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Eastman v. Flor-Ohio9/17/1999
upon this quoted language that the law firm relies. Such reliance is misplaced.
Neither the Peat, Marwick opinion, nor the cases cited therein, addressed the issue of whether the filing and prosecution of an appeal in a related case is a condition precedent to the subsequent filing of a legal malpractice claim based upon negligent conduct allegedly occurring in that case. As aptly observed by then Judge Pariente, " he principle of Peat, Marwick does not mean that in every case involving attorney malpractice, the dismissal or settlement of a related case, or the failure to take an appeal of the underlying lawsuit, will automatically translate into an inability to establish redressable harm." Lenahan, 702 So. 2d at 611. Accordingly, we reject the law firm's invitation to liberally expand the abandonment theory and issue such a bright line rule, deciding instead to heed the sound reasoning set forth in Sikes and Lenahan that only under narrow circumstances should a cause of action for legal malpractice be deemed abandoned based upon the voluntary dismissal of the appeal taken from a related adverse judgment.
We next must discuss whether the instant case possesses factual circumstances similar to those presented in Sikes. As noted above, the underlying class action lawsuit which precipitated the instant action for legal malpractice centered on the home owners' claim of improper notice of rent increases. We know from the only case law in existence at the time the class action suit was tried that the notice requirements contained in section 723.037(1), Florida Statutes, were to be strictly construed. See Menna v. Sun Country Homeowners Association, Inc., 604 So. 2d 897 (Fla. 2d DCA 1992). Thus, separate notice to the members of the board of directors of the homeowners' association was, as the trial court ruled, statutorily required. As a result, it appears clear that the trial court properly entered summary judgment in favor of the home owners on their claim against the park owner for damages. Therefore, had the park owner refused to settle the related case on appeal, and instead prosecuted its direct appeal of the summary judgment order to judicial Conclusion, there is no reason to believe that this court would have reversed the trial court's ruling. Accordingly, the trial court in this case properly concluded that the park owner did not abandon its right to pursue a claim of legal malpractice against the law firm by voluntarily dismissing its appeal from the adverse judgment in the class action suit because that judgment was not likely to be reversed due to a finding of judicial error relating to the alleged claim of legal malpractice.
The law firm's argument is flawed in another respect. Even if we assume arguendo that there had been a likelihood that this court would have reversed the summary judgment order entered in the class action suit, the law firm is not able to show that it was prejudiced by the ruling. This is because in this appeal the law firm failed to raise for our consideration the issue of whether the trial court properly construed section 723.037(1), and whether the statute requires strict compliance. In other words, if the trial court had erred in its ruling that strict compliance with the notice provisions of the statute were required, that alleged error could have been raised and corrected in this appeal had the issue been raised. However, the only argument made on appeal here was that the trial court erred by denying the law firm's motion for summary judgment on the abandonment theory.
Before concluding our Discussion of the abandonment theory, we comment on the serious policy reasons which militate against liberalizing the abandonment theory beyond the
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