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Weiss v. Leatherberry12/9/2003
This is an appeal from a summary judgment for the client in a suit against his lawyer for legal malpractice. The action was initiated according to the terms of an agreement between the client and the injured party in a previous case. We conclude that the agreement is the equivalent of an assignment of the malpractice claim. Because a legal malpractice claim is not assignable under Florida law, the purported assignment in this case is void and the action cannot be maintained in its present form. We reverse the judgment for the client and remand the case to the trial court to determine how the parties intend to proceed in the absence of the agreement.
The present controversy began at the conclusion of a previous case involving the negligent operation of a motor vehicle. Gerald Leatherberry failed to yield the right of way, and the car he was driving struck a car driven by Margaret Green. There appears to be no dispute that Leatherberry was at fault. Green sustained injuries as a result of the collision and she sued Leatherberry for damages.
Green's lawyer, James McKenzie, served a proposal for settlement on January 23, 1997, in the amount of $100,000.00. Leatherberry was represented by David Weiss, the lawyer his insurance company provided. Weiss accepted the proposal for settlement on Leatherberry's behalf and communicated the acceptance in a letter faxed to McKenzie on February 24, 1997. On the same day, McKenzie sent a letter to a lawyer in Weiss' firm revoking the proposal for settlement. The revocation letter was transmitted by United Parcel Service overnight delivery. Although McKenzie received the acceptance letter before Weiss received the revocation letter, the original of the acceptance was not filed in the court file.
After Weiss communicated the acceptance of the proposal for settlement, Leatherberry sought an opinion from another lawyer, Arthur Shimek, regarding the offer. On February 27, 1997, Shimek wrote to Weiss to inform him that he was not to accept any offer on Leatherberry's behalf without written authorization. Shimek wrote in his letter, "Mr. Leatherberry denies that he authorized you to accept the offer of judgment."
At that time, McKenzie evidently believed that Green was bound by the acceptance. McKenzie wrote a letter to the trial judge on March 3, 1997, requesting cancellation of the upcoming trial and pretrial conference. He stated in this letter that the defense attorney "has now filed an acceptance of the plaintiff's offer of judgment." He explained later that he thought the original of the acceptance had been filed in the court file.
Over the course of the next few months Shimek engaged in conversations with Weiss and McKenzie to determine whether the proposal for settlement was in Leatherberry's best interest. The parties were unsuccessful at mediation and they continued to prepare the case for trial as if the settlement might not come to fruition. As the trial date approached, the relationship between Shimek and Weiss began to deteriorate. Shimek expressed the view that Weiss was not acting in Leatherberry's best interest, which prompted Weiss to file a motion to withdraw as counsel. This motion was denied.
One week before the trial, Shimek sent a letter to Leatherberry's insurance carrier recommending that it should attempt to enforce the settlement. Weiss then filed a motion in which he contended that the proposal for settlement had been accepted and should be enforced. A hearing was held on the motion on January 16, 1998. McKenzie's partner, Daniel Soloway, argued that the proposal had not been properly accepted because the original of the acceptance was not filed in the court file on or before the thirt
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