In JBJ Investment of South Fla., Inc. v. Southern Title Group, Inc. et al, the Fourth District Court of Appeal overturned a trial court’s ruling granting summary judgment in favor of the law firm defendants in a legal malpractice case based on the defendants’ improper preparation of a mortgage containing incorrect legal descriptions of properties that were to secure a loan made by the plaintiff.  The main issue in this matter was whether or not the plaintiff and law firm defendant met the “communication and consultation requirement” such that an attorney-client relationship was created. The Court overturned the trial court’s decision, based, in large part, on case law that holds that the consultation requirement may be satisfied by an agent of the client.

This case arose out of a loan from the plaintiff to a third party that was secured by a note and mortgage on various properties. The co-defendant title company claimed that it, on its own, hired the defendant law firm to prepare the note and mortgage. Plaintiff disputed the title company’s assertion and claimed that it wanted an attorney to review all of the transactional documents to make sure that there were no errors, and that they in fact relayed this message to the title company. The co-defendant title company prepared the legal descriptions of the properties that were annexed as Exhibit A to the mortgage and the defendant law firm did not review Exhibit A. The third-party borrower defaulted on the loan, which prompted plaintiff to initiate foreclosure proceedings. Only then did the plaintiff discover that the legal descriptions contained a duplicate description of one of the properties and omitted the description of the most valuable property that was to secure the note. The lower court granted the defendant’s motion for summary judgment, holding (1) that the plaintiff could not maintain that there was an attorney-client relationship based on a complete lack of communication and consultation between the plaintiff and the defendant law firm, and (2) that the defendant law firm’s responsibilities did not include preparing Exhibit A to the mortgage.

On review, the Fourth DCA held that a reasonable jury could find that an attorney-client relationship existed by virtue of the title company’s consulting with the defendant law firm in her capacity as plaintiff’s title agent and referring the law firm the legal work of preparing the note and mortgage. The Court continued that the title agent’s testimony that she never asked the defendant law firm to review the legal descriptions was insufficient to conclude that the defendant law firm did not have a duty to review the legal descriptions, and concluded that there was, at a minimum, a genuine issue of material fact over whether or not the defendant law firm neglected a reasonable duty to review the legal descriptions prepared by the title agent.