Florida residents often have their estate plans prepared or revised by attorneys in other states, typically by attorneys they used while resident of the other state. When the out of state attorney allegedly commits estate planning malpractice, can you sue the out of state attorney in Florida?
A recent Florida trial court opinion, affirmed on appeal, gives a terrific primary about the jurisdictional requirements to sue a lawyer in Florida for estate planning malpractice, where the lawyer never steps foot in Florida, is not a member of the Florida bar, and has no connections in Florida. In Brock v. Conners et al, (15th Jud. Cir. 2022), aff’d without opinion at 4d2022-2094 (4th DCA 2023), an Oklahoma lawyer prepared estate planning documents for a Florida resident. The lawyer was sued for estate planning malpractice, and the lawyer, as would be expected, attempted to dismiss the case for lack of personal jurisdiction. The defendant prevailed, through the application of the rules for personal jurisdiction set forth in Florida and the United States Supreme Court.
What is the Standard for Personal Jurisdiction in Florida Over a non-Resident?
Florida has two types of personal jurisdiction, general and specific. General jurisdiction is generally defined as follows:
A person may be subject to general personal jurisdiction if he or she “engaged in substantial and not isolated activity within this state, whether such activity is wholly interstate, intrastate, or otherwise, is subject to the jurisdiction .. . whether or not the claim arises from that activity.” § 48.193(2), Fla. Stat. The statutory standard has been interpreted to require “continuous and systematic general business contacts” with the forum state. Caiazzo, 73 So. 3d at 250.
Specific jurisdiction is defined as follows:
Specific jurisdiction requires actions directly connected to the forum state with a list of satisfactory actions set forth under the statute. Bacjet. LLC, 221 So. 3d at 675. One of the enumerated actions involves “[c]omitting a tortious act within this state.” § 48.193(1)(a)2., Fla. Stat.
There was no allegations or fact to support general jurisdiction over the Oklahoma lawyer – the lawyer did not have any connections to Florida of any sort. Instead, the plaintiff sought to proceed under specific jurisdiction, essentially that the alleged estate planning malpractice in question was a tort that was committed in Florida, creating Florida jurisdiction.
The Court starts by going through the general principles of how to determine whether a tort was committed within Florida.
Electronic, telephonic, or written communications may establish tortious conduct as long as the action arises from the communications. Wendt v. Horowitz, 822 So. 2d 1252, 1259-60 (Fla. 2002). The jurisdictional analysis should still focus on where the tortious conduct occurred rather than where the plaintiff suffered damages. Guarino, 327 So. 3d at 861 (quoting Metnick & Levy, P.A. v. Seuling, 123 So. 3d 639, 645 (Fla. 4th DCA 2013). A mere injury in Florida, without allegations of acts or misconduct in Florida, similarly fails to establish jurisdiction. Kaminsky v. Hecht, 272 So. 3d 786, 788 (Fla. 4th DCA 2019). But, actions directed toward, a11d work performed within, the forum state can amount to the necessary to1tious conduct. Beto Drywall Acquisition, LLC v. Mintz & Fraade, P.C., 9 So. 3d 65 1, 653 (Fla. 4th DCA 2009). Simply communicating to, or transferring documents within, the state cannot. Harris v. Shuttlesworth & Ingersoll, P. C. , 831 So. 2d 706, 708 (Fla. 4th DCA 2002); Hirsch v. Weitz, I 6 So. 3d 148, 151 (Fla. 4th DCA 2009).
The Court seemed to focus on the intended use of the legal documents: were they intended to be used in the state of Florida? If so, perhaps specific jurisdiction would attach.
But the Defendant held a winning Ace in the hole. Even though the will listed Florida residency of the Decedent, the trust in question stated that Oklahoma law would apply. And it appears that the bulk, if not all, of Decedent’s assets in question were already in the trust, and that the will was simply a pour-over will, often used as a catch call in case an asset did not end up in the trust during the Decedent’s life. What must have been critical was that there was no Florida probate opened.
Notwithstanding references to Florida through the documents’ language and [the Decedent’s] connections, Defendants’ had not been retained for Florida-specific services. In fact, Defendants
provided proof that probate in any state had never been intended given the goal of avoiding probate through estate planning.
The Fourth District held in Beta Drywall that a nonresident attorney committed a tortious act in Florida by causing faulty acquisition articles to be filed in the state. Beta Drywall Acquisition, LLC, 9 So. 3d at 653. The nonresident attorney had been reta ined explicitly for the purpose of creating LLCs to acquire an existing Florida corporation’s assets. Id. The attorney’s failure to formalize a written agreement, which had been executed by and among the Florida corporation’s members, resulted in a dispute and derivative action. Id. at 652. Although the tort of legal malpractice accrued in Florida where the plaintiff suffered damages, the court’s holding also indicated that the damages were a direct result of the attorney’s negligence. Id. at 653. While the alleged negligence in the instant case resulted in inadequate documents under Florida law, Defendants had not prepared the documents specifically for filing in Florida, unlike the nonresident attorney in Beta Drywall.
The Court deemed the question a “close call,” but the result makes sense. Out of state attorneys who prepare estate planning documents for Florida residents risk being hauled into Florida if there is a problem, but if the out of state attorney has no other contacts with Florida, and there is no intention that any of the estate planning documents are actually used in Florida, jurisdiction might not attach. Apparently, preparing documents for probate avoidance will not create jurisdiction. But what if the Decedent forgot to title a small checking account into his trust and passed, with the account in his name, requiring probate? Based on the Court’s reasoning, if the will (stating Florida residency) was admitted to probate and a probate administration opened, it is certainly possible that the Oklahoma lawyer might have been subject to Florida jurisdiction. Although we have way of knowing whether the lawyer did anything wrong, it is always better to be sued in one’s own state than another state halfway across the country.