Third District Court of Appeal
State of Florida
Opinion filed October 31, 2018.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D16-1905
Lower Tribunal No. 11-37956
________________
Lauren Nieburg and Neil Nieburg,
Appellants,
vs.
Eric W. Sulzberger, et al.,
Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Jerald Bagley,
Judge.
Broad and Cassel, and Barbara Viota-Sawisch, Adam G. Rabinowitz, and
Joseph H. Picone (Fort Lauderdale), for appellants.
DLD Lawyers, and Pete L. DeMahy, Kenneth R. Drake, and Richard N.
Conforti, for appellee, Eric W. Sulzberger d/b/a Sulzberger and Sulzberger.
Boyd Richards Parker & Colonnelli, P.L., and W. Todd Boyd and Gissell
Jorge, for appellees Neal Sandberg and Simon, Schindler & Sandberg, LLP.
Carlton Fields Jorden Burt, P.A., and Charles M. Rosenberg, Naomi Berry,
and Steven M. Blickensderfer, for appellees David Scully and Jack R. Loving, P.A.
Before LOGUE, LUCK and LINDSEY, JJ.
PER CURIAM.
Lauren and Neil Nieburg appeal the trial court’s order dismissing their first
amended complaint with prejudice. We affirm.
The Nieburgs alleged that three attorneys and two law firms committed legal
malpractice and breached fiduciary duties. Eric Sulzberger was alleged to have
been negligent in drafting the Nieburgs’ mother and stepfather’s estate and
marriage documents. Neal Sandberg and his firm were alleged to have been
negligent in reviewing and advising the Nieburgs’ mother to sign an ante-nuptial
agreement. And David Scully and his firm were alleged to have been negligent in
advising the Nieburgs’ mother about, and letting the statute of limitations lapse on,
contesting their stepfather’s estate and trust.
In general, “[a]n attorney’s liability for negligence in the performance of his
or her professional duties is limited to clients with whom the attorney shares
privity of contract.” Espinosa v. Sparber, Shevin, Shapo, Rosen & Heilbronner,
612 So. 2d 1378, 1379 (Fla. 1993). “The exception to this general rule requiring
privity of contract between the client and attorney is when the plaintiff is the
intended third-party beneficiary of the services performed by the attorney.”
Driessen v. Univ. of Miami School of Law Children & Youth Law Clinic, No.
3D18-999,
2018 WL 4608760, at *1 (Fla. 3d DCA Sept. 26, 2018). “A party is an
2
intended beneficiary only if the parties to the contract clearly express, or the
contract itself expresses, an intent to primarily and directly benefit the third party
or a class of persons to which that party claims to belong.” Dingle v. Dellinger,
134 So. 3d 484, 488 (Fla. 5th DCA 2014). “To find the requisite intent, it must be
shown that both contracting parties intended to benefit the third party; it is
insufficient to show that only one party unilaterally intended to benefit the third
party.” Hunt Ridge at Tall Pines, Inc. v. Hall,
766 So. 2d 399, 400 (Fla. 2d DCA
2000).
Based on the complaint and the underlying contracts in the record, the
attorneys and law firms did not clearly express an intent to primarily and directly
benefit the Nieburgs when they represented the Nieburgs’ mother and stepfather.
At best, the Nieburgs were incidental beneficiaries, which is insufficient. See
Dingle, 134 So. 3d at 488 (“Still, a person who is not a party to a contract may not
sue for breach of that contract where that person receives only an incidental or
consequential benefit from the contract.” (quotation omitted)).
The Nieburgs contend they should be allowed to amend their complaint, and
normally they would be able to, but the trial court had the discretion to deny leave
to amend where the “amendment would be futile.” JVN Holdings, Inc. v. Am.
Const. & Repairs, LLC,
185 So. 3d 599, 601 (Fla. 3d DCA 2016) (quotation
omitted). Here, the underlying contracts say what they say, and no amount of
3
creative pleading can get around the fact that they do not evidence an intent to
primarily and directly benefit the Nieburgs.
The trial court’s order dismissing the Nieburgs’ complaint with prejudice is
affirmed.
Affirmed.
4
