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Haisfield v. Fleming, Haile & Shaw, P.A. - 819 So. 2d 182 (Fla. Dist. Ct. App. 2002)


Before an attorney claiming the defense of judgmental immunity to a legal malpractice action may prevail, the attorney must show that: (1) the legal authority supporting the asserted cause of action was fairly debatable or unsettled; and (2) that she or he acted in good faith and made a diligent inquiry into the unsettled area of law. An unsettled issue of law is one that has not yet been determined by the Supreme Court of Florida and on which reasonable doubt may be entertained by well-reasoned lawyers.


Haisfield entered into a deposit receipt contract to purchase commercial real property from Peabey, with a deposit of $300,000. The contract contained an "exclusive remedy" clause, which provided that, in the event that the purchaser, Haisfield, determined any representations contained in the contract to be untrue prior to the closing, Haisfield's only remedy would be "to terminate this Agreement and to receive a refund of the Deposit." The law firm Fleming, Haile & Shaw, P.A. (FH&S) represented Haisfield in that transaction. Prior to closing, Haisfield learned of an alleged misrepresentation by Peabey. When confronted with Haisfield's discovery, Peabey offered to refund his deposit. Haisfield declined this offer and insisted upon obtaining the property at a reduced price. Haisfield's attorney, Robert Haile, was instructed to explore "every available avenue of redress" for purposes of effectuating this goal. FH&S communicated, orally and in writing, possible approaches Haisfield could take in furtherance of his goal. It explained Haisfield's options as well as difficulties of each approach. Haisfield sued Peabey. FH&S brought in Squire, Sanders & Dempsey (SS&D) to handle the litigation. Unfortunately, they did not win the case. When FH&S filed suit against Haisfield for payment of attorney's fees, Haisfield filed a third party complaint against SS&D for legal malpractice. In granting SS&D's motion for summary judgment based on the doctrine of judgmental immunity and denying Haisfield's summary judgment motion, the trial court was persuaded by the fact that SS&D did not assure Haisfield that the theories on which they were bringing the action were winners and that Haisfield was warned of the risks associated with pursuing litigation. The trial judge noted that Florida law did not specifically prohibit an action for specific performance with abatement of the purchase price under facts as in this case and, therefore, seeking that equitable remedy was not contrary to settled law. Haisfield appealed.


Was summary judgment in favor of the law firm proper?




The Court affirmed the summary judgment in favor of SS&D based on the defense of "judgmental immunity." The Court reiterated that an attorney was not liable for malpractice simply for losing a case. The client's contention that he was not sufficiently instructed on the law was not a genuine issue of material fact as the only issues before the trial court were whether, as pled, the client had been informed of the exclusive nature of the purchase and sale agreement provision in the contract of sale and whether the law firm was entitled to judgmental immunity. Viewing the facts in the light most favorable to the client, it was fairly debatable as to whether a court would apply the remedy of specific performance with abatement to cover the facts of the client's case.

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