Legal Malpractice Law Review

Legal Malpractice Law Review

Research, resources & expertise in the law governing lawyers

Category Archives: Case Within a Case

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NY: No Damages, no Cause of Action

Posted in Case Within a Case, New York
Brodeur v. Hayes, 18 A.D.3d 979, 795 N.Y.S.2d 761 (2005) NY: underlying suit on  personally guaranteed notes  Student Contributor: Alexis Trezza Facts: Defendant and his law firm represented plaintiff and his various businesses for many years. Plaintiff had personally guaranteed several notes and mortgages on a piece of property that he used for his business.… Continue Reading

US Supreme Court: Patent Based Legal Malpractice Cases Belong in State Court!

Posted in Case Within a Case, Federal
Gunn v. Minton, __ 568 U.S. ___ (February 20, 2013)  Underlying Case: Legal Malpractice based on patent law A MAJOR DEVELOPMENT  From the Syllabus of the Decision:  "No matter how the state courts resolve the hypothetical “case within a case,” the real-world result of the prior federal patent litigation will not change. Nor will allowing… Continue Reading

NY: Double Header: Case within a case, Within a Case…Plaintiff’s verdict Upheld

Posted in Case Within a Case, Duties: Investigate, Litigation, New York, Torts/Personal Injury
Christ v Law Offs. of William F. Levine & Michael B. Grossman, 72 A.D.3d 721 (2d Dep’t 2010) NY: Underlying legal malpractice suit Student contributor: Zahava Schwartz Facts: The underlying case was another legal malpractice action where the clients alleged that the lawyer did not timely bring a property damage claim from a sewer backup… Continue Reading

WA: The Expert Must Be Heard!

Posted in Case Within a Case, Expert Witnesses, Family Law, Litigation, Washington
Aubin v. Barton, 123 Wash. App. 592 (2004) WA: Underlying Divorce Action Student Contributor: Ben Doyle Facts:  Client sued  attorney for malpractice following attorney’s representation in the dissolution of marriage. Client claimed that attorney’s conduct at a settlement conference did not meet the standard of care. Client was the grantee of stock options. Attorney failed… Continue Reading

AL: Legal Malpractice in a Legal Malpractice Action?

Posted in Alabama, Case Within a Case, Labor & Employent, Proximate Cause
Dennis v. Northcutt, 923 So.2d 275 (2005). AL: #1 Underlying employment discrimination action; #2 underlying legal malpractice action regarding #1. Student Contributor: Farah Shahidpour Facts: Client retained Attorney #1 to represent him in an employment discrimination action in federal district court, however, that action was dismissed. Client subsequently retained Attorney #2 to pursue a legal… Continue Reading

NJ: Malpractice Court can Dismiss on Grounds Not Dismissed by Underlying Court

Posted in Case Within a Case, Labor & Employent, New Jersey, Proximate Cause
Beese-Munoz v. Barbone, Esq., N.J. App. Div.  (per curiam) Decided May 20, 2011). NJ Underlying Work Place Discrimination Claim Facts: In this legal malpractice case, plaintiff appeals from the order granting defendant’s summary judgment motion and dismissing her case. Plaintiff retained defendant to pursue her discrimination claims against the Lakehurst Naval Station and others. Her… Continue Reading

CT: Substantial Evidence Gets Lawyer Off the Hook

Posted in Case Within a Case, Connecticut, Land Use, Zoning, Proximate Cause, Real Estate
Viola v. O’Dell, 108 Conn. App. 760, 950 A.2d 539 (Conn. App. 2008) CT: Underlying zoning action Student Contributor: Laura Binski Facts: The client operated a landscaping business in the downtown business district zone. The client’s business involved the sale of landscaping equipment, but no retail sales occurred on site. Instead, customers would place orders… Continue Reading

MD: “Case within a Case,” the Golden Test for Proximate Cause

Posted in But for-Proximate Cause, Case Within a Case, Maryland, Proximate Cause, Substantial Factor-Proximate Cause
Suder v. Whiteford, Taylor & Peston, LLP, Court of Appeals of Maryland, April 9, 2010.  Facts:  Suder filed an action for legal malpractice against her former attorneys, alleging failure to timely file a request for a fifth extension which, ostensibly, caused her to receive approximately $270,000 less under a will than she otherwise would have.  The… Continue Reading

AL: “Blatant Error” Excused in Absence of Causation and Damages

Posted in Affidavit/Certificate of Merit, Alabama, But for-Proximate Cause, Case Within a Case, Damages, Duties: Communicate, Expert Witnesses, Substantial Factor-Proximate Cause
Guyton v. Hunt, Court of Civil Appeals of Alabama, July 23, 2010. Facts:  Guyton was convicted of sexually abusing a minor.  After his conviction, he retained Hunt to prepare and file a motion for new trial, and if that was denied, file an appeal.  Hunt’s motion for a new trial was denied, but he never advised… Continue Reading

NY: Proximate Cause? Does the Attorney’s Negligence Make a Difference in the Underlying Case?

Posted in But for-Proximate Cause, Case Within a Case, Insurance, Litigation, New York
Schorsch v. Moses & Singer LLP, 60 A.D.3D 557, 876 N.Y.S.2d 367 App. Div. 1st Dep’t 2009). NY: Underlying insurance claim Student Contributor: Nicole Milone Facts: M.R.S. Antiques was a family-owned business that sold art and antiques. The business was run by Margaret Schorsch, her brother David Schorsch, their mother Marjorie Schorsch, and two other… Continue Reading

PA: Negligence, She Wrote…(but couldn’t prove)

Posted in Case Within a Case, Labor & Employent, Pennsylvania, Proximate Cause
Brock v. Owens, 532 A2d 1168 ( PA. 1987). PA: Underlying employment discrimination case Student Contributor: Laura Binski Facts: Brock (client) was a professor at Lincoln University. She believed she was the victim of race and gender discrimination, so she hired a lawyer. She first hired Kalemjian, but he withdrew from the case. Next, the… Continue Reading

GA: Underlying Employment Discrimination: Case Within a Case

Posted in Case Within a Case, Georgia, Labor & Employent
Walker v. Burnett,  241 Ga. App. 105,526 S.E.2d 109 (1999) Underlying Action: Discrimination Action (Georgia) Student Contributor: Candice L. Deaner Facts:  Legal malpractice action against attorney who represented Plaintiff in federal employment discrimination action, in which summary judgment was entered in favor of Plaintiff’s employer. The Superior Court, granted summary judgment for Defendant attorney. Client appealed.… Continue Reading

PA: Proximate Cause = Case Within a Case

Posted in Case Within a Case, Pennsylvania, Proximate Cause, Torts/Personal Injury
Williams v. Bashman, 457 F. Supp. 322 (E.D. Pa. 1978)  PA: Underlying  tort action. Student Contributor: Colleen Gaedcke Facts: The plaintiff retained the defendant, a partner at the defendant law firm, to represent her in her personal injury case against the a homeowner and the city of Philadelphia. A year passed without any communication between… Continue Reading

NY: Case Within the Case: The Great Excuser for Lawyer Carelessness?

Posted in But for-Proximate Cause, Case Within a Case, New York, Torts/Personal Injury
Yousian v. Eisenberg, 34 A.D.3d 228 (2006) NY Underlying Medical Malpractice Action Student Contributor: Ally Shuster Facts: Plaintiff went to hospital complaining of gastrointestinal pain. Over the next few months, Plaintiff underwent a series of tests in order to diagnose his condition. He underwent a sonogram, the results of which showed that he had stones… Continue Reading

But For: Same in Transactional and Litigation Malpractice

Posted in But for-Proximate Cause, California, Case Within a Case, Commercial
Michael Viner et al. v. Charles A. Sweet et al. 30 Cal. 4th 1232 (Cal. 2003) CA Underlying corporate transaction Student Contributor: Evan Michael Hess Facts: Plaintiffs retained Defendant and his law firm for a corporate transaction. After negotiating an employment termination agreement, the Plaintiffs brought a legal malpractice suit alleging seven claims, encompassing and array… Continue Reading

Guilty Until Proven Innocent? The Suit Within a Suit Method in the Criminal Context

Posted in Case Within a Case, Criminal Law, New York
Daly v. Peace, 863 N.Y.S.2d 770, 2008 N.Y. Slip Op. 06955 (2 Dept.) NY Underlying criminal action Student Contributor: Angela Ignelzi Facts: Plaintiff brought an action against his former defense attorney for legal malpractice after, allegedly, being wrongfully convicted. The attorney made a motion to dismiss plaintiff’s complaint on the grounds that the client could not… Continue Reading