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Maillard v. Dowdell - 528 So. 2d 512 (Fla. Dist. Ct. App. 1988)

Rule:

In any legal malpractice suit the plaintiff is required to prove (1) the attorney's employment; (2) the attorney's neglect of a reasonable duty; and (3) that such negligence resulted in and was the proximate cause of loss to the plaintiff. In establishing the first element, the attorney's employment, it is not sufficient merely to assert an attorney-client relationship existed between the parties; it is essential to allege the relationship existed with respect to the acts or omissions upon which the malpractice claim is based.

Fla. Stat. ch. 718.111(1)(a) (1985) states that the officers and directors of the association have a fiduciary relationship to the unit owners.

Facts:

Plaintiffs, Eugene Maillard and Patricia Lynch, upon learning the condominium unit they had recently purchased contained serious structural defects, they filed a complaint for violations of Fla. Stat. ch. 718.111(1)(a) (1985) and for legal malpractice against numerous defendants, including Bonefish Towers Condominium Association and Thomas J. Dowdell, the attorney who represented the plaintiffs in purchasing the condominium unit. The trial court entered orders of dismissal in favor of defendants Bonefish Condominium and Dowdell for failure to state a cause of action. Plaintiffs appealed.

Issue:

Did the trial court properly grant the motion to dismiss?

Answer:

Yes

Conclusion:

The court ruled that the count alleging that Dowdell failed to discover the construction defects and the nature of pending litigation was properly dismissed for failure to state a claim. The duties of an attorney employed to represent the prospective buyers of real estate did not include investigating litigation or inquiring into the structural soundness of the building. Generally, the duties of an attorney employed to represent the buyer in a real estate transaction are to investigate the title to real estate, to make a painstaking examination of the records and to report all facts relating to the title, to give an opinion on the marketability of the title to the property, and to handle the real estate closing. Plaintiffs failed to state a claim against the condominium association because the duty owed by a condominium association to unit owners under Fla. Stat. § 718.111 did not extend to prospective purchasers.

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