Shear v. Hornsby & Whisenand, P.A.

603 So. 2d 129, 1992 Fla. App. LEXIS 8561, 1992 WL 191591

• Court: District Court of Appeal of Florida
• Decided: August 11, 1992
• Docket: No. 91-2363
• Status: Published

Opinion

PER CURIAM.

Gary Shear appeals from a final summary judgment in an action for legal malpractice. For the following reasons, we reverse.

Shear, a general contractor, hired Horns-by & Whisenand to represent him in a contract dispute with a former client.¹ The law firm filed suit for Shear, seeking to foreclose a mechanic’s lien, and, in the alternative, seeking an equitable lien and damages under a quantum meruit theory. The trial court ultimately denied Shear recovery upon a finding that no contract existed between the parties. Because Shear had not prevailed on the mechanic’s lien claim, the trial court ordered Shear to pay the defendant attorney’s fees of $36,067.02 pursuant to section 713.29, Florida Statutes (1989).

Shear then sued the law firm, alleging, inter alia, that the firm had negligently advised him to file a claim to foreclose a mechanic’s lien and had not informed him of his potential liability for attorney’s fees should that claim prove unsuccessful.

The record is not sufficiently developed to support the granting of summary judgment as genuine issues of material fact remain regarding whether the client was properly advised of his possible exposure to an award of statutory attorney’s fees. Accordingly, we reverse and remand for further proceedings.

Reversed and remanded for further proceedings.

1 . The action against the firm has been stayed because the firm filed for dissolution. This appeal concerns the liability of the individual attorney who represented Shear.