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01-0159 JLF ENTERPRISES V. MALINSKI
State: Florida
Court: Florida Third District Court
Docket No: 01-0159 JLF ENTERPRISES V. MALINSKI
Case Date: 11/21/2001
Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.

IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 2001

JLF ENTERPRISES, INC., JOSEPH L. FRIEDES and MONICA FRIEDES, ** Appellants, ** vs. ** NORMAN MALINSKI, ESQ., and NORMAN MALINSKI, P.A., ** Appellees. **

**

CASE NO. 3D01-159 LOWER TRIBUNAL NO. 00-5401

Opinion filed November 21, 2001. An appeal from the Circuit Court for Miami-Dade County, Ronald Friedman, Judge.

Cohen, Chase, Hoffman & Schimmel, P.A. and Robert M. Sondak, for appellants. Norman Malinski, for appellees.

Before COPE, GREEN, and SHEVIN, JJ.

PER CURIAM.

This is an appeal from an order granting final summary judgment in favor of the defendants, Norman Malinski, Esq. and Norman Malinski, P.A. (collectively referred to as "Malinski") in a legal malpractice suit. affirm in part, reverse in For the reasons that follow, we part and remand for further

proceedings. JLF Enterprises, Inc. ("JLF"), a Florida corporation, and Joseph L. Friedes and Monica Friedes, individually, sued

Malinski for legal malpractice and breach of fiduciary duty arising from Malinski's representation of JLF in a construction defect case. In that case, the Phillips, individually and as

representatives of a class of homeowners, sued JLF and the other partners of a general partnership known as The Preserve at Chapel Trail ("The Preserve"), for defects in the construction of their home. and The Friedes of were the sole shareholders, The

directors

officers

JLF.

Malinski

represented

Preserve as well as its general partners.

Following a two-week

trial, the jury returned a verdict for the plaintiffs in the amount of $494,000. The court entered a final money judgment in

that amount against JLF and the Friedes, jointly and severally. The Fourth District Court of Appeal affirmed the judgment

without opinion.

See The Preserve at Chapel Trail v. Phillips,

731 So. 2d 675 (Fla. 4th DCA 1999).

2

Following the Fourth District's affirmance, the Phillips plaintiffs instituted supplementary proceedings pursuant to

section 56.229, Florida Statutes (1999), against the Friedes personally and sued to set aside the transfers of assets and/or profits that JLF gave to the Friedes during the pendency of the construction defect case. Subsequently, JLF and the Friedes

settled for $75,000 and an assignment to the Phillips plaintiffs of a portion of the proceeds of any recovery that JLF and the Friedes received from a legal malpractice suit against Malinski. Following the settlement, JLF and the Friedes filed this suit. Malinski answered the malpractice claims, and raised several affirmative defenses. He then moved for summary judgment

asserting, among other things, that there was no attorney client relationship between Malinski and JLF, or Malinski and the Friedes. bases." On appeal, JLF and the Friedes claim that summary judgment was improper because their claims were never negated, refuted or disproved. client Malinski counters by again arguing that no attorneyexisted between JLF, the Friedes and The trial court granted summary judgment "on all

relationship

himself.

Malinski also argues that the assignment of proceeds

was champertous. The record shows that in the original Phillips case,

3

Malinski

entered

an

appearance

on

behalf

of

all

of

the

defendants, including the general partnership and the individual partners named in the complaint. pleadings solely on JLF's behalf. Malinski, however, filed Thus, it is clear that It is Friedes

Malinski represented JLF and the general partnership.1 equally clear that Malinski did not represent the

individually in the Phillips case.

Accordingly, there was not

an attorney-client relationship upon which the Friedes' claims can stand. See McCarty v. Browning, 26 Fla. L. Weekly D2194

(Fla. 3d DCA Sept. 12, 2001). Finally, we find no merit to Malinski's claims that the assignment of proceeds was champertous or impermissibly assigned to third parties. We, therefore, reverse the final summary

judgment to the extent that it found otherwise. The final summary judgment is affirmed as to the individual claims of the Friedes, but reversed as to JLF and remanded for further proceedings. Affirmed in part. Reversed in part.

Malinski's reliance on Chaiken v. Lewis, 754 So. 2d 119 (Fla. 3d DCA 2000), is misplaced. Chaiken was a transactional case that has no application to the facts presented here. 4

1

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