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Lane v. Cold - 882 So. 2d 436 (Fla. Dist. Ct. App. 2004)


Where a movant for summary judgment offers sufficient evidence to support her claim of the nonexistence of a genuine issue of material fact, the opposing party must demonstrate the existence of an issue or issues either by countervailing facts or justifiable inferences from the facts presented.


Defendant Kathleen Holbrook Cold, an attorney, prepared the necessary documents for the incorporation of a business with plaintiff Gary Lane and Lane's now-deceased brother as sole shareholders. Lane later filed a legal malpractice action in Florida state court against Cold based upon Cold's alleged failure to prepare a buy-sell agreement when she incorporated the business to assure a plan of succession for the corporation in the event of the death of one of the brothers. Cold filed a motion for summary judgment, which the trial court granted. Lane appealed, arguing that summary judgment was improper because genuine issues of material fact were in dispute as to whether Cold was negligent in failing to prepare a buy-sell agreement.


Did the trial court properly grant Cold summary judgment in Lane's legal malpractice action?




The judgment of the trial court was affirmed. The appellate court found that the undisputed facts established that at the time of the incorporation of the business, Cold inquired of Lane as to whether he wished her to prepare a buy-sell agreement, and that no one requested her to prepare a buy-sell agreement relating to the new corporation. Lane presented no evidence that Cold was retained to prepare a buy-sell agreement or that she otherwise agreed, expressly or implicitly, to undertake that responsibility. Thus, the court found that there was no genuine issue of material fact as to whether Cold was retained to prepare such an agreement.

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