DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

JBJ INVESTMENT OF SOUTH FLORIDA, INC., a Florida corporation,

Appellant,

v.

SOUTHERN TITLE GROUP, INC., a Florida corporation, THE BURGESS 

LAW FIRM, P.A., a Florida professional corporation, and FREDERICK 

BURGESS, an individual,

Appellees.

Nos. 4D16-1925 & 4D16-3974

[ July 5, 2018 ]

Consolidated appeal and cross-appeal from the Circuit Court for the 

Seventeenth Judicial Circuit, Broward County; John B. Bowman, Judge; 

L.T. Case No. CACE14024230 (02).

Robin F. Hazel of Hazel Law, P.A., Pembroke Pines, for appellant.

Melinda S. Thornton and Kathryn L. Ender of Cole, Scott & Kissane, 

P.A., Miami, for appellees.

TAYLOR, J.

JBJ Investment of South Florida (“JBJ”) appeals a final summary 

judgment entered in favor of Frederick Burgess, Esq., and the Burgess Law 

Firm, P.A., (collectively the “Burgess Defendants”) on JBJ’s claims for legal 

malpractice. The Burgess Defendants appeal the trial court’s order 

denying their motion for attorney’s fees pursuant to a proposal for 

settlement. We reverse the summary judgment in favor of the Burgess 

Defendants, rendering it unnecessary for us to reach the issue concerning 

validity of the proposal for settlement.

Facts

JBJ filed the underlying lawsuit against Southern Title for negligence 

and against the Burgess Defendants for legal malpractice. The gravamen 

of the claim against the Burgess Defendants is that they prepared a 

mortgage containing incorrect legal descriptions of properties that were to 

secure a loan made by JBJ. The summary judgment evidence established
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the following facts.

Incel Hernandez is the principal and sole employee of JBJ. One of JBJ’s 

business activities is to lend money for real estate transactions. Luis 

Sotero, a personal friend of Mr. Hernandez, would refer borrowers to Mr. 

Hernandez. Mr. Sotero informed Mr. Hernandez of the opportunity to lend 

money to the Maslanka family.1

In March 2011, JBJ agreed to loan $135,000 to the Maslanka family 

and its related family trusts. The loan was to be secured by a note and 

mortgage on five properties owned by the Maslanka family, including a 

commercial property in Osceola County known as the Modern Day 

Furniture Store. The Modern Day property was the most valuable of all 

the properties and was essential to JBJ’s decision to make the loan.

The title agency handling the closing for the loan was Southern Title. 

JBJ decided to use Southern Title because one of its title agents, Ingrid 

Goenaga, was a friend of both Mr. Hernandez and Mr. Sotero.

Ms. Goenaga, who is not an attorney, performed title services and 

prepared customary documents in connection with the closing, such as 

the HUD statement and deeds. At some point, Ms. Goenaga was provided 

with the parcel identification numbers for the five properties that were to 

be used as collateral for the loan.

The summary judgment evidence is conflicting as to whether anyone 

on behalf of JBJ asked Ms. Goenaga to engage the services of a lawyer to 

work on the loan transaction. Ms. Goenaga testified that no agent or 

employee of JBJ specifically asked for a lawyer to work on the mortgage. 

By contrast, Mr. Hernandez testified that he told Ms. Goenaga he wanted 

an attorney to prepare and review all of the loan documents for accuracy.

In any event, it is undisputed that Ms. Goenaga hired the Burgess 

Defendants to prepare the note and mortgage. Mr. Hernandez gave his 

version of how Mr. Burgess became involved in the transaction: “I 

requested that I need an attorney. I requested that everything should be 

a hundred percent proof, and I told Southern Title that that’s what I 

wanted and they are the ones who selected Burgess.”

1 Mr. Hernandez testified that he was the only person with “any authorization to 

do business” on behalf of JBJ, and that Mr. Sotero was not an employee or 

independent contractor of JBJ. Nevertheless, Mr. Sotero handled the 

communications regarding the loan with the title agency and the Maslanka 

family.
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Ms. Goenaga testified that she sent the work to Mr. Burgess because 

she was a former employee of Mr. Burgess’s law firm and they maintained 

a working relationship where he would engage her as a subcontractor to 

process his transactions. Ms. Goenaga explained that she would refer files 

to Mr. Burgess if “something legal” needed to be done, which in this case 

was preparing the mortgage and the note.

It is undisputed that Mr. Hernandez never met or communicated with 

Mr. Burgess. Mr. Hernandez admitted that there was no communication 

whatsoever between JBJ and Mr. Burgess on the issue of JBJ’s 

expectations concerning Mr. Burgess’s legal services. However, Mr. 

Hernandez claimed that JBJ “indirectly” hired Mr. Burgess, and that Ms. 

Goenaga communicated with Mr. Burgess on JBJ’s behalf.2

The Burgess Defendants prepared the note and mortgage. The 

mortgage stated that it encumbered the property legally described in 

Exhibit “A.” Exhibit “A” was attached to the mortgage and contained the 

legal descriptions of five properties. However, the Burgess Defendants did 

not prepare Exhibit “A.” Instead, Southern Title prepared Exhibit “A” and 

the legal descriptions contained therein.

Ms. Goenaga testified that she did not send Mr. Burgess the list of the 

properties to be included in Exhibit “A.” She explained that the extent of 

Mr. Burgess’s involvement in the transaction was preparing the note and 

mortgage. Ms. Goenaga alone created the final list of encumbered 

properties. She did not consider the list of legal descriptions to be

something that needed to be done by an attorney.

The loan transaction closed in March 2011, and the documents were 

recorded the next month. A payment of $1,350 was made to the Burgess 

Law Firm for “Attorney Fees/Doc Prep.” The attorney’s fee was debited 

against the loan funds at closing.

The borrowers eventually defaulted on the loan, prompting JBJ to 

initiate foreclosure proceedings in 2013. When JBJ started foreclosure 

proceedings, however, JBJ learned that Exhibit “A” to the mortgage 

2 At another point in his deposition, however, Mr. Hernandez seemed to admit 

that he did not have any conversations with anyone at Southern Title regarding 

his expectations for Mr. Burgess’s legal work. Nonetheless, Mr. Hernandez 

emphasized that he expected “someone to look over [his] paperwork and make 

sure it was right.” Mr. Hernandez explained: “I don’t think I should [have to] tell 

anybody that they need to look over and make sure that things are right.”
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contained a duplicate legal description for one of the small properties and 

completely omitted the legal description of the Modern Day property, which 

was the most valuable property.

JBJ thereafter commenced the instant action against Southern Title 

and the Burgess Defendants, seeking to recover damages as a result of the 

erroneous legal descriptions in the mortgage. The Burgess defendants 

answered and raised as an affirmative defense that there was no attorneyclient relationship.

The Burgess Defendants later moved for summary judgment, arguing 

in relevant part that: (1) there was no attorney-client relationship as a 

matter of law due to the “complete lack of communication and 

consultation” between JBJ and the Burgess Defendants; and (2) JBJ could 

not show that the Burgess Defendants’ responsibilities included preparing 

Exhibit “A” to the mortgage.

The trial court granted the motion for summary judgment. For 

purposes of its ruling, the trial court assumed, for the sake of argument,

that an attorney-client relationship existed, but concluded that the 

Burgess Defendants’ role in the transaction did not include preparing the 

legal descriptions set forth in Exhibit “A.”

Prior to the entry of final summary judgment, JBJ moved for rehearing 

or reconsideration and for leave to amend the complaint. The proposed 

amended complaint added an additional count against Mr. Burgess for 

legal malpractice.

The trial court entered a final summary judgment in favor of the 

Burgess Defendants. The trial court later entered an order denying the 

motion for rehearing and the motion for leave to amend the complaint.

Subsequently, the trial court found that the Burgess Defendants’ 

proposal for settlement was not served in good faith, and entered an order 

denying the Burgess Defendants’ entitlement to fees.

This consolidated appeal ensued.

JBJ’s Arguments on Appeal from the Final Summary Judgment

On appeal, JBJ argues that genuine issues of material fact remain 

regarding: (1) whether an attorney-client relationship existed where there

was evidence that JBJ entrusted the closing agent to communicate with 

Mr. Burgess on behalf of JBJ; and (2) whether the scope of Mr. Burgess’s 
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duties in preparing the note and mortgage encompassed the obligation to 

ensure the accuracy of the legal description of the properties that would 

be encumbered by the mortgage. We agree.

Standard of Review 

The standard of review for orders granting summary judgment is de 

novo. Haber v. Deutsche Bank Nat’l Tr. Co., 81 So. 3d 565, 566 (Fla. 4th 

DCA 2012). A movant is entitled to summary judgment “if the pleadings 

and summary judgment evidence on file show that there is no genuine 

issue as to any material fact and that the moving party is entitled to a 

judgment as a matter of law.” Fla. R. Civ. P. 1.510(c). “[T]he burden is 

upon the party moving for summary judgment to show conclusively the 

complete absence of any genuine issue of material fact.” Albelo v. S. Bell, 

682 So. 2d 1126, 1129 (Fla. 4th DCA 1996).

Elements of a Legal Malpractice Action

A cause of action for legal malpractice has three elements: (1) the 

attorney’s employment by the client; (2) the attorney’s neglect of a 

reasonable duty; and (3) the attorney’s negligence was the proximate cause 

of loss to the client. R.S.B. Ventures, Inc. v. Berlowitz, 211 So. 3d 259, 263 

(Fla. 4th DCA 2017).

Here, we find that there were genuine issues of material fact remaining 

as to whether an attorney-client relationship existed and whether the 

Burgess Defendants neglected a reasonable duty.

Whether an Attorney-Client Relationship Existed?

The test for determining the existence of an attorney-client relationship 

“is a subjective one and hinges upon the client’s belief that he is consulting 

a lawyer in that capacity and his manifested intention is to seek 

professional legal advice.” Bartholomew v. Bartholomew, 611 So. 2d 85, 

86 (Fla. 2d DCA 1992) (citation and internal quotation marks omitted). 

This subjective belief must be reasonable. Id.

Under Florida law, an essential element of an attorney-client

relationship is that there must be some sort of consultation between the 

lawyer and the putative client. For example, in The Florida Bar v. Beach, 

675 So. 2d 106, 107–09 (Fla. 1996), the Florida Supreme Court held that 

an attorney-client relationship was not established where: (1) the putative 

client entered into a contract with a paralegal firm to prepare legal 

documents, which were to be reviewed by an attorney; (2) the contract 
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stated that the putative client would not be represented by the attorney 

unless she entered into a separate agreement with the attorney; and (3) 

the putative client never met with the attorney, though a paralegal passed 

on the attorney’s advice concerning what legal action the putative client 

should pursue.

The Eleventh Circuit, applying Florida law, has stated that “[t]he 

subjective belief test is only applied after a putative client consults with an 

attorney, and is used to emphasize that, following a consultation, it is the 

belief of the putative client and not the lawyer’s actions that determines 

whether a lawyer-client relationship has developed.” Jackson v. BellSouth 

Telecomms., 372 F.3d 1250, 1281 n.29 (11th Cir. 2004). The Eleventh 

Circuit explained: “Requiring a subjective belief to be reasonable makes 

sense, since the subjective belief of a ‘client’ that he has retained a lawyer 

whom he has never consulted—or even spoken to—cannot be an 

objectively reasonable one.” Id. The Eleventh Circuit interpreted Beach

as standing for the proposition that “regardless of a putative client’s 

subjective beliefs, there can be no attorney-client relationship when the 

client does not consult with the attorney, especially when there is no 

contact between them.” Id. at 1282. Thus, according to the Eleventh 

Circuit, “an actual consultation with a lawyer” is a prerequisite to forming 

an attorney-client relationship. Id. at 1281 n.29.

Nonetheless, “[a]lthough it is natural to think of this fundamental 

element as a consultation conducted personally between a party in need 

of legal assistance and an attorney, there are a number of situations in 

which the requirement can be met even though the individual initiating 

the consultation does not himself require legal advice or services.” George 

A. Locke, Existence of Attorney-Client Relationship, 48 Am. Jur. Proof of 

Facts 2d 525 (1987). A sufficient consultation occurs for purposes of 

establishing an attorney-client relationship where the person consulting 

the attorney “is, for example, the spouse, parent, doctor, or insurer of the

person in need of the attorney’s services and is acting with at least implied 

authority given by that person.” Id. (footnotes omitted).

The consultation requirement can therefore be met when an agent of 

the client consults with an attorney on the client’s behalf. See In re McCall, 

08-02-00071-CV, 2002 WL 1341104, at *2 (Tex. App. June 20, 2002) 

(“Under the present facts, we believe that an attorney-client relationship 

existed by virtue of Dolores consulting Cotton Bledsoe in her capacity as 

Linda’s agent.”); Clarke v. Ruffino, 819 S.W.2d 947, 949–50 (Tex. App. 

1991) (holding that an attorney-client relationship existed where the client 

paid the attorney for legal services in connection with a refinancing, even 

though the client never asked the attorney to represent him and all contact 
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was with the bank); cf. In re Lentek Int’l, Inc., 346 Fed. App’x 430, 433 

(11th Cir. 2009) (finding that no attorney-client relationship existed, but 

explaining that there was “no evidence in the record that anyone acting on 

behalf of the Debtor corporation consulted with Greenspoon or Blodig 

seeking legal advice for the Debtor”) (emphasis added).

The threshold question in this case is whether there was an attorneyclient relationship between JBJ and the Burgess Defendants.3 Although 

JBJ never directly consulted or met with Mr. Burgess, the consultation 

requirement may be satisfied by an agent of the client. Here, the evidence 

viewed in the light most favorable to JBJ showed that: (1) JBJ wanted an 

attorney to prepare the loan documents and review them for accuracy; (2) 

JBJ’s title agent, Ms. Goenaga, contacted Mr. Burgess on JBJ’s behalf and 

hired him to prepare the note and mortgage; (3) Mr. Burgess prepared the 

note and mortgage; and (4) Mr. Burgess accepted a fee for his legal 

services. Thus, a reasonable view of the evidence is that a consultation 

occurred when Ms. Goenaga, as JBJ’s title agent, hired Mr. Burgess and 

assigned him the task of preparing the note and mortgage.

Cases like Jackson and Beach are distinguishable because in those 

cases there was no evidence that someone acting as an agent of the client 

hired the lawyer to render legal services on behalf of the client. Unlike 

Jackson, this is not a case where Mr. Burgess had “literally no basis to 

know” that JBJ would consider him its attorney. 372 F.3d at 1282. 

Similarly, although the attorney in Beach gave legal advice to the putative 

client through a non-lawyer conduit, Beach is nonetheless distinguishable 

because there the client’s agreement with the paralegal firm specifically 

stated that the client would not be represented by the attorney. 675 So. 

2d at 109. Thus, in Beach it was clear that the client was not hiring the 

attorney through the paralegal firm. By contrast, in this case, Mr. Burgess 

was hired by JBJ’s title agent, rendered legal services by preparing the 

note and mortgage, and billed for those services.

In short, a reasonable jury could find that an attorney-client 

relationship existed between JBJ and the Burgess Defendants by virtue of 

Ms. Goenaga consulting with Mr. Burgess in her capacity as JBJ’s title 

agent and referring to him the work of preparing the note and mortgage.

3 Although the trial court assumed for purposes of its summary judgment ruling 

that an attorney-client relationship existed between JBJ and the Burgess 

Defendants, the Burgess Defendants argue that summary judgment could be 

affirmed on the alternative basis that no attorney-client relationship existed. 

Thus, we find it necessary to address this issue.
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Whether the Burgess Defendants Neglected a Reasonable Duty?

The question therefore becomes whether there is a genuine issue of 

material fact concerning the scope of the Burgess Defendants’ duties in 

preparing the note and mortgage.

Once an attorney-client relationship is established, “[a]n attorney may 

not neglect to perform the services which he agrees to perform or which by 

implication he agrees to perform when he accepts employment.” Atkin v. 

Tittle & Tittle, 730 So. 2d 376, 378 (Fla. 3d DCA 1999) (citation, internal 

quotation marks, and brackets omitted). Thus, “[a]n attorney may not

disregard matters that arise and reasonably signal potential legal 

problems,” even if those matters do not fall precisely within the general 

rule governing the scope of an attorney’s duties when representing a client 

in a real estate transaction. Id.

Here, Ms. Goenaga’s testimony was insufficient to establish as a matter 

of law that the Burgess Defendants did not have a duty to review the legal 

descriptions of the properties. Certainly, Ms. Goenaga never asked the 

Burgess Defendants to prepare the legal descriptions of the properties to 

be encumbered by the mortgage, and never transmitted to Mr. Burgess the 

list of the properties to be included in Exhibit “A” to the mortgage. Ms. 

Goenaga explained that she alone created the final list of encumbered 

properties, and that she did not consider the list of legal descriptions to be 

something that needed to be done by an attorney.

Nonetheless, Ms. Goenaga’s testimony as a title agent does not 

establish the standard of professional care applicable to a lawyer in this 

real estate transaction. On these facts, a reasonable jury could find that, 

once the Burgess Defendants undertook to prepare the mortgage, they 

agreed by implication to ensure that the mortgage encumbered the correct 

real estate. Even though the title agent agreed to prepare the legal 

descriptions, Mr. Burgess arguably had the ultimate responsibility to 

review that work product for accuracy where he was retained to prepare 

the mortgage and he charged a separate fee for this service.4 Notably, 

4 Southern Title might have been allowed to prepare the mortgage in this case 

without the involvement of a lawyer, but even that is unclear under the facts of 

this case. Under Florida law, “title insurers are permitted to prepare deeds, 

mortgages, satisfactions and other documents affecting the legal title to be 

insured,” so long as this is done as a mere necessary incident to honor a title 

insurance commitment. Preferred Title Servs., Inc. v. Seven Seas Resort Condo., 

Inc., 458 So. 2d 884, 886 (Fla. 5th DCA 1984). However, such conduct is 
9

Exhibit “A” was incorporated by reference in the mortgage, and was 

therefore a part of the mortgage that the Burgess Defendants agreed to 

prepare. At a minimum, a genuine issue of material fact exists as to 

whether the Burgess Defendants neglected a reasonable duty by failing to 

review the legal descriptions prepared by the title agent.

Whether the Trial Court Abused its Discretion in Denying JBJ’s 

Motion for Leave to Amend the Complaint?

JBJ next argues that the trial court abused its discretion in denying 

JBJ’s motion for leave to amend the complaint.

The standard of review for an order denying leave to amend a complaint 

is abuse of discretion. Port Marina Condo. Ass’n v. Roof Servs., Inc., 119 

So. 3d 1288, 1291 (Fla. 4th DCA 2013).

“Leave to amend should not be denied unless the privilege has been 

abused, there is prejudice to the opposing party, or amendment would be 

futile.” Fields v. Klein, 946 So. 2d 119, 121 (Fla. 4th DCA 2007). “A party 

may, with leave of court, amend a pleading at or even after a hearing and 

ruling on a motion for summary judgment.” PNC Bank, N.A. v. Progressive 

Emp’r Servs. II, 55 So. 3d 655, 660 (Fla. 4th DCA 2011) (citation and 

internal quotation marks omitted).

Here, JBJ did not abuse the privilege to amend, as there were no prior 

amendments to the complaint. Moreover, under PNC Bank, JBJ’s motion 

for leave to amend was not untimely, as a party may seek leave to amend 

a pleading even after a ruling on a motion for summary judgment.

Furthermore, allowing the amendment would not procedurally 

prejudice the Burgess Defendants, as they would still be afforded sufficient 

opportunity to prepare a defense against the amended complaint. See 

Marquesa at Pembroke Pines Condo. Ass’n v. Powell, 183 So. 3d 1278, 

1281 (Fla. 4th DCA 2016) (“Furthermore, Appellee is unlikely to be unduly 

prejudiced by the addition of this count. While the addition of the contract 

unauthorized “if a charge was made for such services separate and apart from 

the ‘regular title insurance premium’ which the insurer is authorized to charge.” 

Id. Here, the Settlement Statement for the transaction indicated that it was 

Chicago Title Insurance Company—not Southern Title—that issued the title 

insurance. But even assuming Southern Title could have prepared the mortgage 

without Mr. Burgess, he arguably had the duty to ensure that the mortgage was 

prepared correctly when he agreed to prepare it and made a separate charge for 

such services.
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claim may prevent Appellee from prevailing at summary judgment, he 

would still be afforded sufficient opportunity to prepare a defense for the 

breach of contract claim.”).

Finally, because we conclude that there were genuine issues of material 

fact remaining as to whether an attorney-client relationship existed, we 

likewise conclude that JBJ’s proposed amendment would not have been 

futile.

In sum, we conclude that the trial court abused its discretion in 

denying JBJ leave to amend its complaint where there were no prior 

amendments to the complaint, the record does not show that the Burgess 

Defendants would have been prejudiced, and the amendment would not 

have been futile.

Fee Appeal

Because we are reversing the summary judgment in favor of the 

Burgess Defendants, we vacate the order denying the Burgess Defendants’ 

motion for attorney’s fees. We do not express any opinion as to the validity 

of the Burgess Defendants’ proposal for settlement. See Emergency Servs.

24, Inc. v. United Prop. & Cas. Ins. Co., 165 So. 3d 756, 757 (Fla. 4th DCA 

2015) (“Because we are reversing the summary judgment in favor of the 

insurer, the question of whether the insurer is entitled to attorney’s fees is 

premature. We therefore reverse and vacate the order denying attorney’s 

fees without expressing any opinion as to the validity of the proposal for 

settlement.”).

Conclusion

We reverse the final summary judgment and the order denying JBJ’s 

motion for leave to amend its complaint, and we remand for further 

proceedings consistent with this opinion. We also vacate the order on the 

Burgess Defendants’ Motion for Entitlement to Fees and Costs, as that 

issue is premature in light of our reversal of the summary judgment.

Reversed and Remanded.

WARNER and GROSS, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.