Court: District Court of Appeal of Florida; February 5, 2015; Florida; State Appellate Court
Preben Olesen appeals the trial court's summary judgment favoring Lowndes, Drosdick, Doster, Kantor, Reed P.A. (the Lowndes Firm) and its associates on his claims of legal malpractice, fraud, constructive fraud, and civil conspiracy. The court affirms the summary judgment for all counts except legal malpractice, which it reverses.
The malpractice claim stems from the Lowndes Firm's representation of Olesen in a lawsuit initiated by General Electric Capital Corporation (GECC) following ABE’s default on lease payments. Olesen, who guaranteed ABE's debts, faced a lawsuit for the remaining balance due, late charges, and a stipulated loss value for the buses leased from GECC. After Olesen's divorce, ownership of ABE transferred to his ex-wife, leading to GECC's suit against Olesen.
The Lowndes Firm, having obtained waivers from both Olesen and GECC due to potential conflicts, filed an answer asserting that Olesen's ex-wife was solely liable for the debts. GECC moved for summary judgment, which the trial court granted, leading Olesen to claim legal malpractice against the Lowndes Firm.
The trial court concluded that Olesen's guaranty precluded him from contesting the damages sought by GECC. Olesen argues this ruling is erroneous, claiming there was a factual dispute regarding the damages owed. The court agrees, noting the Lowndes Firm's failure to account for the value of returned buses, which they argue was harmless due to a post-judgment credit provided to Olesen by GECC. However, the court finds insufficient evidence in the record to establish that this alleged malpractice was harmless, as the exact credit amount remains unclear.
The court reverses the summary judgment order on the legal malpractice claim and affirms the judgment on all other counts, remanding the case for further proceedings. The court also dismisses Olesen's argument that the liquidated damage provision in the contract is an unenforceable penalty, citing precedent.
