer and Affirmative Defenses, but upon Plaintiff filing
her Motion to Strike Affirmative Defenses, the Defendant filed the Amended
Answer and Affirmative Defenses (Exhibit “A”), thereby mooting Plaintiff's Motion,
requiring its denial.
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11.
CASE NO. 312019CA000232
DEFENDANT'S MEMORANDUM OF LAW
Plaintiff contends that the Defendant's Affirmative Defenses must be stricken
without citing to any applicable case law pertinent to the Amended Affirmative
Defenses.
Plaintiff contends that the Court’s denial, without comment, of Defendant’s Motion
to Dismiss the Complaint bars its affirmative defenses, but this is not true as the
Court has not entered partial summary judgment on any defenses to date.
As to Defendant's First Affirmative Defense, comparative fault is a valid defense in
a legal malpractice case and ultimate facts have so,been pleaded as shown in the
case of Michael Kovach, P.A. v. Pearce, 427 So. 2d 1128 (Fla. 5th DCA 1983)
(Exhibit “B”).
As to Defendant's Second Affirmative Defense, judicial estoppel is a valid defense
as a matter of law and sufficient facts have been pleaded.
As to Defendant’s Third Affirmative Defense, Defendant has pleaded the Plaintiff
is not innocent of the criminal charges brought against her and thus her claims
against her criminal defense attorney as shown in Rowe v. Schrieber, 725 So. 2d
1245, 1251-1252 (Fla. 4th DCA 1999) (Exhibit “C”) are invalid as a matter of law.
As to Defendant’s Fourth Affirmative Defense, Defendant has stated a valid
affirmative defense as the Plaintiff has failed to meet the exoneration requirement
required by her to bring her claims and ultimate facts have been pleaded. See Id.
As to Defendant's Fifth Affirmative Defense, the Doctrine of Unclean Hands is a
valid affirmative defense and ultimate facts have been pleaded.
As to Defendant's Sixth Affirmative Defense, Defendant has raised the Impact Rule
and sufficient material acts to preclude Plaintiff's claims for negligent infliction of
emotional distress.CASE NO. 312019CA000232
DEFENDANT'S MEMORANDUM OF LAW
12.As to Defendant's Seventh Affirmative Defense, Defendant has pleaded that
despite Plaintiff's allegations in the Complaint, Plaintiff is not entitled to attorney's
fees in negligence cases such as this matter.
13.As to Defendant’s Eighth Affirmative Defense, Defendant has raised the valid
affirmative defense of In Pari Derelicto due to Plaintiff's failure to abide by the law
and pleas of nolo contendere.
14. As to Defendant’s Ninth Affirmative Defense, Defendant has raised the Judgmental
Immunity Defense and pleaded ultimate facts in support of same.
15.As to Defendant’s Tenth Affirmative Defense, Defendant has raised Plaintiff's
superseding and/or intervening acts as a cause of her damages, which is a valid
affirmative defense for which ultimate facts have been pleaded.
16. As to Defendant's Eleventh Affirmative Defense, Defendant has pleaded ultimate
facts to support the valid affirmative defense of abandonment. |
147. Accordingly, this Honorable Court should deny Plaintiff's Motion.
CERTIFICATE OF SERVICE 4 \
| HEREBY CERTIFY that a copy hereof has been furnished ‘by service through the ;
eportal to Leah M. Hubbard, 2046 79th Avenue, Vero Beach, FL 32966, Pro Se, Leah E
Hubbard, leahhubbard0706@gmail.com, on this 19T DAY JULY , 2019.
CONROY SIMBERG
Attorney for Defendant, E. Clayton Yates, P.A.
1801 Centrepark Drive East, Suite 200
West Palm Beach, FL 33401
Telephone: (561) 697-8088
Facsimile: (561) 697-8664
Primary Email: eservicewpb@conroysimberg.com
Secondary Email: jrubin@conroysimberg.com
t
By: _/s/ Jeffrey K. Rubin
Jeffrey K. Rubin, Esquire
Florida Bar No. 420841932201/4
IN THE CIRCUIT COURT OF THE 19TH JUDICIAL
CIRCUIT IN AND FOR INDIAN RIVER COUNTY,
FLORIDA
CASE NO. 312019CA00232
LEAH.M. HUBBARD,
Plaintiff,
v.
E. CLAYTON YATES, P.A.,
Defendant.
/
DEFENDANT, E. CLAYTON YATES, P.A.’S, AMENDED ANSWER TO THE
COMPLAINT, AFFIRMATIVE DEFENSES, AND DEMAND FOR TRIAL BY JURY
The Defendant, E. CLAYTON YATES, P.A., pursuant to the applicable Florida
Rules of Civil Procedure, files the following Amended Answer to the Plaintiff, LEAH
HUBBARD’s, Complaint for Malpractice, and would state as follows:
GENERAL ALLEGATIONS AS TO ALL COUNTS
1. Denied.
2. Denied. Me,
3. Denied.
4. Denied.
5. Plaintiff has restated portions of the Florida Rules of Professional Conduct,
but not the complete rules nor the interpretations and/or opinions on and/or of said rules.
To the extent a response Is required, Paragraph 5 is denied to the extent that it attempts
to impose any liability against Defendant.
6. Denied as worded.CASE NO. 312019CA00232
DEFENDANT'S AMENDED ANSWER TO THE COMPLAINT, AFFIRMATIVE DEFENSES, AND
7.
DEMAND FOR TRIAL BY JURY
Defendant is without sufficient knowledge and/or information to either admit
or deny the allegations contained within Paragraph 7, and, therefore, denies same.
8.
9.
10.
11.
Denied.
Denied.
Denied.
Defendant is without sufficient knowledge and/or information to either admit
or deny the allegations contained within Paragraph 11, and, therefore, denies same.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
Denied.
Denied.
Denied.
JURISDICTION, VENUE & PARTIES
Denied
Denied.
Denied.
Denied.
Denied.
Denied as worded.
Denied. Defendant is a professional association.
COUNT!
LEGAL MALPRACTICE, NEGLIGENT MISREPRESENTATION AND. FRAUD
As its response to the prefatory paragraph of Count |, Defendant repeats its
responses to Paragraphs 1-21 as if fully restated herein.
22.
Denied.CASE NO, 312019CA00232
DEFENDANT'S AMENDED ANSWER TO THE COMPLAINT, AFFIRMATIVE DEFENSES, AND
23.
24,
25.
26.
27.
28.
DEMAND FOR TRIAL BY JURY
Denied.
Denied as worded.
Denied as worded.
Denied.
Denied.
Defendant is without sufficient knowledge and/or inforfhation to either admit
or deny the allegations contained within Paragraph 28, and, therefore, denies same.
29.
Defendant is without sufficient knowledge and/or information to either admit
or deny the allegations contained within Paragraph 29, and, therefore, denies same.
30.
Defendant is without sufficient knowledge and/or information to either admit
or deny the allegations contained within Paragraph 30, and, therefore, denies same.
31.
Defendant is without sufficient knowledge and/or information to either admit
or deny the allegations contained within Paragraph 31, and, therefore, denies same.
32.
33.
34,
35.
36.
37.
38.
39.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
a. Denied.
b, Denied.CASE NO. 312019CA00232
DEFENDANT'S AMENDED ANSWER TO THE COMPLAINT, AFFIRMATIVE DEFENSES, AND
40,
41.
42.
43.
44.
45.
46.
47.
48.
49.
50.
51.
52.
53.
54.
i.
j.
DEMAND FOR TRIAL BY JURY
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.DEFENDANT'S AMENDED ANSWER TO THE COMPLAINT,
55.
56.
57.
58.
59.
60.
61.
62.
63.
64.
65.
66.
67.
68.
69.
70.
71.
72.
73.
74,
75.
76.
77.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
CASE NO. 312019CA00232
AFFIRMATIVE DEFENSES, AND
DEMAND FOR TRIAL BY JURY‘ CASE NO, 312019CA00232
DEFENDANT'S AMENDED ANSWER TO THE COMPLAINT, AFFIRMATIVE DEFENSES, AND
DEMAND FOR TRIAL BY JURY
78. Denied.
79. Denied.
80. Denied.
81. Denied.
82. Denied. j
83. Denied. ,
84. Denied.
85, Denied.
86. Denied.
87. Denied.
88. Denied. |
COUNT II : |
LEGAL MALPRACTICE BREACH OF FIDUCIARY DUTY
As its response to the prefatory paragraph of Count Il, Defendant repeats its
responses to Paragraphs 1-21 as if fully stated herein.
89. Denied. |
90. Denied. |
91. Denied. i
92. Denied.
93. Denied.
a. Denied.
a. [sic]. Denied.
b. Denied.DEFENDANT’
94,
95.
96.
97.
98.
99.
100.
101.
102.
103.
104.
105.
106.
107.
j.
k.
Denied.
Denied.
Denied.
Denied.
Denied.
. Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
CASE NO. 312019CA00232
'S AMENDED ANSWER TO THE COMPLAINT, AFFIRMATIVE DEFENSES, AND
DEMAND FOR TRIAL BY JURYCASE NO, 312019CA00232
DEFENDANT'S AMENDED ANSWER TO THE COMPLAINT, AFFIRMATIVE DEFENSES, AND
108.
409.
110.
111.
112.
113.
414.
415.
116.
417.
118.
419.
420.
4121.
122.
123.
124.
425.
126.
427.
128.
129.
130.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
DEMAND FOR TRIAL BY JURYCASE NO. 312019CA00232 |
DEFENDANT'S AMENDED:-ANSWER TO THE COMPLAINT, AFFIRMATIVE DEFENSES, AND |
DEMAND FOR TRIAL BY JURY " |
131. Denied.
132. Denied.
433. Denied.
434. Denied. my
435. Denied.
136. Denied.
437. Denied.
138, Denied.
139, Denied.
140. Denied.
141. Denied. .
142. Denied.
143. Denied.
COUNTIII
LEGAL MALPRACTICE NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
As its response to Count Ill, Defendant repeats its responses to Paragraphs 1-21
as if fully restated herein.
144, Denied.
145. Denied.
146, Denied.
447. Denied.: CASE NO, 312019CA00232
DEFENDANT'S AMENDED ANSWER TO THE COMPLAINT, AFFIRMATIVE DEFENSES, AND
DEMAND FOR TRIAL BY JURY
148. Denied.
149. Denied.
150. Denied.
Defendant denies each and every allegation in the Complaint which is not
specifically admitted herein.
AFFIRMATIVE DEFENSES
Ariw nk —_—eEeeEee
4. As its First Affirmative Defense, Defendant would show unto the Court that
the Plaintiff's claims are barred, in whole or in part, due to her own negligence, reckless,
and/or careless conduct, as Plaintiff engaged in criminal acts subsequent to her initial
arrest in October 2017 and/or acted in a manner to cause her to be arrested for criminal
acts subsequent to her initial arrest. Plaintiff also failed to abide by the terms and
conditions of her bond and release after her initial arrest, thereby causing her second
arrest in October 2017, which also constitutes negligence, reckless, and/or careless
conduct. Said negligence is a contributing and/or the sole legal proximate cause of the
injuries and damages complained of and the Plaintiff, therefore, is barred from recovery
against the Defendant, E. CLAYTON YATES, P.A., or in the altemative, the damages for
recovery should be reduced by the Doctrine of Comparative Negligence. See Michael
Kovach, P.A. v. Pearce, 427 So. 2d 1128 (Fla. 5th DCA 1983); G' Gilchrist Timber Co. v. ITT
Rayonier, Inc., 696 So. 2d 334 (Fla. 1997)
2. As its Second Affirmative Defense, Defendant would show unto the Court
that the Plaintiff is judicially estopped from contending that she is innocent and/or not
guilty of any criminal charges discussed in this action as has previously taken inconsistent
position(s) by pleading nolo contendere in the cases of State of Florida v. Leah Hubbard,
10CASE NO. 312019CA00232
DEFENDANT'S AMENDED ANSWER TO THE COMPLAINT, AFFIRMATIVE DEFENSES, AND
DEMAND FOR TRIAL BY JURY
Case No. 31-2017-CF-000922-AXXXXX and State of Florida v. Leah Hubbard, Case No.
31-2017-CF-001265-AXXXXX, and, was sentenced to six months.of incarceration at the
county jail, community control and probation, and, therefore, Plaintiff's claims are barred
as a matter of law. See Keys Co. v. Partners, Inc., 881 So, 2d 605 (Fla. 3rd DCA 2004).
3. As its Third Affirmative Defense, Defendant would show.unto the Court that
the Plaintiff's claims for legal malpractice, breach of fiduciary duty, negligent
misrepresentation, fraud, and negligent infliction of emotional distress, in this case are
barred as a matter of law as she pleaded nolo contendere in the cases of State of Florida
v, Leah Hubbard, Case No. 31-2017-CF-000922-AXXXXX and State of Florida v. Leah
Hubbard, Case No. 31-2017-CF-001265- AXXXXX, and, was séntenced to six months
incarceration at the county jail, community control and probation, and, as such, Plaintiff
cannot establish and/or allege that she is actually innocent of the underlying crimes, and
therefore, Plaintiff's claims are barred as a matter of law. Proto v. Graham, 788 So. 2d
393, 395 (Fla. 5th DCA 2011); Rowe v. Schrieber, 725 So. 2d 1245 (Fla. 4th DCA 1999).
4, As its Fourth Affirmative Defense, Defendant would show unto the Court
that the Plaintiffs claims for legal malpractice are barred asa matter of law as she has
failed to establish a pre-condition for the pursuit of her claims as she has not pleaded
and/or proven that she obtained appellate or post-conviction of the relief of the crimes
she pleaded nolo contendere to in State of Florida v. Leah Hubbard, Case No, 31-2017-
State of Florida v. Lean Mpbel’
CF-000922-AXXXXX and State of Florida v. Leah Hubbard, Case No. 31-2017-CF-
State _of Florida V. Leal Mie
001265-AXXXXX, and was sentenced to six months of incarceration at the county jail,
community control, and probation. See Steele v. Kehoe, 747 So. 3d 931, 933 (Fla.1999).
11CASE NO. 312019CA00232
DEFENDANT'S AMENDED ANSWER TO THE COMPLAINT, AFFIRMATIVE DEFENSES, AND
DEMAND FOR TRIAL BY JURY
5. As its Fifth Affirmative Defense, Defendant would show unto the Court that
Plaintiff's claims are barred by the Unclean Hands Doctrine as Plaintiff herself acted with
unclean hands due to her subsequent arrest in October 2017, her failure to abide by the
terms and condition of her release and bond after her initial arrest in July 2017, her failure
to listen to and abide by competent legal advice provided by the Defendant, and pleading
nolo contendere to crimes in State of Florida v. Leah Hubbard, Case No. 31-2017-CF-
000922-AXXXXX and State of Florida v. Leah Hubbard, Case No, 31-2017-CF-001265-
AXXXXX.
6. As its Sixth Affirmative Defense, Defendant would show unto the Court that
Plaintiff's claims for negligent infliction of emotional distress are barred as a matter of law
by the Impact Rule as the Plaintiff did not sustain or suffer from physical contact, and/or
Plaintiff did not suffer from any physical manifestation of an alleged emotional injury, and
as such, she is barred from recovery of non-economic damages. See LeGrande v.
Emmanuel, 889 So. 2d 991 (Fla. 3d DCA 2004)
7. As its Seventh Affirmative Defense, Defendant would show unto the Court
that Plaintiff is barred from recovery of any attorney's fees as she has not cited to a
statutory or contractual right to assert such claims, and, no such right exists in claims for
legal malpractice, fraud, negligent infliction of emotional distress, and/or negligent
misrepresentation. See Martin v. Paskow, 339 So. 2d 266, 267 (Fla. 3d DCA 1976)
8. As its Eighth Affirmative Defense, Defendant would show unto the Court
that Plaintiff's claims are barred, in whole or in part, due to the Doctrine of In Pari Delicto
as Plaintiff kept an illegal and/or non-permitted concealed weapoh on her person and/or
in her vehicle, and, therefore Defendant cannot be held liable due to any alleged advice
12fe
CASE NO. 312019CA00232
DEFENDANT'S AMENDED ANSWER TO THE COMPLAINT, AFFIRMATIVE DEFENSES, AND
DEMAND FOR TRIAL BY JURY
to engage in or conduct such alleged illegal conduct. As such, Plaintiff's claims that the
Defendant's acts or omissions caused or contributed to her second arrest in October
2017, and, any alleged injuries or damages therefrom, are barred as a matter of law. See
Turner-v. Anderson, 704 So. 2d 748 (Fla. 4th DCA 1998). .
9. As its Ninth Affirmative Defense, Defendant would show unto the Court that
Plaintiff's claims are barred pursuant to the Judgmental Immunity Doctrine as the
Defendant acted in good faith and made a diligent inquiry into an area of law (i.e., criminal
law and efforts to satisfactory plead and/or dismiss the initial and/or second arrests of
Plaintiff), and, as such, the Defendant should not be held ‘liable for providing advice or
taking action in such an unsettled or debatable area of law. See Meir v. Kirk, Pinkerton
McClelland, Savary, & Carr, P.A., 561 So. 2d 399 (Fla. 2d DCA 1990). ;
40. Asits Tenth Affirmative Defense, Defendant would show unto the Court that
Plaintiff's claims are barred as a matter of law due to the Plaintiffs subsequent /
superseding, and/or intervening acts, including but not limited to her subsequent arrest in
October 2017 and/or her pleas of nolo contendere in two criminal cases which occurred,
in part, upon the recommendations of her subsequent attorney; and Plaintiffs lack of
innocence for those criminal charges, in March and April 2018. See Frazier v. Effman,
501z So. 2d 114 (Fla. 4th DCA 1987).
44. As its Eleventh Affirmative Defense, Defendant would show unto the Court
that the Plaintiff has abandoned her claims in this action by not proceeding to trial, being
convicted, and/or appealing, any court rulings or pleas of nolo contendere.
Defendant reserves the right to add and/or amend its Affirmative Defenses
13CASE NO. 312019CA00232
DEFENDANT'S AMENDED ANSWER TO THE COMPLAINT, AFFIRMATIVE DEFENSES, AND
DEMAND FOR TRIAL BY JURY
Defendant hereby demands trial by jury on all issues so triable as a matter of tight
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DEMAND FOR JURY TRIAL *
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and law. i
CERTIFICATE OF SERVICE
| HEREBY CERTIFY that a copy hereof has been furnished by service through the
eportal to Leah M. Hubbard, 2046 79th Avenue, Vero Beach, FL 32966,
leahhubbard0706@gmail.com, this 10th day of __July , 2019,
CONROY SIMBERG
Attorney for Defendant, E. Clayton Yates, P.A. i
1801 Centrepark Drive East, Suite 200 |
West Palm Beach, FL 33401 !
Telephone: 561-697-8088
Facsimile: 561-697-8664
Primary Email: eservicewpb@conroysimberg.com
Secondary Email: jrubin@conroysimberg.com
By: /s/ Jeffrey K. Rubin
John A. Lurvey, Esquire
Florida Bar No. 570222
Jeffrey K. Rubin, Esquire
Florida Bar No. 42084
14Michael Kovach, P.A. v. Pearce, 427 So.2d 1128 (1983)
KeyCite Yellow Flag - Negative Treatment
Declined to Follow by Gorski v. Smith, Pa.Super., October 30, 2002
427 So.2d 1128
District Court of Appeal of Florida,
Fifth District.
MICHAEL KOVACH, P.A., a Florida
corporation, Michael Kovach, Individually,
and Lawyers Professional Liability
Insurance Company, Appellants,
v.
Robert PEARCE, as Personal Representative
of the Estate of Alvada Pearce, Deceased, and
Robert L. Pearce, Individually, Appellees.
No. 82-192.
|
March 16, 1983.
Synopsis
Former client brought legal malpractice suit arising out
of attorney's representation of him in double comparative
negligence situation, The Circuit Court, Citrus County,
William T. Swigert, J. returned verdict in favor of former
client and against attorney and his insurer, and appeal was
taken. The District Court of Appeal, Cowart, J., held that: (1)
judicial action taken with respect to certain jury instruction
was insufficient, and (2) it was error not to use former client's
suggested special verdict form.
Reversed and remanded.
West Headnotes (2)
(i) Attorney and Client
@» Pleading and Evidence
Trial
@= Purpose and Effect of Evidence
In legal malpractice action arising out of
attorney's representation in double comparative
negligence situation, accident report showing
that former client had not been charged
with traffic violation as a result of accident
was inadmissible as evidence to comparative
negligence issue but was admissible in
malpractice action because it was part of
attorney's file and arguably something, the
use and effect of which attorney might
have considered in evaluating and defending
action, but necessitated a cautionary limiting
instruction; although such an instruction was
requested, judicial action taken was insufficient
to explain to jury for what purpose jury could
consider report.
3 Cases that cite this headnote
[2] Attorney and Client _
Trial and Judgment
In legal malpractice action arising out of
attorney's representation in a double comparative
negligence situation, fact that trial of malpractice
action involved two separate comparative
negligence issues was not reason for not applying
rule requiring verdict form that apportions
percentage of negligence between parties but
was good reason to apply the rule severally to
each of the two comparative negligence issues;
thus, it was error not to use former client's
suggested special verdict form.
1 Cases that cite this headnote
Attorneys and Law Firms
*1128 Andrew G. Pattillo, Jr, and Russell W. LaPeer of
Pattillo & McKeever, P.A., Ocala, for appellants.
William A. Dooley of Thorp, Reed, Conley & Dooley,
Sarasota, and Charles J. Cheves of Cheves & Rapkin, Venice,
for appellees. te
Opinion
COWART, Judge.
This case involves the use of a special verdict in a malpractice
suit.
Appellee Pearce, while operating his mother's automobile,
negligently injured one Albert Todter. Todter sued Pearce and
his mother and Pearce hired appellant Kovach, an attorney,
to defend the Todter-Pearce action. Under circumstances
|
|Michael Kovach, P.A. v. Pearce, 427 So.2d 1128 (1983)
possibly attributable, at least in part, to the negligence of
Kovach, a judgment was entered in favor of Todter against
Pearce for $600,000. Pearce then sued Kovach and his
professional liability insurer, appellant Lawyers Professional
Liability Insurance Company, in this malpractice action. The
jury in this case returned a verdict in favor of Pearce and
against Kovach and his insurer for $717,690. This appeal is
from a final judgment based on that verdict as adjusted by the
court for comparative negligence.
The Pearce-Kovach malpractice case involved a double
comparative negligence situation, Pearce sued Kovach on
the theory that Todter was either totally responsible for his
own injury or that Todter was guilty of some negligence that
combined with negligence of Pearce in producing Todter's
injuries *1129 but that, in either event, the $600,000
judgment resulted in whole, or in large part, because of the
negligence of Kovach in failing to assert, as a defense in
the Todter-Pearce action, Todter's contributory (comparative)
negligence and certain other matters. Accordingly it was
necessary for the jury in the malpractice action to literally “re-
try” the Zodter v. Pearce case to correctly determine Todter's
negligence, if any, and Pearce's negligence, if any, causing
Todter’s injuries and, if both were negligent, to compare their
negligence, in order to determine how much of the $600,000
verdict was properly chargeable to Pearce's negligence in
injuring Todter, how much was chargeable to Todter’s own
negligence, and how much resulted from the alleged negligent
failure to properly defend. In the malpractice action, Kovach
asserted as a comparative negligence defense that Pearce
was contributively negligent in the defense of the Todter
action. Therefore, if the jury found that both Pearce and
Kovach were negligent as to the defense of the Todter-Pearce
action, it was also necessary for the jury to compare the
negligence of Pearce and Kovach involved in the failure to
see that the Todter-Pearce action was properly defended. This
“double” comparative negligence aspect of the malpractice
action caused several difficulties, two of which we discuss.
[1] The first problem relates to the admissibility of one
item of evidence (an accident report showing that Pearce had
not been charged with a traffic violation as a result of the
Todter-Pearce accident). This would have been inadmissible
as evidence as to the Todter-Pearce comparative negligence
issue but was admissible in the Pearce-Kovach malpractice
action because the accident report was part of the file of
attorney Kovach and arguably something, the use and effect
of which, an attorney might properly consider and evaluate in
defending the Todter-Pearce action. Since it was inadmissible
for one purpose but admissible for another, it was admissible
but necessitated a cautionary, limiting instruction. Such an
instruction was requested but the judicial action taken was
insufficient to explain to the jury for what purpose this
evidence could, and for what purpose it could not, be
considered.
[2] The second difficulty caused by the two-in-one
comparative negligence aspect of the malpractice action
related to the special verdict used, The Florida Supreme
Court's decision in Lawrence v. Florida East Coast Railway
Co., 346 So.2d 1012 (Fla.1977), requires special verdicts in
the trial of comparative negligence. Appellant submitted, and
requested the use of, a special vérdict form that required the
jury to show the apportionment of fault (negligence) between
Pearce and Kovach relating to the negligent defense of the
Todter-Pearce action and which form also required the jury
to show an apportionment of negligence as between Todter
and Pearce in the underlying Todter-Pearce negligence action.
Over appellant's objection this verdict form was not used and
instead a form prepared by appellees was used which showed
only an apportionment of fault between Pearce and Kovach
in the malpractice action. The trial judge was of the opinion
that appellees’ proposed form did follow the Lawrence rule
requiring a verdict form that apportioned the percentage of
negligence between the parties in the case being tried (the
Pearce-Kovach action), but did not think the rule particularly
applied in this case because “we're trying almost two cases”.
During deliberations the jury returned to the courtroom and
asked questions that clearly indicated they were confused on
this very aspect of the verdict form. The trial judge understood
and explained “-there is no place on the plaintiff's verdict
form for you to put-to place a percentage of any negligence
in the underlying | suit, That you will calculate yourself.”
However this did not solve the problem. One of the jurors later
complained, “we don't have the Todter versus Pearce forms.”
Further dialogue between the court and the jurors indicates
that the jurors remained confused and baffled because there
was no provision in the verdict form for them to apportion
fault between Todter and Pearce in the underlying case. At
this point, appellant's counsel again urged the use of his
special verdict forms and appellee's counsel opposed saying
“i's too late now” and “a special interrogatory *1130 is
out of the question.” The trial court correctly instructed the
jury to compare the negligence of Todter and Pearce in the
underlying action but failed to provide a special verdict form
that permitted that to be done. Such a verdict would have
permitted appellate review of the computations apportioning
Todter's damages on the basis of fault necessary to insure
SLANE © 2019 Thomson Reuters. No claim to original U.S. Government Works.Michael Kovach, P.A. v. Pearce, 427 So.2d 1128 (1983)
that the goal of comparative negligence was achieved and,
in keeping with Lawrence, also insure that a single, but not
a double, reduction in damages was made for comparative
negligence. The fact that the trial of the malpractice action
involved two separate comparative negligence issues was not
reason for not applying the reason and rule of Lawrence but
was good reason to apply the rule severally to each of the two
comparative negligence issues. Thus, it was error to not use
appellant's suggested special verdict form.
For these reasons we reverse and remand for a new trial, In
view of this disposition we do not address the other points
argued in the briefs.
REVERSED AND REMANDED.
COBB, J., and JOHNSON, CLARENCE T,, Jr, A.J., concur.
All Citations
427 So.2d 1128
End of Document
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
“IESTLANE © 2019 Thomson Reuters. No claim to original U.S. Government Works.Rowe v. Schreiber, 725 So.2d 1245 (1999)
KeyCite Yellow Flag - Negative Treatment
Disagreed With by Rodriguez v. Nielsen, Neb., April 21, 2000
725 So.2d 1245 Bl
District Court of Appeal of Florida,
Fourth District.
Robert R. ROWE, Appellant,
v.
Alan H. SCHREIBER, Public Defender of the 17th
Judicial Circuit of Florida, and Richard L.
Jorandby; Public Defender of the 15th Judicial
Circuit of Florida, Appellees.
No. 971997
Jan. 27, 1999.
6
Synopsis
After criminal defendant prevailed on his claim for
postconviction relief, he filed action for legal malpractice
against two public defenders. The Circuit Court, Broward
County, Harry G. Hinckley, Jr., J., dismissed complaint.
Defendant appealed. On grant of rehearing in part, the
District Court of Appeal, Gross, J., held that: (1)
limitations period on defendant’s cause of action began to
run when his motion for postconviction relief was
granted, and (2) to prevail on claim of legal malpractice
against criminal defense attorney, criminal defendant
must prove that he was innocent of underlying crime.
Reversed and remanded.
(ay
West Headnotes (7)
/_Limitatiow of Actions
¢ ~~ g=Negligence in Performance of Professional
i Services
{ A defendant must successfully obtain
post-conviction relief for the cause of action to
t accrue in a case involving the legal malpractice {
of a criminal defense attorney. West’s F.S.A. §
95.11(4)(a).
{5}
T Cases-that cite this headnote
© 2019 Thomson Reu
S. Government Works.
Limitation of Actions
‘Attorneys
Actual or constructive knowledge of the accrual
of a cause of action or redressable harm is the
trigger for the commencement of the statute of
limitations for legal malpractice. West’s F.S.A.
§ 95,11(4)(@).
1 Cases that cite this headnote
Attorney and Client
«Elements of Malpractice or Negligence
Action in General
The elements of an action for legal malpractice
are (1) the employment of the attorney; (2) the
attorney’s neglect of a reasonable duty; and (3)
that the attorney’s negligence was the proximate
cause of loss to the client.
2 Cases that cite this headnote
Judgment
Civil or Criminal Proceedings
A judicial determination in a postconviction
proceeding that a defendant has received the
effective assistance of counsel is binding on that
defendant who brings a civil malpractice action
against his criminal defense lawyer. U.S.C.A.
Const.Amend. 6; West’s F.S.A. RCrP Rule
3.850,
2 Cases that cite this headnote
Limitation of Actions
<=Questions for JuryRowe v. Schreiber, 725 So.2d 1245 (1999)
When a criminal defendant discovers or should
have discovered his attorney’s malpractice, thus
starting the limitations period, is a question of
fact. West’s F.S.A. § 95.11(4)(a).
Cases that cite this headnote
‘61 Limitation of Actions
Attorneys
Limitations period on criminal defendant’s
cause of action against public defenders for legal
malpractice began to run on date that trial court
granted defendant’s motion for postconviction
relief; defendant had no notice or knowledge of
redressable harm until that date. West’s F.S.A. §
95.11(4)(a).
3 Cases that cite this headnote
(1 ~“Attorney-and-Client ~~
(Pleading and Evidence
| To prevail on a claim of legal malpractice
| against a criminal defense attorney, a criminal
| defendant, as part of the causation element of
| the cause of action, must prove by the greater
| weight of the evidence that he was innocent of
| the crimes charged in the underlying criminal
\ proceeding.
5 Cases that cite this headnote
Attorneys and Law Firms
*1246 Diane H. Tutt of Diane H. Tutt, P.A., Plantation,
for appellant.
Lillian Conrad of Law Offices of Lillian Conrad,
Plantation, Dunn & Johnson, P.A., Miami, and Neil Rose
of Bernstein & Chackman, P.A., Hollywood, for
appellees.
ON MOTION FOR REHEARING
GROSS, J.
We grant appellant’s motion for rehearing in part,
withdraw our previous opinion, and substitute the
following.
Robert Rowe appeals an order dismissing his fifth
amended complaint with prejudice.
On December. 14, 1984, Rowe was convicted of several
counts of capital sexual battery and was sentenced to four
terms of life imprisonment. This court affirmed the
conviction on April 11, 1988. See Rowe v. State, 523
So.2d 590 (Fla. 4th DCA 1988). Rowe timely moved for
post-conviction relief under Florida Rule of Criminal
Procedure 3.850, which the trial court denied without an
evidentiary hearing. On November 20, 1991, this court
reversed and remanded the case for an evidentiary hearing
™to determine the merits of the defendant’s position.” See
Rowe v. State, 588 So.2d 344 (Fla. 4th DCA 1991).
The grounds asserted in the motion for post-conviction
relief were that numerous errors committed at trial by
Rowe’s assistant public defender amounted to a violation
of! the constitutional ‘right to effective assistance of
counsel. On July 15, 1994, after an evidentiary hearing,
the trial court granted *1247 Rowe’s motion for
post-conviction relief and ordered a new trial based on the
ineffective assistance of Rowe’s trial counsel. The state
Molle prossed the charges against Rowe on May 15, 1995.
On November 23, 1994, Rowe filed a legal malpractice
suit against attorney Bradley Stark, who had represented
him on the post-conviction relief matter from January 11,
1989 through March 10, 1993. In his third amended
complaint, filed on December 26, 1995, Rowe added Alan
Schreiber as a party. Schreiber is the Public Defender for
the Seventeenth Judicial Circuit, whose office represented
Rowe at his trial in 1984, Rowe alleged that Schreiber
negligently managed the office and negligently supervised
the assistant public defender who had malpracticed at the
original trial.
In his fourth amended complaint, filed on March 13,
1996, Rowe added Richard Jorandby as a party. Jorandby
WESTLAW © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2Rowe v. Schreiber, 725 So.2d 1245 (1999)
is the Public Defender for the Fifteenth Judicial Circuit,
whose office handled the direct appeal from the 1984
conviction. Rowe alleged that his direct appeal was
negligently handled based on the failure to raise the issue
of ineffective assistance of trial counsel, despite the fact
that “instances of [trial counsel’s] ineffective assistance
were clear on the record.” See Appellant’s Initial Brief, at
3. Rowe maintained that “had the issue been raised in the
initial appeal, an evidentiary hearing or new trial would
have been mandated by the appellate court and that as a
result of Jorandby’s negligence, [Rowe’s] release from
prison and ultimate invalidation of his convictions and
sentences were delayed.” Id. at 3-4.
Schreiber and Jorandby filed identical motions to dismiss
on the ground that the actions were barred by the two year
statute of limitations contained in section 95.11(4),
Florida Statutes (1997). The trial court granted the
motions.
We hold that the limitations period under section
95.11(4)(a), began to run when the trial court granted
Rowe’s motion for post-conviction relief based on
ineffective assistance of counsel. Using this date, the
actions against both Schreiber and Jorandby were timely.
Generally, a statute of limitations begins to run from the
time a cause of action accrues. See § 95.031, Fla. Stat.
(1997). A “cause of action accrues when the last element
constituting the cause of action occurs.” § 95,031(1), Fla.
Stat. (1997). For professional malpractice actions, the
statute of limitations is two years, with the period of
limitations running “from the time the cause of action is
discovered or should have been discovered with the
exercise of due diligence.” § 95.11(4)(a), Fla. Stat.
(1997). Construing this section for professional
transactional malpractice, the supreme court has written
that “[g]enerally, a cause of action for negligence does not
accrue until the existence of a redressable harm or injury
has been established and the injured party knows or
should know of either the injury or the negligent act.”
Peat, Marwick, Mitchell & Co. v. Lane, 565 So.2d 1323,
1325 (Fla.1990) (citations omitted). Cases cited with
approval in Peat, Marwick have interpreted section
95,11(4)(a) to mean that
the event which triggers the
running of the statute of limitations
is notice to or knowledge by the
injured party that a cause of action
has accrued in his favor, and not
the date on which the negligent act
which caused the damages was
actually committed.
Edwards v. Ford, 279 So.2d 851, 853 (Fla.1973) (quoting
Downing v, Vaine, 228: So0.2d 622, 625 (Fla. 1st DCA
1969)); Birnholz v. Blake, 399 So.2d 375 (Fla. 3d DCA
1981). With regard to litigation-related legal malpractice,
the supreme court recently held that the two year statute
of limitations begins to run when the final judgment
becomes final. See Silvestrone v, Edell, 721 So.2d 1173,
23 Fla. L. Weekly S625 (Fla. 1998).
Rowe argues that the “redressable harm” or accrual of the
cause of action in this case *1248 arose when he was
accorded post-conviction relief on July 15, 1994. Under
this view, post-conviction relief under Rule 3.850
becomes an additional élement in a cause of action for
legal malpractice against a criminal defense attorney, such
that a cause of action cannot accrue for statute of
limitations purposes until a criminal defendant obtains
post-conviction relief, See Shaw v, State, Dep't of Admin.,
816 P.2d 1358 (Alaska 1991).
In support of his argument, Rowe cites to Steele v. Kehoe,
23 Fla. L. Weekly D771, 724 So.2d 1192 (Fla, Sth DCA
1998), rev. granted, 722 So.2d 194 (Fla. 1998), a case
where a convicted criminal defendant sued his lawyer for
malpractice for failing to timely file a Rule 3.850 motion
on his behalf. The trial court dismissed the complaint,
ruling that the 3.850 motion was “Surisdictionally barred,”
since the defendant was unable to prove that he, was
improperly convicted, because he had not had the
underlying conviction ‘set aside, which, of course, he
could not do as a result of the untimely filing of the
post-conviction relief motion. Id, at D772, 724 So.2d at
1194-95. The fifth district affirmed the dismissal, while
sympathizing with the Catch-22 in which the defendant
was entangled. Id.
Steele was primarily concerned with the narrow issue of
the remedy that should be available to a defendant whose
attorney neglects to file a Rule 3.850 motion within the
two year time limitation of the rule. See Fla.R.Crim.P.
3.850(b). Steele was not a case where the purported
malpractice involved the ineffective assistance of counsel
at a criminal trial. In affirming the dismissal, the fifth
district adopted the broad rule applicable to all legal
malpractice in the context of a criminal case—that
“exoneration is a prerequisite to a legal malpractice action
arising from a criminal prosecution.” Jd. at D772, 724
S0.2d at 1193. As “logical support” for this holding, the
fifth district set forth three policy reasons:
WESTLAW © 2019 Thomson Reuters. No claim to original U.S, Government Works. 3Rowe v. Schreiber, 725 So.2d 1245 (1999)
First, criminal procedure provides a
remedy for ineffective assistance of
counsel. Judicial economy will be
best served if we permit the
criminal court to determine the
issue of ineffective assistance of
counsel. If the court should
determine that the attorney’s
representation, even if sub-par, did
not affect the result of the criminal
trial then a subsequent malpractice
action should not lie. Second,
public policy should recognize that
unless a defendant is exonerated,
the proximate cause of the
defendant’s conviction is his or her
commission of a crime and not
legal malpractice. Third, and most
important, unless exoneration is
accomplished, a legal malpractice
action would be an inadequate
remedy.
Id.
Judge Griffin’s dissent in Steele noted that Steele was
difficult to reconcile with the first district’s decision in
Martin v. Pafford, 583 So.2d 736 (Fla. 1st DCA 1991), In
that case, Martin was convicted of first degree murder in
1981, The conviction was affirmed on direct appeal in
1982. On November 23, 1984, a lawyer wrote Martin that
the attorney who had represented her at trial was
incompetent. In 1985, Martin filed a motion for
post-conviction relief alleging that her trial counsel had
provided ineffective assistance of counsel. The trial court
denied the motion, but the first district reversed and
granted Martin a new trial based upon the ineffective
assistance of the trial attorney. The first district’s decision
was rendered in December, 1986 and rehearing was
denied in February, 1987. ~
Martin filed a legal malpractice suit against her trial
attorney in June, 1987. The trial court dismissed the case,
ruling that the suit was barred by the two year statute of
limitations in section 95.11(4)(a). On appeal, Martin
argued that her cause of action for legal malpractice
accrued at the time the first district provided her with
post-conviction relief, which she characterized as part of
the “appellate review of the underlying legal proceeding.”
Id. at 738, The first district rejected her argument, ruling
that the malpractice cause of action accrued on November
23, 1984, when the lawyer had written her about her trial
lawyer’s incompetence. In reaching this result, the first
district wrote:
Martin’s claim of malpractice was
not dependent upon appellate
reversal of her conviction. Martin
was not required to have succeeded
in obtaining collateral relief *1249
from her criminal conviction before
she could civilly sue her attorney
for malpractice. If she had not even
filed a postconviction proceeding,
she would still have been entitled to
bring her civil suit for malpractice.
Id. at 738 (emphasis supplied). The Martin court reached
the conclusion italicized-above without any discussion or
citation to authority.
Steele and Martin represent the two divergent views in
cases from other jurisdictions. The views appear to be
driven, at least in part, by judicial discomfort with legal
malpractice cases arising from criminal proceedings. As
Judge Griffin observed in her dissent in Steele:
many of the cases where courts
have not found exoneration to be a
required element of a malpractice
action are cases where the criminal
defendant failed to press his claim
within the specified period of
limitation after the commission of
malpractice.... Conversely, in cases
where the claim has been filed
timely, courts often conclude that
no claim can exist. until the
defendant has been exonerated.
Id. at D775, 724 So.2d at 1199.
Wl We believe that. the correct rule under section
95.11(4)(a), is that a defendant must successfully obtain
post-conviction relief for the cause of action to accrue ina
case involving the legal malpractice of a criminal defense
attorney. Such a requirement screens the case through
time sensitive and established pathways of the rules of
criminal procedure; the complexity of multiple ongoing
actions in civil and criminal court is avoided. This
requirement better implements the public policy of
“LAW ©2019 Thomson Reuters. No claim to original U.S. Government Works. 4Rowe v. Schreiber, 725 So.2d 1245 (1999)
Florida and creates a bright line rule in the criminal area
similar to that established by the supreme court in
Silvestrone. Many of the cases from other jurisdictions
reaching a different result are distinguishable, because of
the wording of their statute of limitations or the
differences in their rules of criminal procedure.
121 81 Under Florida law, actual or constructive knowledge
of the accrual of a cause of action or redressable harm is
the trigger for the commencement of the statute of
limitations for legal malpractice. See Peat, Marwick, 565
So.2d at 1325; Edwards, 279 So.2d at 853, The elements
of an action for legal malpractice are (1) the employment
of the attorney; (2) the attorney’s neglect of a reasonable
duty; and (3) that the attorney’s negligence was the
proximate cause of loss to the client. See, e.g., Lenahan v.
Russell L. Forkey, P.A., 702 So.2d 610, 611 (Fla. 4th
DCA 1997),
Success in a post-conviction relief motion pertains to the
“proximate cause of loss” element of the tort. Shaw, 816
P.2d at 1361. In this context, causation of “loss” involves
something more than the fact that a malpractice plaintiff
“has been convicted when he or she should not have
been.” Stevens v. Bispham, 316 Or. 221, 851 P.2d 556,
560 (1993). Rather, in the legal sense, the determination
of a “loss” involves a policy decision as to what
“collection of facts ... the law is prepared to recognize as
constituting” that element of a claim for legal malpractice.
Id.
As the New York Court of Appeals has observed,
criminal prosecutions are unique legal proceedings:
This is so because criminal
prosecutions involve constitutional
and procedural safeguards designed
to maintain the integrity of the
judicial system and to protect
criminal defendants from
overreaching governmental actions.
These aspects of criminal
proceedings make criminal
malpractice cases unique, and
policy considerations require
different pleading and substantive
rules.
Carmel v. Lunney, 70 N.Y.2d 169, 518 N.Y.S.2d 605, S11
N.E.2d 1126, 1128 (1987).
It is the public policy of Florida to treat a conviction of
any criminal offense as a final determination of guilt,
unless and until the conviction has been reversed, whether
on appeal or through post-conviction relief. See §§
924.051, 924.055, 924.06(3), Fla. Stat. (1997). The
requirement of a successful challenge to a conviction on
direct appeal or through post-conviction relief implements
the legislative policy of finality and coordinates with the
remedies provided by the rules of criminal procedure. We
agree with the policy reasons articulated in Steele in
support of this requirement.
*1250 || Significantly, the Florida Supreme Court has
recognized that the standards for “ ‘ineffective assistance
of counsel in criminal proceedings and for legal
malpractice in: civil proceedings are equivalent for the
purposes of application of the doctrine of collateral
estoppel.” ” Zeidwig v. Ward, 548 So.2d 209, 214
(Fla.1989) (quoting Knoblauch v. Kenyon, 163 Mich.App.
712, 415 N.W.2d 286, 289 (1987)); see also McCord v.
Bailey, 636 F.2d 606 (D.€.Cir.1980). Thus, a judicial
determination in a Rule 3.850 proceeding that a defendant
has received the effective assistance of counsel is binding
on that defendant who brings a civil malpractice action
against his criminal defense lawyer. In support of its
holding, the supreme court focused on the anomaly of
allowing a defendant
who ha[d] failed in attacking his
conviction on grounds of
ineffective assistance of counsel ...
to collect from his counsel damages
in a civil suit for ineffective
representation because he was
improperly imprisoned.
Zeidwig, 548 So.2d at 214. Zeidwig also referenced a
public policy rationale behind its holding— that it would
“undermine the effective administration of the judicial
system to ignore completely a prior decision of a court ...
on the same issue which” a plaintiff seeks to relitigate in a
subsequent civil action. Jd. (citation omitted).
Where the standard for, ineffective assistance is identical
to that of legal malpractice, it is not appropriate to treat
victims of the alleged negligence as having suffered a loss
caused by their attorney, unless they have demonstrated
that their counsel failed to meet the established
constitutional standards in a way that would justify
post-conviction relief. See Stevens, 851 P.2d at 562. The
policy identified in Zeidwig is equally applicable to this
“FLW © 2019 Thomson Reuters. No claim lo original U.S. Government Works. 5Rowe v. Schreiber, 725 So.2d 1245 (1999)
case; it is “illogical? and “unreasonable” to allow a
convicted or imprisoned defendant to collect damages
from his attorney, while the defendant remains under the
disability of the conviction or imprisonment caused by the
supposed malpractice. The finality of the criminal
conviction would be undermined where a conviction
remained valid for all purposes, but a defendant would
nonetheless be able to pursue compensation through the
civil courts,
For these reasons, we agree with those courts that have
required criminal defendants to obtain post-conviction
relief or to set aside their convictions on appeal before
pursuing an action for legal malpractice against their
defense attorneys. See Shaw, 816 P.2d at 1360; Morgano
y. Smith, 110 Nev. 1025, 879 P.2d 735, 737 (1994);
Carmel, 518 N.Y.S.2d 605, 511 N.E.2d at 1128; Stevens,
851 P.2d at 566; Peeler v. Hughes & Luce, 909 S.W.2d
494, 497-98 (Tex.1995).
Since success in a post-conviction relief proceeding is a
necessary precondition to the legal malpractice action, the
cause of action in this case cannot have accrued until
Rowe obtained post-conviction relief. This application of
the statute of limitations does not do violence to the
rationale behind the statute, which is that to allow stale,
antiquated claims would place a defendant at a “grave
disadvantage” as a result of “tattered or faded memories,
misplaced or discarded records, and missing or deceased
witnesses.” See Nardone v. Reynolds,
Preview
Filing # 92852643 E-Filed 07/19/2019 02:39:03 PM 1932201/4 IN THE CIRCUIT COURT OF THE 19TH JUDICIAL CIRCUIT IN AND FOR INDIAN RIVER COUNTY CASE NO. 312019CA000232 LEAH M. HUBBARD, Plaintiff, v. E. CLAYTON YATES, P.A., Defendant. / DEFENDANT’S MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF’S MOTION TO STRIKE AFFIRMATIVE DEFENSES Defendant, E. CLAYTON YATES P.A,, pursuant to the Florida Rules of Civil Procedure, requests that this Honorable Court deny Plaintiff's Motion to Strike its Affirmative Defenses for the foregoing reasons. 1. This is a legal malpractice case in which a criminal defendant / the Plaintiff herein retained counsel, fired her counsel, and then later pleaded nolo contendere to two > S criminal charges. 2. Despite her refusal to contest the charges, obvious guilt, and disregard for the law, the Plaintiff has sued her initial criminal defense attorney. 3. Defendant filed its initial Answer and Affirmative Defenses, but upon Plaintiff filing her Motion to Strike Affirmative Defenses, the Defendant filed the Amended Answer and Affirmative Defenses (Exhibit “A”), thereby mooting Plaintiff's Motion, requiring its denial. I | | t |10. 11. CASE NO. 312019CA000232 DEFENDANT'S MEMORANDUM OF LAW Plaintiff contends that the Defendant's Affirmative Defenses must be stricken without citing to any applicable case law pertinent to the Amended Affirmative Defenses. Plaintiff contends that the Court’s denial, without comment, of Defendant’s Motion to Dismiss the Complaint bars its affirmative defenses, but this is not true as the Court has not entered partial summary judgment on any defenses to date. As to Defendant's First Affirmative Defense, comparative fault is a valid defense in a legal malpractice case and ultimate facts have so,been pleaded as shown in the case of Michael Kovach, P.A. v. Pearce, 427 So. 2d 1128 (Fla. 5th DCA 1983) (Exhibit “B”). As to Defendant's Second Affirmative Defense, judicial estoppel is a valid defense as a matter of law and sufficient facts have been pleaded. As to Defendant’s Third Affirmative Defense, Defendant has pleaded the Plaintiff is not innocent of the criminal charges brought against her and thus her claims against her criminal defense attorney as shown in Rowe v. Schrieber, 725 So. 2d 1245, 1251-1252 (Fla. 4th DCA 1999) (Exhibit “C”) are invalid as a matter of law. As to Defendant’s Fourth Affirmative Defense, Defendant has stated a valid affirmative defense as the Plaintiff has failed to meet the exoneration requirement required by her to bring her claims and ultimate facts have been pleaded. See Id. As to Defendant's Fifth Affirmative Defense, the Doctrine of Unclean Hands is a valid affirmative defense and ultimate facts have been pleaded. As to Defendant's Sixth Affirmative Defense, Defendant has raised the Impact Rule and sufficient material acts to preclude Plaintiff's claims for negligent infliction of emotional distress.CASE NO. 312019CA000232 DEFENDANT'S MEMORANDUM OF LAW 12.As to Defendant's Seventh Affirmative Defense, Defendant has pleaded that despite Plaintiff's allegations in the Complaint, Plaintiff is not entitled to attorney's fees in negligence cases such as this matter. 13.As to Defendant’s Eighth Affirmative Defense, Defendant has raised the valid affirmative defense of In Pari Derelicto due to Plaintiff's failure to abide by the law and pleas of nolo contendere. 14. As to Defendant’s Ninth Affirmative Defense, Defendant has raised the Judgmental Immunity Defense and pleaded ultimate facts in support of same. 15.As to Defendant’s Tenth Affirmative Defense, Defendant has raised Plaintiff's superseding and/or intervening acts as a cause of her damages, which is a valid affirmative defense for which ultimate facts have been pleaded. 16. As to Defendant's Eleventh Affirmative Defense, Defendant has pleaded ultimate facts to support the valid affirmative defense of abandonment. | 147. Accordingly, this Honorable Court should deny Plaintiff's Motion. CERTIFICATE OF SERVICE 4 \ | HEREBY CERTIFY that a copy hereof has been furnished ‘by service through the ; eportal to Leah M. Hubbard, 2046 79th Avenue, Vero Beach, FL 32966, Pro Se, Leah E Hubbard, leahhubbard0706@gmail.com, on this 19T DAY JULY , 2019. CONROY SIMBERG Attorney for Defendant, E. Clayton Yates, P.A. 1801 Centrepark Drive East, Suite 200 West Palm Beach, FL 33401 Telephone: (561) 697-8088 Facsimile: (561) 697-8664 Primary Email: eservicewpb@conroysimberg.com Secondary Email: jrubin@conroysimberg.com t By: _/s/ Jeffrey K. Rubin Jeffrey K. Rubin, Esquire Florida Bar No. 420841932201/4 IN THE CIRCUIT COURT OF THE 19TH JUDICIAL CIRCUIT IN AND FOR INDIAN RIVER COUNTY, FLORIDA CASE NO. 312019CA00232 LEAH.M. HUBBARD, Plaintiff, v. E. CLAYTON YATES, P.A., Defendant. / DEFENDANT, E. CLAYTON YATES, P.A.’S, AMENDED ANSWER TO THE COMPLAINT, AFFIRMATIVE DEFENSES, AND DEMAND FOR TRIAL BY JURY The Defendant, E. CLAYTON YATES, P.A., pursuant to the applicable Florida Rules of Civil Procedure, files the following Amended Answer to the Plaintiff, LEAH HUBBARD’s, Complaint for Malpractice, and would state as follows: GENERAL ALLEGATIONS AS TO ALL COUNTS 1. Denied. 2. Denied. Me, 3. Denied. 4. Denied. 5. Plaintiff has restated portions of the Florida Rules of Professional Conduct, but not the complete rules nor the interpretations and/or opinions on and/or of said rules. To the extent a response Is required, Paragraph 5 is denied to the extent that it attempts to impose any liability against Defendant. 6. Denied as worded.CASE NO. 312019CA00232 DEFENDANT'S AMENDED ANSWER TO THE COMPLAINT, AFFIRMATIVE DEFENSES, AND 7. DEMAND FOR TRIAL BY JURY Defendant is without sufficient knowledge and/or information to either admit or deny the allegations contained within Paragraph 7, and, therefore, denies same. 8. 9. 10. 11. Denied. Denied. Denied. Defendant is without sufficient knowledge and/or information to either admit or deny the allegations contained within Paragraph 11, and, therefore, denies same. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. Denied. Denied. Denied. JURISDICTION, VENUE & PARTIES Denied Denied. Denied. Denied. Denied. Denied as worded. Denied. Defendant is a professional association. COUNT! LEGAL MALPRACTICE, NEGLIGENT MISREPRESENTATION AND. FRAUD As its response to the prefatory paragraph of Count |, Defendant repeats its responses to Paragraphs 1-21 as if fully restated herein. 22. Denied.CASE NO, 312019CA00232 DEFENDANT'S AMENDED ANSWER TO THE COMPLAINT, AFFIRMATIVE DEFENSES, AND 23. 24, 25. 26. 27. 28. DEMAND FOR TRIAL BY JURY Denied. Denied as worded. Denied as worded. Denied. Denied. Defendant is without sufficient knowledge and/or inforfhation to either admit or deny the allegations contained within Paragraph 28, and, therefore, denies same. 29. Defendant is without sufficient knowledge and/or information to either admit or deny the allegations contained within Paragraph 29, and, therefore, denies same. 30. Defendant is without sufficient knowledge and/or information to either admit or deny the allegations contained within Paragraph 30, and, therefore, denies same. 31. Defendant is without sufficient knowledge and/or information to either admit or deny the allegations contained within Paragraph 31, and, therefore, denies same. 32. 33. 34, 35. 36. 37. 38. 39. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. a. Denied. b, Denied.CASE NO. 312019CA00232 DEFENDANT'S AMENDED ANSWER TO THE COMPLAINT, AFFIRMATIVE DEFENSES, AND 40, 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. i. j. DEMAND FOR TRIAL BY JURY Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied.DEFENDANT'S AMENDED ANSWER TO THE COMPLAINT, 55. 56. 57. 58. 59. 60. 61. 62. 63. 64. 65. 66. 67. 68. 69. 70. 71. 72. 73. 74, 75. 76. 77. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. CASE NO. 312019CA00232 AFFIRMATIVE DEFENSES, AND DEMAND FOR TRIAL BY JURY‘ CASE NO, 312019CA00232 DEFENDANT'S AMENDED ANSWER TO THE COMPLAINT, AFFIRMATIVE DEFENSES, AND DEMAND FOR TRIAL BY JURY 78. Denied. 79. Denied. 80. Denied. 81. Denied. 82. Denied. j 83. Denied. , 84. Denied. 85, Denied. 86. Denied. 87. Denied. 88. Denied. | COUNT II : | LEGAL MALPRACTICE BREACH OF FIDUCIARY DUTY As its response to the prefatory paragraph of Count Il, Defendant repeats its responses to Paragraphs 1-21 as if fully stated herein. 89. Denied. | 90. Denied. | 91. Denied. i 92. Denied. 93. Denied. a. Denied. a. [sic]. Denied. b. Denied.DEFENDANT’ 94, 95. 96. 97. 98. 99. 100. 101. 102. 103. 104. 105. 106. 107. j. k. Denied. Denied. Denied. Denied. Denied. . Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. CASE NO. 312019CA00232 'S AMENDED ANSWER TO THE COMPLAINT, AFFIRMATIVE DEFENSES, AND DEMAND FOR TRIAL BY JURYCASE NO, 312019CA00232 DEFENDANT'S AMENDED ANSWER TO THE COMPLAINT, AFFIRMATIVE DEFENSES, AND 108. 409. 110. 111. 112. 113. 414. 415. 116. 417. 118. 419. 420. 4121. 122. 123. 124. 425. 126. 427. 128. 129. 130. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. DEMAND FOR TRIAL BY JURYCASE NO. 312019CA00232 | DEFENDANT'S AMENDED:-ANSWER TO THE COMPLAINT, AFFIRMATIVE DEFENSES, AND | DEMAND FOR TRIAL BY JURY " | 131. Denied. 132. Denied. 433. Denied. 434. Denied. my 435. Denied. 136. Denied. 437. Denied. 138, Denied. 139, Denied. 140. Denied. 141. Denied. . 142. Denied. 143. Denied. COUNTIII LEGAL MALPRACTICE NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS As its response to Count Ill, Defendant repeats its responses to Paragraphs 1-21 as if fully restated herein. 144, Denied. 145. Denied. 146, Denied. 447. Denied.: CASE NO, 312019CA00232 DEFENDANT'S AMENDED ANSWER TO THE COMPLAINT, AFFIRMATIVE DEFENSES, AND DEMAND FOR TRIAL BY JURY 148. Denied. 149. Denied. 150. Denied. Defendant denies each and every allegation in the Complaint which is not specifically admitted herein. AFFIRMATIVE DEFENSES Ariw nk —_—eEeeEee 4. As its First Affirmative Defense, Defendant would show unto the Court that the Plaintiff's claims are barred, in whole or in part, due to her own negligence, reckless, and/or careless conduct, as Plaintiff engaged in criminal acts subsequent to her initial arrest in October 2017 and/or acted in a manner to cause her to be arrested for criminal acts subsequent to her initial arrest. Plaintiff also failed to abide by the terms and conditions of her bond and release after her initial arrest, thereby causing her second arrest in October 2017, which also constitutes negligence, reckless, and/or careless conduct. Said negligence is a contributing and/or the sole legal proximate cause of the injuries and damages complained of and the Plaintiff, therefore, is barred from recovery against the Defendant, E. CLAYTON YATES, P.A., or in the altemative, the damages for recovery should be reduced by the Doctrine of Comparative Negligence. See Michael Kovach, P.A. v. Pearce, 427 So. 2d 1128 (Fla. 5th DCA 1983); G' Gilchrist Timber Co. v. ITT Rayonier, Inc., 696 So. 2d 334 (Fla. 1997) 2. As its Second Affirmative Defense, Defendant would show unto the Court that the Plaintiff is judicially estopped from contending that she is innocent and/or not guilty of any criminal charges discussed in this action as has previously taken inconsistent position(s) by pleading nolo contendere in the cases of State of Florida v. Leah Hubbard, 10CASE NO. 312019CA00232 DEFENDANT'S AMENDED ANSWER TO THE COMPLAINT, AFFIRMATIVE DEFENSES, AND DEMAND FOR TRIAL BY JURY Case No. 31-2017-CF-000922-AXXXXX and State of Florida v. Leah Hubbard, Case No. 31-2017-CF-001265-AXXXXX, and, was sentenced to six months.of incarceration at the county jail, community control and probation, and, therefore, Plaintiff's claims are barred as a matter of law. See Keys Co. v. Partners, Inc., 881 So, 2d 605 (Fla. 3rd DCA 2004). 3. As its Third Affirmative Defense, Defendant would show.unto the Court that the Plaintiff's claims for legal malpractice, breach of fiduciary duty, negligent misrepresentation, fraud, and negligent infliction of emotional distress, in this case are barred as a matter of law as she pleaded nolo contendere in the cases of State of Florida v, Leah Hubbard, Case No. 31-2017-CF-000922-AXXXXX and State of Florida v. Leah Hubbard, Case No. 31-2017-CF-001265- AXXXXX, and, was séntenced to six months incarceration at the county jail, community control and probation, and, as such, Plaintiff cannot establish and/or allege that she is actually innocent of the underlying crimes, and therefore, Plaintiff's claims are barred as a matter of law. Proto v. Graham, 788 So. 2d 393, 395 (Fla. 5th DCA 2011); Rowe v. Schrieber, 725 So. 2d 1245 (Fla. 4th DCA 1999). 4, As its Fourth Affirmative Defense, Defendant would show unto the Court that the Plaintiffs claims for legal malpractice are barred asa matter of law as she has failed to establish a pre-condition for the pursuit of her claims as she has not pleaded and/or proven that she obtained appellate or post-conviction of the relief of the crimes she pleaded nolo contendere to in State of Florida v. Leah Hubbard, Case No, 31-2017- State of Florida v. Lean Mpbel’ CF-000922-AXXXXX and State of Florida v. Leah Hubbard, Case No. 31-2017-CF- State _of Florida V. Leal Mie 001265-AXXXXX, and was sentenced to six months of incarceration at the county jail, community control, and probation. See Steele v. Kehoe, 747 So. 3d 931, 933 (Fla.1999). 11CASE NO. 312019CA00232 DEFENDANT'S AMENDED ANSWER TO THE COMPLAINT, AFFIRMATIVE DEFENSES, AND DEMAND FOR TRIAL BY JURY 5. As its Fifth Affirmative Defense, Defendant would show unto the Court that Plaintiff's claims are barred by the Unclean Hands Doctrine as Plaintiff herself acted with unclean hands due to her subsequent arrest in October 2017, her failure to abide by the terms and condition of her release and bond after her initial arrest in July 2017, her failure to listen to and abide by competent legal advice provided by the Defendant, and pleading nolo contendere to crimes in State of Florida v. Leah Hubbard, Case No. 31-2017-CF- 000922-AXXXXX and State of Florida v. Leah Hubbard, Case No, 31-2017-CF-001265- AXXXXX. 6. As its Sixth Affirmative Defense, Defendant would show unto the Court that Plaintiff's claims for negligent infliction of emotional distress are barred as a matter of law by the Impact Rule as the Plaintiff did not sustain or suffer from physical contact, and/or Plaintiff did not suffer from any physical manifestation of an alleged emotional injury, and as such, she is barred from recovery of non-economic damages. See LeGrande v. Emmanuel, 889 So. 2d 991 (Fla. 3d DCA 2004) 7. As its Seventh Affirmative Defense, Defendant would show unto the Court that Plaintiff is barred from recovery of any attorney's fees as she has not cited to a statutory or contractual right to assert such claims, and, no such right exists in claims for legal malpractice, fraud, negligent infliction of emotional distress, and/or negligent misrepresentation. See Martin v. Paskow, 339 So. 2d 266, 267 (Fla. 3d DCA 1976) 8. As its Eighth Affirmative Defense, Defendant would show unto the Court that Plaintiff's claims are barred, in whole or in part, due to the Doctrine of In Pari Delicto as Plaintiff kept an illegal and/or non-permitted concealed weapoh on her person and/or in her vehicle, and, therefore Defendant cannot be held liable due to any alleged advice 12fe CASE NO. 312019CA00232 DEFENDANT'S AMENDED ANSWER TO THE COMPLAINT, AFFIRMATIVE DEFENSES, AND DEMAND FOR TRIAL BY JURY to engage in or conduct such alleged illegal conduct. As such, Plaintiff's claims that the Defendant's acts or omissions caused or contributed to her second arrest in October 2017, and, any alleged injuries or damages therefrom, are barred as a matter of law. See Turner-v. Anderson, 704 So. 2d 748 (Fla. 4th DCA 1998). . 9. As its Ninth Affirmative Defense, Defendant would show unto the Court that Plaintiff's claims are barred pursuant to the Judgmental Immunity Doctrine as the Defendant acted in good faith and made a diligent inquiry into an area of law (i.e., criminal law and efforts to satisfactory plead and/or dismiss the initial and/or second arrests of Plaintiff), and, as such, the Defendant should not be held ‘liable for providing advice or taking action in such an unsettled or debatable area of law. See Meir v. Kirk, Pinkerton McClelland, Savary, & Carr, P.A., 561 So. 2d 399 (Fla. 2d DCA 1990). ; 40. Asits Tenth Affirmative Defense, Defendant would show unto the Court that Plaintiff's claims are barred as a matter of law due to the Plaintiffs subsequent / superseding, and/or intervening acts, including but not limited to her subsequent arrest in October 2017 and/or her pleas of nolo contendere in two criminal cases which occurred, in part, upon the recommendations of her subsequent attorney; and Plaintiffs lack of innocence for those criminal charges, in March and April 2018. See Frazier v. Effman, 501z So. 2d 114 (Fla. 4th DCA 1987). 44. As its Eleventh Affirmative Defense, Defendant would show unto the Court that the Plaintiff has abandoned her claims in this action by not proceeding to trial, being convicted, and/or appealing, any court rulings or pleas of nolo contendere. Defendant reserves the right to add and/or amend its Affirmative Defenses 13CASE NO. 312019CA00232 DEFENDANT'S AMENDED ANSWER TO THE COMPLAINT, AFFIRMATIVE DEFENSES, AND DEMAND FOR TRIAL BY JURY Defendant hereby demands trial by jury on all issues so triable as a matter of tight | DEMAND FOR JURY TRIAL * | \ and law. i CERTIFICATE OF SERVICE | HEREBY CERTIFY that a copy hereof has been furnished by service through the eportal to Leah M. Hubbard, 2046 79th Avenue, Vero Beach, FL 32966, leahhubbard0706@gmail.com, this 10th day of __July , 2019, CONROY SIMBERG Attorney for Defendant, E. Clayton Yates, P.A. i 1801 Centrepark Drive East, Suite 200 | West Palm Beach, FL 33401 ! Telephone: 561-697-8088 Facsimile: 561-697-8664 Primary Email: eservicewpb@conroysimberg.com Secondary Email: jrubin@conroysimberg.com By: /s/ Jeffrey K. Rubin John A. Lurvey, Esquire Florida Bar No. 570222 Jeffrey K. Rubin, Esquire Florida Bar No. 42084 14Michael Kovach, P.A. v. Pearce, 427 So.2d 1128 (1983) KeyCite Yellow Flag - Negative Treatment Declined to Follow by Gorski v. Smith, Pa.Super., October 30, 2002 427 So.2d 1128 District Court of Appeal of Florida, Fifth District. MICHAEL KOVACH, P.A., a Florida corporation, Michael Kovach, Individually, and Lawyers Professional Liability Insurance Company, Appellants, v. Robert PEARCE, as Personal Representative of the Estate of Alvada Pearce, Deceased, and Robert L. Pearce, Individually, Appellees. No. 82-192. | March 16, 1983. Synopsis Former client brought legal malpractice suit arising out of attorney's representation of him in double comparative negligence situation, The Circuit Court, Citrus County, William T. Swigert, J. returned verdict in favor of former client and against attorney and his insurer, and appeal was taken. The District Court of Appeal, Cowart, J., held that: (1) judicial action taken with respect to certain jury instruction was insufficient, and (2) it was error not to use former client's suggested special verdict form. Reversed and remanded. West Headnotes (2) (i) Attorney and Client @» Pleading and Evidence Trial @= Purpose and Effect of Evidence In legal malpractice action arising out of attorney's representation in double comparative negligence situation, accident report showing that former client had not been charged with traffic violation as a result of accident was inadmissible as evidence to comparative negligence issue but was admissible in malpractice action because it was part of attorney's file and arguably something, the use and effect of which attorney might have considered in evaluating and defending action, but necessitated a cautionary limiting instruction; although such an instruction was requested, judicial action taken was insufficient to explain to jury for what purpose jury could consider report. 3 Cases that cite this headnote [2] Attorney and Client _ Trial and Judgment In legal malpractice action arising out of attorney's representation in a double comparative negligence situation, fact that trial of malpractice action involved two separate comparative negligence issues was not reason for not applying rule requiring verdict form that apportions percentage of negligence between parties but was good reason to apply the rule severally to each of the two comparative negligence issues; thus, it was error not to use former client's suggested special verdict form. 1 Cases that cite this headnote Attorneys and Law Firms *1128 Andrew G. Pattillo, Jr, and Russell W. LaPeer of Pattillo & McKeever, P.A., Ocala, for appellants. William A. Dooley of Thorp, Reed, Conley & Dooley, Sarasota, and Charles J. Cheves of Cheves & Rapkin, Venice, for appellees. te Opinion COWART, Judge. This case involves the use of a special verdict in a malpractice suit. Appellee Pearce, while operating his mother's automobile, negligently injured one Albert Todter. Todter sued Pearce and his mother and Pearce hired appellant Kovach, an attorney, to defend the Todter-Pearce action. Under circumstances | |Michael Kovach, P.A. v. Pearce, 427 So.2d 1128 (1983) possibly attributable, at least in part, to the negligence of Kovach, a judgment was entered in favor of Todter against Pearce for $600,000. Pearce then sued Kovach and his professional liability insurer, appellant Lawyers Professional Liability Insurance Company, in this malpractice action. The jury in this case returned a verdict in favor of Pearce and against Kovach and his insurer for $717,690. This appeal is from a final judgment based on that verdict as adjusted by the court for comparative negligence. The Pearce-Kovach malpractice case involved a double comparative negligence situation, Pearce sued Kovach on the theory that Todter was either totally responsible for his own injury or that Todter was guilty of some negligence that combined with negligence of Pearce in producing Todter's injuries *1129 but that, in either event, the $600,000 judgment resulted in whole, or in large part, because of the negligence of Kovach in failing to assert, as a defense in the Todter-Pearce action, Todter's contributory (comparative) negligence and certain other matters. Accordingly it was necessary for the jury in the malpractice action to literally “re- try” the Zodter v. Pearce case to correctly determine Todter's negligence, if any, and Pearce's negligence, if any, causing Todter’s injuries and, if both were negligent, to compare their negligence, in order to determine how much of the $600,000 verdict was properly chargeable to Pearce's negligence in injuring Todter, how much was chargeable to Todter’s own negligence, and how much resulted from the alleged negligent failure to properly defend. In the malpractice action, Kovach asserted as a comparative negligence defense that Pearce was contributively negligent in the defense of the Todter action. Therefore, if the jury found that both Pearce and Kovach were negligent as to the defense of the Todter-Pearce action, it was also necessary for the jury to compare the negligence of Pearce and Kovach involved in the failure to see that the Todter-Pearce action was properly defended. This “double” comparative negligence aspect of the malpractice action caused several difficulties, two of which we discuss. [1] The first problem relates to the admissibility of one item of evidence (an accident report showing that Pearce had not been charged with a traffic violation as a result of the Todter-Pearce accident). This would have been inadmissible as evidence as to the Todter-Pearce comparative negligence issue but was admissible in the Pearce-Kovach malpractice action because the accident report was part of the file of attorney Kovach and arguably something, the use and effect of which, an attorney might properly consider and evaluate in defending the Todter-Pearce action. Since it was inadmissible for one purpose but admissible for another, it was admissible but necessitated a cautionary, limiting instruction. Such an instruction was requested but the judicial action taken was insufficient to explain to the jury for what purpose this evidence could, and for what purpose it could not, be considered. [2] The second difficulty caused by the two-in-one comparative negligence aspect of the malpractice action related to the special verdict used, The Florida Supreme Court's decision in Lawrence v. Florida East Coast Railway Co., 346 So.2d 1012 (Fla.1977), requires special verdicts in the trial of comparative negligence. Appellant submitted, and requested the use of, a special vérdict form that required the jury to show the apportionment of fault (negligence) between Pearce and Kovach relating to the negligent defense of the Todter-Pearce action and which form also required the jury to show an apportionment of negligence as between Todter and Pearce in the underlying Todter-Pearce negligence action. Over appellant's objection this verdict form was not used and instead a form prepared by appellees was used which showed only an apportionment of fault between Pearce and Kovach in the malpractice action. The trial judge was of the opinion that appellees’ proposed form did follow the Lawrence rule requiring a verdict form that apportioned the percentage of negligence between the parties in the case being tried (the Pearce-Kovach action), but did not think the rule particularly applied in this case because “we're trying almost two cases”. During deliberations the jury returned to the courtroom and asked questions that clearly indicated they were confused on this very aspect of the verdict form. The trial judge understood and explained “-there is no place on the plaintiff's verdict form for you to put-to place a percentage of any negligence in the underlying | suit, That you will calculate yourself.” However this did not solve the problem. One of the jurors later complained, “we don't have the Todter versus Pearce forms.” Further dialogue between the court and the jurors indicates that the jurors remained confused and baffled because there was no provision in the verdict form for them to apportion fault between Todter and Pearce in the underlying case. At this point, appellant's counsel again urged the use of his special verdict forms and appellee's counsel opposed saying “i's too late now” and “a special interrogatory *1130 is out of the question.” The trial court correctly instructed the jury to compare the negligence of Todter and Pearce in the underlying action but failed to provide a special verdict form that permitted that to be done. Such a verdict would have permitted appellate review of the computations apportioning Todter's damages on the basis of fault necessary to insure SLANE © 2019 Thomson Reuters. No claim to original U.S. Government Works.Michael Kovach, P.A. v. Pearce, 427 So.2d 1128 (1983) that the goal of comparative negligence was achieved and, in keeping with Lawrence, also insure that a single, but not a double, reduction in damages was made for comparative negligence. The fact that the trial of the malpractice action involved two separate comparative negligence issues was not reason for not applying the reason and rule of Lawrence but was good reason to apply the rule severally to each of the two comparative negligence issues. Thus, it was error to not use appellant's suggested special verdict form. For these reasons we reverse and remand for a new trial, In view of this disposition we do not address the other points argued in the briefs. REVERSED AND REMANDED. COBB, J., and JOHNSON, CLARENCE T,, Jr, A.J., concur. All Citations 427 So.2d 1128 End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. “IESTLANE © 2019 Thomson Reuters. No claim to original U.S. Government Works.Rowe v. Schreiber, 725 So.2d 1245 (1999) KeyCite Yellow Flag - Negative Treatment Disagreed With by Rodriguez v. Nielsen, Neb., April 21, 2000 725 So.2d 1245 Bl District Court of Appeal of Florida, Fourth District. Robert R. ROWE, Appellant, v. Alan H. SCHREIBER, Public Defender of the 17th Judicial Circuit of Florida, and Richard L. Jorandby; Public Defender of the 15th Judicial Circuit of Florida, Appellees. No. 971997 Jan. 27, 1999. 6 Synopsis After criminal defendant prevailed on his claim for postconviction relief, he filed action for legal malpractice against two public defenders. The Circuit Court, Broward County, Harry G. Hinckley, Jr., J., dismissed complaint. Defendant appealed. On grant of rehearing in part, the District Court of Appeal, Gross, J., held that: (1) limitations period on defendant’s cause of action began to run when his motion for postconviction relief was granted, and (2) to prevail on claim of legal malpractice against criminal defense attorney, criminal defendant must prove that he was innocent of underlying crime. Reversed and remanded. (ay West Headnotes (7) /_Limitatiow of Actions ¢ ~~ g=Negligence in Performance of Professional i Services { A defendant must successfully obtain post-conviction relief for the cause of action to t accrue in a case involving the legal malpractice { of a criminal defense attorney. West’s F.S.A. § 95.11(4)(a). {5} T Cases-that cite this headnote © 2019 Thomson Reu S. Government Works. Limitation of Actions ‘Attorneys Actual or constructive knowledge of the accrual of a cause of action or redressable harm is the trigger for the commencement of the statute of limitations for legal malpractice. West’s F.S.A. § 95,11(4)(@). 1 Cases that cite this headnote Attorney and Client «Elements of Malpractice or Negligence Action in General The elements of an action for legal malpractice are (1) the employment of the attorney; (2) the attorney’s neglect of a reasonable duty; and (3) that the attorney’s negligence was the proximate cause of loss to the client. 2 Cases that cite this headnote Judgment Civil or Criminal Proceedings A judicial determination in a postconviction proceeding that a defendant has received the effective assistance of counsel is binding on that defendant who brings a civil malpractice action against his criminal defense lawyer. U.S.C.A. Const.Amend. 6; West’s F.S.A. RCrP Rule 3.850, 2 Cases that cite this headnote Limitation of Actions <=Questions for JuryRowe v. Schreiber, 725 So.2d 1245 (1999) When a criminal defendant discovers or should have discovered his attorney’s malpractice, thus starting the limitations period, is a question of fact. West’s F.S.A. § 95.11(4)(a). Cases that cite this headnote ‘61 Limitation of Actions Attorneys Limitations period on criminal defendant’s cause of action against public defenders for legal malpractice began to run on date that trial court granted defendant’s motion for postconviction relief; defendant had no notice or knowledge of redressable harm until that date. West’s F.S.A. § 95.11(4)(a). 3 Cases that cite this headnote (1 ~“Attorney-and-Client ~~ (Pleading and Evidence | To prevail on a claim of legal malpractice | against a criminal defense attorney, a criminal | defendant, as part of the causation element of | the cause of action, must prove by the greater | weight of the evidence that he was innocent of | the crimes charged in the underlying criminal \ proceeding. 5 Cases that cite this headnote Attorneys and Law Firms *1246 Diane H. Tutt of Diane H. Tutt, P.A., Plantation, for appellant. Lillian Conrad of Law Offices of Lillian Conrad, Plantation, Dunn & Johnson, P.A., Miami, and Neil Rose of Bernstein & Chackman, P.A., Hollywood, for appellees. ON MOTION FOR REHEARING GROSS, J. We grant appellant’s motion for rehearing in part, withdraw our previous opinion, and substitute the following. Robert Rowe appeals an order dismissing his fifth amended complaint with prejudice. On December. 14, 1984, Rowe was convicted of several counts of capital sexual battery and was sentenced to four terms of life imprisonment. This court affirmed the conviction on April 11, 1988. See Rowe v. State, 523 So.2d 590 (Fla. 4th DCA 1988). Rowe timely moved for post-conviction relief under Florida Rule of Criminal Procedure 3.850, which the trial court denied without an evidentiary hearing. On November 20, 1991, this court reversed and remanded the case for an evidentiary hearing ™to determine the merits of the defendant’s position.” See Rowe v. State, 588 So.2d 344 (Fla. 4th DCA 1991). The grounds asserted in the motion for post-conviction relief were that numerous errors committed at trial by Rowe’s assistant public defender amounted to a violation of! the constitutional ‘right to effective assistance of counsel. On July 15, 1994, after an evidentiary hearing, the trial court granted *1247 Rowe’s motion for post-conviction relief and ordered a new trial based on the ineffective assistance of Rowe’s trial counsel. The state Molle prossed the charges against Rowe on May 15, 1995. On November 23, 1994, Rowe filed a legal malpractice suit against attorney Bradley Stark, who had represented him on the post-conviction relief matter from January 11, 1989 through March 10, 1993. In his third amended complaint, filed on December 26, 1995, Rowe added Alan Schreiber as a party. Schreiber is the Public Defender for the Seventeenth Judicial Circuit, whose office represented Rowe at his trial in 1984, Rowe alleged that Schreiber negligently managed the office and negligently supervised the assistant public defender who had malpracticed at the original trial. In his fourth amended complaint, filed on March 13, 1996, Rowe added Richard Jorandby as a party. Jorandby WESTLAW © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2Rowe v. Schreiber, 725 So.2d 1245 (1999) is the Public Defender for the Fifteenth Judicial Circuit, whose office handled the direct appeal from the 1984 conviction. Rowe alleged that his direct appeal was negligently handled based on the failure to raise the issue of ineffective assistance of trial counsel, despite the fact that “instances of [trial counsel’s] ineffective assistance were clear on the record.” See Appellant’s Initial Brief, at 3. Rowe maintained that “had the issue been raised in the initial appeal, an evidentiary hearing or new trial would have been mandated by the appellate court and that as a result of Jorandby’s negligence, [Rowe’s] release from prison and ultimate invalidation of his convictions and sentences were delayed.” Id. at 3-4. Schreiber and Jorandby filed identical motions to dismiss on the ground that the actions were barred by the two year statute of limitations contained in section 95.11(4), Florida Statutes (1997). The trial court granted the motions. We hold that the limitations period under section 95.11(4)(a), began to run when the trial court granted Rowe’s motion for post-conviction relief based on ineffective assistance of counsel. Using this date, the actions against both Schreiber and Jorandby were timely. Generally, a statute of limitations begins to run from the time a cause of action accrues. See § 95.031, Fla. Stat. (1997). A “cause of action accrues when the last element constituting the cause of action occurs.” § 95,031(1), Fla. Stat. (1997). For professional malpractice actions, the statute of limitations is two years, with the period of limitations running “from the time the cause of action is discovered or should have been discovered with the exercise of due diligence.” § 95.11(4)(a), Fla. Stat. (1997). Construing this section for professional transactional malpractice, the supreme court has written that “[g]enerally, a cause of action for negligence does not accrue until the existence of a redressable harm or injury has been established and the injured party knows or should know of either the injury or the negligent act.” Peat, Marwick, Mitchell & Co. v. Lane, 565 So.2d 1323, 1325 (Fla.1990) (citations omitted). Cases cited with approval in Peat, Marwick have interpreted section 95,11(4)(a) to mean that the event which triggers the running of the statute of limitations is notice to or knowledge by the injured party that a cause of action has accrued in his favor, and not the date on which the negligent act which caused the damages was actually committed. Edwards v. Ford, 279 So.2d 851, 853 (Fla.1973) (quoting Downing v, Vaine, 228: So0.2d 622, 625 (Fla. 1st DCA 1969)); Birnholz v. Blake, 399 So.2d 375 (Fla. 3d DCA 1981). With regard to litigation-related legal malpractice, the supreme court recently held that the two year statute of limitations begins to run when the final judgment becomes final. See Silvestrone v, Edell, 721 So.2d 1173, 23 Fla. L. Weekly S625 (Fla. 1998). Rowe argues that the “redressable harm” or accrual of the cause of action in this case *1248 arose when he was accorded post-conviction relief on July 15, 1994. Under this view, post-conviction relief under Rule 3.850 becomes an additional élement in a cause of action for legal malpractice against a criminal defense attorney, such that a cause of action cannot accrue for statute of limitations purposes until a criminal defendant obtains post-conviction relief, See Shaw v, State, Dep't of Admin., 816 P.2d 1358 (Alaska 1991). In support of his argument, Rowe cites to Steele v. Kehoe, 23 Fla. L. Weekly D771, 724 So.2d 1192 (Fla, Sth DCA 1998), rev. granted, 722 So.2d 194 (Fla. 1998), a case where a convicted criminal defendant sued his lawyer for malpractice for failing to timely file a Rule 3.850 motion on his behalf. The trial court dismissed the complaint, ruling that the 3.850 motion was “Surisdictionally barred,” since the defendant was unable to prove that he, was improperly convicted, because he had not had the underlying conviction ‘set aside, which, of course, he could not do as a result of the untimely filing of the post-conviction relief motion. Id, at D772, 724 So.2d at 1194-95. The fifth district affirmed the dismissal, while sympathizing with the Catch-22 in which the defendant was entangled. Id. Steele was primarily concerned with the narrow issue of the remedy that should be available to a defendant whose attorney neglects to file a Rule 3.850 motion within the two year time limitation of the rule. See Fla.R.Crim.P. 3.850(b). Steele was not a case where the purported malpractice involved the ineffective assistance of counsel at a criminal trial. In affirming the dismissal, the fifth district adopted the broad rule applicable to all legal malpractice in the context of a criminal case—that “exoneration is a prerequisite to a legal malpractice action arising from a criminal prosecution.” Jd. at D772, 724 S0.2d at 1193. As “logical support” for this holding, the fifth district set forth three policy reasons: WESTLAW © 2019 Thomson Reuters. No claim to original U.S, Government Works. 3Rowe v. Schreiber, 725 So.2d 1245 (1999) First, criminal procedure provides a remedy for ineffective assistance of counsel. Judicial economy will be best served if we permit the criminal court to determine the issue of ineffective assistance of counsel. If the court should determine that the attorney’s representation, even if sub-par, did not affect the result of the criminal trial then a subsequent malpractice action should not lie. Second, public policy should recognize that unless a defendant is exonerated, the proximate cause of the defendant’s conviction is his or her commission of a crime and not legal malpractice. Third, and most important, unless exoneration is accomplished, a legal malpractice action would be an inadequate remedy. Id. Judge Griffin’s dissent in Steele noted that Steele was difficult to reconcile with the first district’s decision in Martin v. Pafford, 583 So.2d 736 (Fla. 1st DCA 1991), In that case, Martin was convicted of first degree murder in 1981, The conviction was affirmed on direct appeal in 1982. On November 23, 1984, a lawyer wrote Martin that the attorney who had represented her at trial was incompetent. In 1985, Martin filed a motion for post-conviction relief alleging that her trial counsel had provided ineffective assistance of counsel. The trial court denied the motion, but the first district reversed and granted Martin a new trial based upon the ineffective assistance of the trial attorney. The first district’s decision was rendered in December, 1986 and rehearing was denied in February, 1987. ~ Martin filed a legal malpractice suit against her trial attorney in June, 1987. The trial court dismissed the case, ruling that the suit was barred by the two year statute of limitations in section 95.11(4)(a). On appeal, Martin argued that her cause of action for legal malpractice accrued at the time the first district provided her with post-conviction relief, which she characterized as part of the “appellate review of the underlying legal proceeding.” Id. at 738, The first district rejected her argument, ruling that the malpractice cause of action accrued on November 23, 1984, when the lawyer had written her about her trial lawyer’s incompetence. In reaching this result, the first district wrote: Martin’s claim of malpractice was not dependent upon appellate reversal of her conviction. Martin was not required to have succeeded in obtaining collateral relief *1249 from her criminal conviction before she could civilly sue her attorney for malpractice. If she had not even filed a postconviction proceeding, she would still have been entitled to bring her civil suit for malpractice. Id. at 738 (emphasis supplied). The Martin court reached the conclusion italicized-above without any discussion or citation to authority. Steele and Martin represent the two divergent views in cases from other jurisdictions. The views appear to be driven, at least in part, by judicial discomfort with legal malpractice cases arising from criminal proceedings. As Judge Griffin observed in her dissent in Steele: many of the cases where courts have not found exoneration to be a required element of a malpractice action are cases where the criminal defendant failed to press his claim within the specified period of limitation after the commission of malpractice.... Conversely, in cases where the claim has been filed timely, courts often conclude that no claim can exist. until the defendant has been exonerated. Id. at D775, 724 So.2d at 1199. Wl We believe that. the correct rule under section 95.11(4)(a), is that a defendant must successfully obtain post-conviction relief for the cause of action to accrue ina case involving the legal malpractice of a criminal defense attorney. Such a requirement screens the case through time sensitive and established pathways of the rules of criminal procedure; the complexity of multiple ongoing actions in civil and criminal court is avoided. This requirement better implements the public policy of “LAW ©2019 Thomson Reuters. No claim to original U.S. Government Works. 4Rowe v. Schreiber, 725 So.2d 1245 (1999) Florida and creates a bright line rule in the criminal area similar to that established by the supreme court in Silvestrone. Many of the cases from other jurisdictions reaching a different result are distinguishable, because of the wording of their statute of limitations or the differences in their rules of criminal procedure. 121 81 Under Florida law, actual or constructive knowledge of the accrual of a cause of action or redressable harm is the trigger for the commencement of the statute of limitations for legal malpractice. See Peat, Marwick, 565 So.2d at 1325; Edwards, 279 So.2d at 853, The elements of an action for legal malpractice are (1) the employment of the attorney; (2) the attorney’s neglect of a reasonable duty; and (3) that the attorney’s negligence was the proximate cause of loss to the client. See, e.g., Lenahan v. Russell L. Forkey, P.A., 702 So.2d 610, 611 (Fla. 4th DCA 1997), Success in a post-conviction relief motion pertains to the “proximate cause of loss” element of the tort. Shaw, 816 P.2d at 1361. In this context, causation of “loss” involves something more than the fact that a malpractice plaintiff “has been convicted when he or she should not have been.” Stevens v. Bispham, 316 Or. 221, 851 P.2d 556, 560 (1993). Rather, in the legal sense, the determination of a “loss” involves a policy decision as to what “collection of facts ... the law is prepared to recognize as constituting” that element of a claim for legal malpractice. Id. As the New York Court of Appeals has observed, criminal prosecutions are unique legal proceedings: This is so because criminal prosecutions involve constitutional and procedural safeguards designed to maintain the integrity of the judicial system and to protect criminal defendants from overreaching governmental actions. These aspects of criminal proceedings make criminal malpractice cases unique, and policy considerations require different pleading and substantive rules. Carmel v. Lunney, 70 N.Y.2d 169, 518 N.Y.S.2d 605, S11 N.E.2d 1126, 1128 (1987). It is the public policy of Florida to treat a conviction of any criminal offense as a final determination of guilt, unless and until the conviction has been reversed, whether on appeal or through post-conviction relief. See §§ 924.051, 924.055, 924.06(3), Fla. Stat. (1997). The requirement of a successful challenge to a conviction on direct appeal or through post-conviction relief implements the legislative policy of finality and coordinates with the remedies provided by the rules of criminal procedure. We agree with the policy reasons articulated in Steele in support of this requirement. *1250 || Significantly, the Florida Supreme Court has recognized that the standards for “ ‘ineffective assistance of counsel in criminal proceedings and for legal malpractice in: civil proceedings are equivalent for the purposes of application of the doctrine of collateral estoppel.” ” Zeidwig v. Ward, 548 So.2d 209, 214 (Fla.1989) (quoting Knoblauch v. Kenyon, 163 Mich.App. 712, 415 N.W.2d 286, 289 (1987)); see also McCord v. Bailey, 636 F.2d 606 (D.€.Cir.1980). Thus, a judicial determination in a Rule 3.850 proceeding that a defendant has received the effective assistance of counsel is binding on that defendant who brings a civil malpractice action against his criminal defense lawyer. In support of its holding, the supreme court focused on the anomaly of allowing a defendant who ha[d] failed in attacking his conviction on grounds of ineffective assistance of counsel ... to collect from his counsel damages in a civil suit for ineffective representation because he was improperly imprisoned. Zeidwig, 548 So.2d at 214. Zeidwig also referenced a public policy rationale behind its holding— that it would “undermine the effective administration of the judicial system to ignore completely a prior decision of a court ... on the same issue which” a plaintiff seeks to relitigate in a subsequent civil action. Jd. (citation omitted). Where the standard for, ineffective assistance is identical to that of legal malpractice, it is not appropriate to treat victims of the alleged negligence as having suffered a loss caused by their attorney, unless they have demonstrated that their counsel failed to meet the established constitutional standards in a way that would justify post-conviction relief. See Stevens, 851 P.2d at 562. The policy identified in Zeidwig is equally applicable to this “FLW © 2019 Thomson Reuters. No claim lo original U.S. Government Works. 5Rowe v. Schreiber, 725 So.2d 1245 (1999) case; it is “illogical? and “unreasonable” to allow a convicted or imprisoned defendant to collect damages from his attorney, while the defendant remains under the disability of the conviction or imprisonment caused by the supposed malpractice. The finality of the criminal conviction would be undermined where a conviction remained valid for all purposes, but a defendant would nonetheless be able to pursue compensation through the civil courts, For these reasons, we agree with those courts that have required criminal defendants to obtain post-conviction relief or to set aside their convictions on appeal before pursuing an action for legal malpractice against their defense attorneys. See Shaw, 816 P.2d at 1360; Morgano y. Smith, 110 Nev. 1025, 879 P.2d 735, 737 (1994); Carmel, 518 N.Y.S.2d 605, 511 N.E.2d at 1128; Stevens, 851 P.2d at 566; Peeler v. Hughes & Luce, 909 S.W.2d 494, 497-98 (Tex.1995). Since success in a post-conviction relief proceeding is a necessary precondition to the legal malpractice action, the cause of action in this case cannot have accrued until Rowe obtained post-conviction relief. This application of the statute of limitations does not do violence to the rationale behind the statute, which is that to allow stale, antiquated claims would place a defendant at a “grave disadvantage” as a result of “tattered or faded memories, misplaced or discarded records, and missing or deceased witnesses.” See Nardone v. Reynolds,