DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
TIMOTHY D. MURPHY,
Appellant,
v.
JOHN J. PANKAUSKI, ALLISON R. SABOCIK, and
PANKAUSKI LAW FIRM, PLLC,
Appellees.
No. 4D17-1935
[February 22, 2023]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Richard L. Oftedal, Judge; L.T. Case No. 502014CA005344.
Timothy D. Murphy, Riverside, California, pro se.
William M. Martin of Peterson Bernard, Fort Lauderdale, for appellees.
KLINGENSMITH, C.J.
Appellant Timothy Murphy timely appeals the trial court’s order
dismissing his third amended complaint with prejudice against John J.
Pankauski, Allison R. Sabocik, and Pankauski Law Firm, PLLC (collectively
“appellees”), for failing to state a cause of action. Although we affirm the
court’s dismissal of counts one, two, three, four, and six as stated in the
complaint, we reverse the dismissal of count five and remand for further
proceedings.
Appellant hired appellees to represent him in a dispute relating to
trusts created by each of his parents. Appellees later withdrew from the
case and ceased representing appellant on all matters. Appellant filed suit
alleging five counts of legal malpractice and one count of unjust
enrichment. After appellant twice attempted to amend his complaint,
appellees moved to dismiss the third amended complaint with prejudice
by arguing that a legal malpractice action does not exist where an attorney
withdraws from representation prior to the expiration of the statute of
limitations on the claims asserted, and that appellant did not allege any
applicable statute of limitations had expired. Further, appellees argued
appellant’s alleged damages were simply litigation expenses that would
have been incurred regardless of any alleged negligence, and that the third
amended complaint did not contain any allegations that appellees
continued to charge appellant after they withdrew from representation.
The trial court found the third amended complaint to be “largely
identical to prior complaints found to be defective and deficient,” only
adding new allegations related to additional litigation costs incurred by
appellant. The court agreed with appellees that litigation expenses are not
considered damages, found it relevant that “at least two of the [appellant’s]
underlying cases” were still pending at the time of the order, and noted
appellant’s claims for negligence were not supported by any legal
authority. The trial court dismissed the complaint in its entirety and
ordered “that any further amendments would be futile and would only
succeed in subjecting [appellees] to further unnecessary costs and
expenses, as well taxing [the] court’s limited judicial resources.”
The standard of review of a motion to dismiss is de novo. Bell v. Indian
River Mem’l Hosp.,
778 So. 2d 1030, 1032 (Fla. 4th DCA 2001); see also
PNC Bank, Nat’l Ass’n v. Inlet Vill. Condo. Ass’n, Inc.,
204 So. 3d 97, 99
(Fla. 4th DCA 2016) (“The standard of review of . . . an order dismissing a
complaint with prejudice . . . is de novo.”). “When considering a motion to
dismiss, trial courts are not permitted to ‘go beyond the four corners of the
complaint in considering the legal sufficiency of the allegations.’” PNC
Bank,
204 So. 3d at 99 (quoting Barbado v. Green & Murphy, P.A.,
758 So.
2d 1173, 1174 (Fla. 4th DCA 2000)). “In assessing the adequacy of the
pleading of a claim, the court must accept the facts alleged therein as true
and all inferences that reasonably can be drawn from those facts must be
drawn in favor of the pleader.” MEBA Med. & Benefits Plan v. Lago,
867
So. 2d 1184, 1186 (Fla. 4th DCA 2004).
We first find no error in the trial court dismissing counts one through
four of the third amended complaint. Appellant did not allege damages in
those counts that were sufficient to establish a cause of action for legal
malpractice. Throneburg v. Boose, Casey, Ciklin, Lubitz, Martens, McBane
& O’Connell, P.A.,
659 So. 2d 1134, 1136 (Fla. 4th DCA 1995). In counts
one through four, appellant’s claimed damages were based on additional
costs incurred due to appellees’ alleged negligence, specifically legal fees
that appellant would have nonetheless incurred. The complaint does not
allege any damages incurred but for appellees’ breach. Rather, the
complaint alleges the withdrawal of representation only caused appellant
to litigate the matters himself without alleging any additional unnecessary
expenditures incurred due to appellees’ actions. If a client fails to
sufficiently allege in a malpractice claim that he or she would not have
suffered harm “but for” the attorney’s negligence, no cause of action will
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lie. See Oteiza v. Braxton,
547 So. 2d 948, 949 (Fla. 3d DCA 1989) (a party
must show that they would have been successful in their case “but for the
attorney’s negligence”); see also KJB Vill. Prop., LLC v. Craig M. Dorne, P.A.,
77 So. 3d 727, 730 (Fla. 3d DCA 2011) (quoting Oteiza,
547 So. 2d at 949).
Additionally, these four counts allege only that appellees were negligent
in several different areas and did not state with any specificity how their
actions caused compensable harm to appellant. In other words, the
complaint “does not state what appellees may have done wrong . . . and
does not illuminate any specifics of the alleged malpractice.” Rios v.
McDermott, Will & Emery,
613 So. 2d 544, 545 (Fla. 3d DCA 1993)
(dismissing a fifth amended complaint and noting a complaint must “plead
more than the naked legal conclusion that the defendant was negligent”)
(quoting Arky, Freed, Stearns, Watson, Greer, Weaver & Harris v. Bowmar
Instrument Corp.,
527 So. 2d 211, 212 (Fla. 3d DCA 1987), disapproved of
on other grounds,
537 So. 2d 561 (Fla. 1988)); see also K.R. Exch. Servs.,
Inc. v. Fuerst, Humphrey, Ittleman, PL,
48 So. 3d 889, 892–93 (Fla. 3d DCA
2010).
Although the trial court did not err in dismissing the complaint as it
relates to counts one through four, we do find it erred in dismissing count
five. Count five alleges appellees filed a defective motion to enjoin a sale
of trust property that caused appellant damages in the amount of at least
$500,000.00. Unlike counts one through four, count five does sufficiently
allege a cause of action for legal malpractice in two ways. First, count five
pleads definitive damages—the loss of property that was sold at auction—
which appellant allegedly suffered as a proximate result of appellees’ work
and, thus, was sufficient to survive a motion to dismiss. See Miller v.
Finizio & Finizio, P.A.,
226 So. 3d 979, 982–83 (Fla. 4th DCA 2017); KJB
Vill. Prop.,
77 So. 3d at 730. Second, count five pleads specific facts
detailing how appellees’ actions allegedly were the result of appellant’s
loss. See Rios,
613 So. 2d at 545. Unlike the first four counts, count five
sufficiently pleads how appellant was harmed because of appellees’ alleged
breach, namely, failing to enjoin the sale of property at auction which
appellant may have had a right to possess. See id.; Miller,
226 So. 3d at
982. Therefore, the trial court erred in dismissing count five. See
id.
Finally, the court did not err in dismissing count six of the third
amended complaint because the complaint does not allege sufficient facts
to establish a claim of unjust enrichment. To support a claim of unjust
enrichment, a complaint must allege: “(1) plaintiff has conferred a benefit
on the defendant, who has knowledge thereof; (2) defendant voluntarily
accepts and retains the benefit conferred; and (3) the circumstances are
such that it would be inequitable for the defendant to retain the benefit
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without paying the value thereof to the plaintiff.” Swafford v. Schweitzer,
906 So. 2d 1194, 1195 (Fla. 4th DCA 2005) (quoting Hillman Constr. Corp.
v. Wainer,
636 So. 2d 576, 577 (Fla. 4th DCA 1994)).
Here, the third amended complaint does not allege sufficient facts
pertaining to the third element of unjust enrichment. This court has held
an unjust enrichment claim “cannot exist where payment has been made
for the benefit conferred.” Gene B. Glick Co., Inc. v. Sunshine Ready
Concrete Co., Inc.,
651 So. 2d 190, 190 (Fla. 4th DCA 1995); see also N.G.L.
Travel Assocs. v. Celebrity Cruises, Inc.,
764 So. 2d 672, 674–75 (Fla. 3d
DCA 2000) (quoting Glick,
651 So. 2d at 190). While the complaint asserts
that appellees received payment after withdrawing from the case, it does
not state whether appellees were unjustly enriched by the late payment,
or whether the received fees were earned or unearned. Instead, the
complaint admits the charges were incurred “to obtain any order
permitting [appellees] to withdraw” and to provide appellant copies of his
files. Without any allegations to the contrary, or any supporting exhibits
attached to the pleading, the third amended complaint avers that appellees
charged for services other than those relating to its termination and
withdrawal of representation but did not allege how appellees were
unjustly enriched by charging for these services provided. See
id. Despite
appellant’s claims that the charges were “unjustified and valueless,” the
complaint does not allege that appellees charged appellant for work
performed outside of the scope of their termination of representation.
Therefore, dismissal of this count was proper.
We affirm the dismissal of counts one, two, three, four and six with
prejudice, and remand for further proceedings as to count five of
appellant’s third amended complaint. We affirm all other issues raised
without comment.
Affirmed in part, reversed in part and remanded.
GERBER and ARTAU, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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