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Owens v. Corrigan

Florida Court of Appeals, Fourth District

June 27, 2018

LINDSAY OWENS, Appellant,
v.
KATHERINE L. CORRIGAN and KLC LAW, P.A., Appellees.

         Not final until disposition of timely filed motion for rehearing.

          Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; David A. Haimes, Judge; L.T. Case No. 062017CA007602AXXXXCE.

          Robert Garven, Coral Springs, for appellant.

          Katherine L. Corrigan of KLC Law P.A., Fort Lauderdale, for appellees.

          Taylor, J.

         The plaintiff, Lindsay Owens, appeals a final order dismissing her legal malpractice complaint on the ground that the parties entered into an agreement to arbitrate the dispute. We reverse, finding that the arbitration clause in the retainer agreement was unenforceable for violating the Rules Regulating the Florida Bar.[1]

         The plaintiff filed a three-count legal malpractice action against the defendants, Katherine Corrigan, Esq., and the law firm KLC Law, P.A., alleging that the defendants negligently represented her in a dependency case, causing her to lose custody of her children.

         The defendants moved to dismiss the complaint, asserting that the plaintiff had signed a retainer agreement requiring her to submit the dispute to binding arbitration. The retainer agreement included the following arbitration clause:

Any controversy, dispute or claim arising out of or relating to our fees, charges, performance of legal services, obligations reflected in this letter, or other aspects of our representation shall be resolved through binding arbitration in Broward County, Florida, in accordance with the Fee Arbitration Rule (Chapter 14) of the Rules Regulating the Florida Bar, and judgment on the award may be entered in any court having jurisdiction thereof. [YOU ACKNOWLEDGE THAT BY AGREEING TO ARBITRATION YOU ARE RELINQUISHING YOUR RIGHT TO BRING AN ACTION IN COURT AND TO A JURY TRIAL.]

         The plaintiff filed a response in opposition to the motion to dismiss. First, the plaintiff argued that the arbitration clause was "vague and ambiguous" because the phrase "performance of legal services" was included within a reference to fees and charges, and because the arbitration clause stated that arbitration would be in accordance with the Fee Arbitration Rule. Second, the plaintiff argued that the arbitration clause was unenforceable because the retainer agreement did not comply with the Florida Bar Rule 4-1.5(i), which prohibits lawyers from making an agreement with a client for mandatory arbitration of fee disputes without advising the client in writing that the client should consider obtaining independent legal advice.

         At the hearing on the motion to dismiss, the plaintiff's trial counsel seemed to concede (albeit incorrectly) that the fee arbitration program established in Chapter 14 of the Florida Bar Rules allowed arbitration of legal malpractice claims.[2] Relying on the plaintiff's counsel's concession, the trial court granted the motion to dismiss and reasoned: "If Chapter 14 strictly said, you know, we only arbitrate fee disputes, then I think [the plaintiff] would be right. But Chapter 14 does not just arbitrate fees, it arbitrates all grievances."

         The trial court later entered a final order of dismissal, finding that the parties "entered into an agreement to arbitrate that was not waived."

         The plaintiff moved for rehearing, pointing out for the first time that jurisdiction to arbitrate under Chapter 14 was limited to disputes over the entitlement to or amount of legal fees. Thus, the plaintiff argued that her only available forum was the Florida judicial system, and that a denial of access to that forum would be a denial of due process.

         The trial court denied the plaintiff's motion for rehearing. This appeal ensued.

         On appeal, the plaintiff argues that: (1) the trial court's order violated her right to due process by denying her a proper forum for redress of grievances; (2) the arbitration agreement is unenforceable because it violated Florida Bar Rule 4-1.5(i) by omitting the cautionary notice required under that rule; and (3) the arbitration provision was ambiguous as to whether it required arbitration of a legal malpractice claim.

         We address the plaintiff's second argument, which we find to be dispositive.

         Standard of Review

         The standard of review applicable to a trial court's conclusions regarding the construction and validity of an arbitration agreement is de novo. United HealthCare of Fla., Inc. v. Brown, 984 So.2d 583, 585 (Fla. 4th DCA 2008).

         Requirements for ...


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