ROSLYN ZERLIN; MARTIN COHEN, AS EXECUTOR OF THE ESTATE OF LOUIS COHEN, APPELLANTS,
v.
JEAN LANSBURGH AND LEONARD LANSBURGH, AS CO-PERSONAL REPRESENTATIVES OF THE ESTATE OF MORRIS LANSBURGH, DECEASED; JEAN K. LANSBURGH, BERNARD FULLER, ERWIN J. FRIED, IVAR BLACKER, ALAN J. COHEN, JERRY WHITTELS, JOEL COHEN, HILLARD HALPRYN, SAM COHEN AND BENNETT M. LIFTER, TRUSTEE, APPELLEES
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In this malpractice action arising from the sale of a hotel lease, the court reversed an order dropping two partners (Zerlin and Cohen) as plaintiffs despite their later default on an operating agreement. The court held that their default on the operating agreement was unrelated to their original right to recover damages from attorneys who failed to properly secure the group's interests in the lease sale.
Zerlin and Cohen retained their personal right to recover damages from the attorneys for malpractice. Their default on the operating agreement and subsequent foreclosure by co-partners had no relation to their original losses caused by the attorneys' malpractice, and therefore did not extinguish their right to recover.
[1] A party's default on a subsequent agreement does not extinguish their right to recover damages for prior legal malpractice, especially when the malpractice claim arose fr…
[2] A party's personal right to recover damages for legal malpractice remains undisturbed by intervening foreclosure proceedings that do not affect the underlying basis of th…
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“On these facts, it is clear that the appellants' default on the operating agreement has no relation to the original selling group's losses sustained because of the attorneys' malpractice.”
The court's core holding that the operating agreement default could not extinguish the malpractice claim.
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Join FLexlaw to unlock all legal intelligenceJoint owners of the Eden Roc Hotel ground lease sold their interest while retaining a security interest in the lease and furniture/fixtures. The purch…
The full statement of facts, procedural history, and disposition for this case are member content.
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NESBITT, Judge.
The appellants and appellees were joint owners of the ground lease for the Eden Roc Hotel. The group sold its interest in the lease, retaining a security interest in the lease as well as the furniture and fixtures. Ultimately, the purchaser went into bankruptcy and the selling group sought to foreclose on their security interests. The trustee in bankruptcy defended upon the ground that the group failed to obtain a written pledge of the furniture and furnishings as required by the UCC. On this basis, the bankruptcy court ruled that the trustee owned all of the furniture and furnishings free and clear of any security interest. To vindicate their loss, the group instituted a malpractice suit against the attorneys who prepared the documents of sale. A judgment in the sellers’ favor was affirmed here. Cohen v. Lansburgh, 418 So. 2d 1295 (Fla. 3d DCA 1982).
After the mandate was issued, the appel-lees procured an order dropping Zerlin and Cohen as parties plaintiff in the malpractice action. The underlying basis for the ruling was as follows. After the foreclosure proceedings had been commenced, the group entered into an operating agreement wherein they would operate the hotel on behalf of the trustee during the bankruptcy proceedings. It was specifically provided that the group would advance monies for the opening and operation of the hotel. Upon the failure of Zerlin and Cohen to advance the required sums, suits were successfully maintained by the remaining members of the group to foreclose the liens of these two delinquent partners. From this judgment, the trial court in the instant case concluded that since Zerlin and Cohen were no longer partners in the Eden Roc Hotel, they were not entitled to the proceeds of the legal malpractice action. We disagree.
On these facts, it is clear that the appellants’ default on the operating agreement has no relation to the original selling group’s losses sustained because of the attorneys’ malpractice. The intervening foreclosure proceeding left Zerlin and Cohen’s personal right to recover damages undisturbed.
Consequently, we reverse the order dropping Zerlin and Cohen as parties.