Professional Negligence Law Reporter

A Florida appellate court held that a granddaughter properly stated a cause of action against an attorney whose alleged failure to prepare a deed conveying a client’s property to her trust deprived the granddaughter of her intended legacy.

Erica Ellerson sued attorney Brenden Moriarty for legal malpractice, alleging his failure to prepare a deed conveying her grandmother’s property to a trust resulted in an unfunded devise and deprived Ellerson of her right to take ownership of the property after the grandmother’s death. The plaintiff asserted that she was a third-party beneficiary of the attorney-client relationship between Moriarty and her grandmother. The trial court dismissed the plaintiff’s lawsuit based on a lack of standing.

Reversing, the appellate court found that although a plaintiff must ordinarily allege and prove privity with an attorney sued for legal malpractice, state courts have allowed intended testamentary beneficiaries under certain circumstances to maintain malpractice actions against attorneys. Citing case law, the court said that where a plaintiff and attorney are not in privity, the plaintiff must be an intended third-party beneficiary of the attorney’s services. Moreover, the court found, intended third-party beneficiaries of testamentary documents may bring an action for legal malpractice where they can show that the testator’s intent as expressed in a will was frustrated by an attorney’s negligence.

The court concluded that the plaintiff’s complaint contained allegations sufficient to bring it within the intended third-party beneficiary exception to the privity requirement. The plaintiff claimed that she was an intended beneficiary of her grandmother’s trust and that her grandmother had intended that the property pass to her upon her death. The plaintiff also alleged that the defendant’s negligence in failing to draft and record a deed prevented the trust from being funded with the property. These claims, the court concluded, are sufficient to allege the plaintiff’s standing in her malpractice suit against the defendant, adding that the plaintiff’s use of extrinsic evidence to show her grandmother’s intent was permissible in that the evidence did not contradict what was expressed in the trust itself.

Consequently, the court remanded, concluding that the plaintiff still must prove that the defendant had specifically undertaken the duty that formed the basis of her allegations.

Citation: Ellerson v. Moriarty, 2021 WL 2557308 (Fla. Dist. Ct. App. June 23, 2021).

Plaintiff counsel: Eric Bradstreet, Jacksonville, Fla.