BANKERS TRUST REALTY, INC., APPELLANT,
v.
ALAN KLUGER, HOWARD DUBOSAR AND KLUGER, PERETZ, KAPLAN & BERLIN, P.A., APPELLEES

Fla. 3d DCA | 1996-05-08
No. 95-425
Before BARKDULL, LEVY and GODERICH, JJ.
672 So. 2d 897 Florida District Court of Appeal, Third District (1996) Positive Treatment
Also reported at: 1996 WL 228979
Cited by 3 cases

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Synopsis

Bankers Trust Realty appealed the dismissal of its third amended complaint against attorneys Kluger, Dubosar, and their law firm for legal malpractice, equitable accounting, and breach of fiduciary duty. The court affirmed the dismissal, finding the complaint failed to allege sufficient facts and lacked causal connection between alleged wrongs and damages.


Holding

The court held that the complaint failed to state causes of action for legal malpractice, equitable accounting, and breach of fiduciary duty because it did not allege specific ultimate facts, lacked causal connection between the alleged acts and damages, and failed to demonstrate the complexity or inadequacy of legal remedies necessary for equitable accounting.


Headnotes

[1] A complaint for legal malpractice must allege specific ultimate facts demonstrating negligence and a causal connection between the alleged acts and the damages suffered.

[2] A claim for equitable accounting requires allegations that the accounts between litigants are extensive or complicated and that a legal remedy is not as full, adequate, o…

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Key Quotes

“The allegation that [an attorney] 'failed to timely act' is an insufficient legal conclusion, and not an ultimate fact that will not support a cause of action for legal malpractice”

Establishes that conclusory allegations of attorney negligence without specific facts are insufficient to state a legal malpractice claim

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Facts & Procedural History

Bankers Trust Realty filed a complaint against attorneys Alan Kluger and Howard Dubosar and their law firm, alleging negligent and tardy conduct in ha…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

The defendant, Bankers Trust Realty, Inc., appeals from an adverse final order dismissing with prejudice, for failure to state a cause of action, its third amended complaint against the attorneys Alan Kluger and Howard Dubosar and their law firm, Kluger, Per-etz, Kaplan & Berlin, P.A. We affirm.

First, the defendant’s complaint fails to allege sufficient ultimate facts to state a cause of action for legal malpractice. The complaint does not state any of the specifics of the alleged malpractice; rather, it merely states the insufficient legal conclusion that the attorneys “negligently, carelessly, unskillfully and tardily conducted the ... action and delayed obtaining a judgment therein. ...” Rios v. McDermott, Will & Emery, 613 So. 2d 544, 545 (Fla. 3d DCA 1993) (holding that “[t]he allegation that [an attorney] ‘failed to timely act’ is an insufficient legal conclusion, and not an ultimate fact” that will not support a cause of action for legal malpractice). Additionally, there are no facts alleged that support a causal connection between the alleged acts that the attorneys committed and the alleged damages suffered by the defendant. Therefore, as to this count, the trial court properly dismissed it with prejudice.

Second, the trial court did not abuse its discretion by dismissing defendant’s claim for an equitable accounting with prejudice. To state a claim for an equitable accounting, the plaintiff must allege that “the contract demands between litigants involve extensive or complicated accounts and it is not clear that the remedy at law is as full, adequate and expeditious as it is in equity.” F.A. Chastain Constr., Inc. v. Pratt, 146 So. 2d 910, 913 (Fla. 3d DCA 1962). In the instant case, the evidentiary facts alleged in the complaint show neither complexity nor the inadequacy of a legal remedy. The relationship between the parties lasted at most thirteen months and involves a dispute of at most $14,000. Chiron v. Isram Wholesale Tours and Travel Ltd., 519 So. 2d 1102, 1103 (Fla. 3d DCA 1988) (holding that a complaint, alleging an “uncomplicated oral agreement for short term employment, the terms for compensation, and a breach of the agreement[,] ... [does] not warrant an action for an accounting”). Therefore, as to this count, the trial court properly dismissed it with prejudice.

Lastly, the trial court properly dismissed the defendant’s claim for breach of fiduciary duty with prejudice where it faded to allege sufficient ultimate facts to state a cause of action. In the instant case, although the defendant compiled a list of alleged breaches, there are no allegations as to what injury the defendant sustained as a result of those alleged breaches, nor how the injury is causally related to the alleged breaches. Dillard, Smith Constr. Co. v. Greene, 337 So. 2d 841, 843 (Fla. 1st DCA 1976) (holding that a client’s allegation that attorney had neglected to keep client informed, without more, lacks specificity as well as a causative relationship to client’s alleged loss and is insufficient to state cause of action for legal malpractice).

We affirm.


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