Horowitz (law firm for pyramid scheme guy) v. Laske (investor), 4th DCA Florida (2003)
Author: Bram

Cause of action: The following is a cause of action for evaluating the pleas before the court after remand from a higher court ordered the causes of action stated in the complaint and elaborated upon in a pre-trial brief.  (Wendt originally wanted indemnity from Horowitz)

Procedural History: This case comes back on remand from the FL Supreme Court to answer the question presented.  On remand the briefs were to also identify the tort involved and to state what ultimate facts pleaded in the complaint satisfied those elements, as per FL RCP 1.110(b)(2).

Count 7: contribution; count 8: indemnification; count 9: wrongful act doctrine.

Facts: (previous history) Trinh used a pyramid scheme in which he had others go out and get high interest prom notes to finance his produce business.  Trinh retained Horowitz as his attorney, who is based out of MI.  Horowitz advised everyone that these were not securities (even though in essence they were).  Those three were investigated under the Office of the Comptroller, who was told the same thing Horowitz told the suitors for investors.  Soon enough, investors sued Wendt, who in turn sued Horowitz, who was allegedly given the wrong information on the phone and in letters from MI.

Issue(s): Under FL rule of civil procedure, were the threshold determinations for Wendt's 3rd-party complaint against Horowitz satisfied in stating a cause of action, and if so, did the cause of action arise out of communications Horowitz made into Florida?

Court's Rationale/Reasoning: To state a cause of action for legal malpractice, PL must show (1) attorney's employment, (2) attorney's neglect of a reasonable duty; and (3) the attorney's negligence resulted in and was the proximate cause of loss to the client.  This liability is restricted to those parties who they have privity of contract with.  Wendt's allegation he was one of those people is a conclusory statement which does not prove a properly pleaded complaint.

The fact a person is aware of an agent doesn't make that person owed a duty to Wendt.  There was also no facts pleaded regarding the attorney's neglect of a reasonable duty.  Wendt never proved he was privy to the advice Horowitz gave Trinh or to the statements Horowitz made to state regulators.

As for the right to contribution, it is a statutory remedy meant to apportion the responsibility to pay innocent injured third parties between or among those causing the injury.  To state a claim for contribution, the claimant must allege a common liability to the injured party.  There are no ultimate facts which would show that Horowitz is liable to the investors.

As to count 9, there must be a special relationship between the parties that gives rise to the technical liability of the would-be indemnitee.  But Wendt failed to allege ultimate facts showing a special relationship between him and Horowitz that would make Wendt technically liable for wrong acts on the part of Horowitz.

Horowitz also alleges the wrongful act doctrine, which is acknowledged as not an independent action.  When DF has committed a wrong toward PL and the wrongful act has caused PL to litigate with third persons, the wrongful act doctrine permits PL to recover as an additional element of damages, their third party litigation expenses.  Since this is a claim for special damages under malpractice, and no malpractice cause of action was pleaded, count 9 is not properly plead.

Rule: FL RCP 1.11o(b)(2): "Claims for Relief. A pleading which sets forth a claim for relief, whether an original claim, counterclaim, crossclaim, or third-party claim must state a cause of action and shall contain: (2) a short and plain statement of the ultimate facts showing that the pleader is entitled to relief."

The privity requirement has been relaxed where it was the apparent intent of the client to benefit a third party.

Holding: No.  Appellee Wendt (and Laske) failed to meet the requirements for establishing a tort cause of action of malpractice, and b/c there is no cause of action established, there is no personal jurisdiction.