DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

GEORGETA MILLER,

Appellant,

v.

FINIZIO & FINIZIO, P.A., a Florida professional association, PAUL G. 

FINIZIO and ANYA E. MACIAS,

Appellees.

Nos. 4D15-4649 and 4D16-831

[ August 23, 2017 ]

Consolidated appeal from the Circuit Court for the Seventeenth Judicial 

Circuit, Broward County; Carol Lisa Phillips, Judge; L.T. Case No. 

09005292 (09).

Georgeta Miller, Weston, pro se.

Scott A. Cole and Lissette Gonzalez of Cole, Scott & Kissane, P.A., 

Miami, for appellees.

TAYLOR, J.

In this legal malpractice action arising out of divorce litigation, the 

plaintiff, Georgeta Miller, appeals an amended final judgment on the 

pleadings entered in favor of the defendants, Finizio & Finizio, P.A., Paul 

Finizio, and Anya Macias. We reverse.

Background and Underlying Dissolution Proceeding

This legal malpractice action has its genesis in a marital dissolution 

proceeding between the plaintiff and her former husband. The defendants, 

Finizio & Finizio, P.A., Paul Finizio, and Anya Macias, represented the 

plaintiff in the dissolution proceeding.

In November 2006, the plaintiff entered into a marital settlement 

agreement with her husband, which largely dealt with custody and child 

support issues with respect to the parties’ two minor children.

At the final hearing in the dissolution action, the parties announced 
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that they had reached an agreement on all the issues in the case. The 

parties agreed that: (1) the plaintiff would pay $60,000 to the trust account 

of the husband’s lawyer in exchange for a quitclaim deed to the marital 

home; (2) both parties would waive alimony; and (3) everything else would 

be covered by the marital settlement agreement. The plaintiff stated under 

oath that she agreed to be bound by the marital settlement agreement and 

by the terms that her lawyer announced on the record.

In January 2007, the family court entered a final judgment of 

dissolution of marriage, incorporating the terms of the written marital 

settlement agreement as well as the terms of the agreement announced in 

open court.

The Legal Malpractice Action

In January 2009, the plaintiff, through counsel, filed a legal 

malpractice action against the defendants stemming from their 

representation of her in the dissolution action. The plaintiff alleged that 

the defendants violated the standard of care in numerous ways, including, 

among other things: (1) failing to obtain the required financial disclosures 

from the husband; and (2) informing the plaintiff that she could just sign 

the marital settlement agreement, and that the plaintiff and her counsel 

would pursue the financial disclosures and equitable distribution at a later 

date. The plaintiff further alleged that as a result of the defendants’ 

violations of the standard of care, she was damaged in that she relied upon 

the defendants’ advice and signed a highly disadvantageous agreement, 

resulting in a final judgment with much less favorable terms than would 

have otherwise been the case.

The defendants filed an Answer and Affirmative Defenses, which they

later amended.

After the defendants filed their original answer, the plaintiff’s counsel 

withdrew from the case and the plaintiff began representing herself.

The legal malpractice case was later abated while the plaintiff pursued 

multiple unsuccessful motions to vacate the final judgment of dissolution 

of marriage under Florida Rule of Civil Procedure 1.540(b).

After the legal malpractice case was reopened, the defendants 

eventually filed an Amended Motion for Judgment on the Pleadings, 

arguing that: (1) because the plaintiff knowingly and voluntarily entered 

into the martial settlement agreement, her legal malpractice action was 

improper; and (2) the plaintiff could not prove redressable harm because 
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the marital settlement agreement is always subject to modification in the 

family court based on changed circumstances.

Following a hearing, the trial court granted the Amended Motion for 

Judgment on the Pleadings. This appeal ensued.1

Parties’ Arguments

On appeal, the plaintiff argues, in relevant part, that her legal 

malpractice suit was not barred by the marital settlement agreement 

incorporated in the final dissolution judgment, that she suffered 

redressable harm, and that the trial court erred in entering judgment on 

the pleadings.

In response, the defendants argue that: (1) the plaintiff’s knowing and 

voluntary entry into the marital settlement agreement is a bar to her legal 

malpractice action; and (2) the legal malpractice action is improper 

because the marital settlement agreement is always subject to 

modification in the family court.

Standard of Review

The standard of review applicable to a judgment on the pleadings is de 

novo. Lutz v. Protective Life Ins. Co., 951 So. 2d 884, 887 (Fla. 4th DCA 

2007). “The purpose of a motion for judgment on the pleadings is to test 

the legal sufficiency of a cause of action or defense where there is no 

dispute as to the facts.” Barentine v. Clements, 328 So. 2d 878, 879 (Fla. 

2d DCA 1976). A motion for judgment on the pleadings “is similar to a 

motion to dismiss and raises only questions of law arising out of the 

pleadings.” Venditti-Siravo, Inc. v. City of Hollywood, Fla., 418 So. 2d 1251, 

1253 (Fla. 4th DCA 1982). Where a defendant moves for judgment on the 

pleadings, a court must take as true all of the material allegations in the 

plaintiff’s complaint and must disregard all of the denials in the 

defendant’s answer. Lutz, 951 So. 2d at 887.

Legal Analysis

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

attorney’s employment; (2) the attorney’s neglect of a reasonable duty; and 

1 Later, in compliance with this court’s order authorizing the trial court to enter 

a final order, the trial court entered both a Final Judgment on the Pleadings and 

an Amended Final Judgment on the Pleadings.
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(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).

The proposition that a lawyer may be held liable for malpractice in 

connection with “a case that was ultimately settled by the client, whether 

based on deficiencies in preparation that prejudiced the case and more or 

less required a settlement or on a negligent evaluation of the client’s case, 

has been accepted by nearly every court that has faced the issue.” Thomas 

v. Bethea, 351 Md. 513, 527, 718 A.2d 1187, 1194 (1998).

Florida courts are no exception. Under Florida law, a client’s mere 

acceptance of a settlement in a prior case does not automatically foreclose 

the client from bringing a malpractice suit against the attorney who 

handled the case. Keramati v. Schackow, 553 So. 2d 741, 745-46 (Fla. 5th 

DCA 1989). A client’s agreement to settle a case does not, as a matter of 

law, negate “any alleged legal malpractice as a proximate cause of loss.” 

Bill Branch Chevrolet, Inc. v. Philip L. Burnett, P.A., 555 So. 2d 455, 456 

(Fla. 2d DCA 1990). Instead, “[t]his is a matter of proof for trial.” Id.

To establish proximate causation for legal malpractice arising out of a 

settlement, the client must demonstrate that there is an amount of 

damages which he or she would have recovered but for the lawyer’s 

negligence. Tarleton v. Arnstein & Lehr, 719 So. 2d 325, 328–30 (Fla. 4th 

DCA 1998).

Here, the plaintiff’s complaint undoubtedly alleged each element of a 

cause of action for legal malpractice. Therefore, we must decide whether 

the plaintiff’s claim is otherwise barred for any of the reasons asserted by 

the defendants.

Contrary to the defendants’ first argument, the plaintiff’s voluntary 

acceptance of the marital settlement agreement does not bar her legal 

malpractice action as a matter of law. An attorney is not “insulated from 

liability for failing to exercise ordinary skill and care in resolving settlement 

issues.” Sauer v. Flanagan & Maniotis, P.A., 748 So. 2d 1079, 1082 (Fla. 

4th DCA 2000). Likewise, a client cannot be faulted “for relying on an 

attorney’s erroneous legal advice or for failing to correct errors of the 

attorney which involve the exercise of professional expertise.” Tarleton, 

719 So. 2d at 331. Accordingly, the defendants’ first argument flies in the 

face of well-settled principles of Florida law.2

2 Nor is this a case where the plaintiff abandoned the malpractice claim by settling 

the underlying lawsuit. See Coble v. Aronson, 647 So. 2d 968, 970 (Fla. 4th DCA 

1994) (explaining that “[o]ccasionally, where the allegations involve attorney 
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The defendants rely primarily on George v. Cigna Insurance Co., 691 So. 

2d 1209 (Fla. 3d DCA 1997), in support of their contention that “where a 

client confirms the settlement of a claim, the client cannot then sue for 

legal malpractice.” However, George does not stand for such a broad 

proposition.

In George, the client sued his former lawyers for legal malpractice for 

settling a lawsuit without his consent, but the client had previously told 

his lawyers that he had “no objection” to the proposed letter that ultimately 

settled the case. Id. at 1211–12. The appellate court affirmed summary 

judgment in favor of the lawyers on the malpractice claim, reasoning that, 

“[h]aving given consent, it is too late for [the client] to change position 

now.” Id. at 1212. Thus, George stands for the unremarkable proposition 

that a client who consents to a settlement is barred from bringing a legal 

malpractice claim on the theory that his attorneys settled the lawsuit 

without his consent.

Nothing in George states that a client’s consent to a settlement bars a 

legal malpractice claim where the basis for the malpractice claim is the 

lawyer’s deficient preparation or misadvice leading up to the settlement. 

The malpractice allegation in this case is markedly different from the 

malpractice allegation in George. Here, the plaintiff is not alleging that she 

did not consent to the settlement of the underlying case, but rather is 

alleging that the defendants’ breach of the standard of care resulted in a 

disadvantageous settlement. Therefore, George is distinguishable.

The defendants’ alternative argument—that the plaintiff cannot show 

redressable harm because the marital settlement agreement is always 

subject to modification in family court—is also without merit. The 

defendants’ argument is inconsistent with Florida’s bright-line rule on 

accrual of legal malpractice claims.

Redressable harm for legal malpractice arising out of litigation occurs 

errors during litigation, redressable harm can only be determined upon 

completion of the appellate process, and therefore, the settlement of the 

underlying litigation will defeat any potential cause of action for attorney 

malpractice”). Here, the settlement of the underlying litigation did not thwart any 

appellate review process which could have cured the alleged malpractice. See 

Parker v. Graham & James, 715 So. 2d 1047, 1048 (Fla. 3d DCA 1998) (rejecting 

the argument that the plaintiffs abandoned their malpractice claim by settling 

the underlying claim, as “the settlement did not thwart any review process which 

could have cured the malpractice”).
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when “the litigation is concluded by final judgment” and “the final 

judgment becomes final.” Silvestrone v. Edell, 721 So. 2d 1173, 1175 (Fla. 

1998). “[A] judgment becomes final either upon the expiration of the time 

for filing an appeal or postjudgment motions, or, if an appeal is taken, 

upon the appeal being affirmed and either the expiration of the time for 

filing motions for rehearing or a denial of the motions for rehearing.” Id.

at 1175 n.2.

The rule of Silvestrone, however, “merely establishes a bright line for 

establishing when the client has suffered some loss as a consequence of 

the attorney’s negligence.” Larson & Larson, P.A. v. TSE Indus., Inc., 22 

So. 3d 36, 42 (Fla. 2009) (plurality opinion). This bright-line rule “does 

not require that there be a determination of the full extent of all losses 

suffered by the client due to the lawyer’s negligence.” Id.

Here, under the bright-line rule of Silverstrone, the plaintiff’s legal 

malpractice claim has accrued because the underlying dissolution 

litigation has been concluded by final judgment. The dissolution judgment 

is final within the meaning of Silverstrone because the time for filing an 

appeal or postjudgment motions has expired. The defendants’ argument 

to the contrary is unworkable in practice and would create uncertainty as 

to when legal malpractice claims accrue in the family law context.

The hypothetical possibility of obtaining a modification of the 

dissolution judgment does not change the fact that redressable harm 

occurred at the moment the dissolution judgment became final. When the 

dissolution judgment became final, the plaintiff allegedly suffered some

loss as a result of the defendants’ alleged malpractice. Moreover, in this 

case, some portions of the dissolution judgment were non-modifiable, 

including the alimony waiver and the property settlement. Put simply, 

while the possibility of obtaining a modification of the dissolution 

judgment based on a change in circumstances may be relevant to

determining the amount of damages, it does not affect when the legal 

malpractice claim accrued. For all of the foregoing reasons, the plaintiff’s 

legal malpractice claim is not premature.

In sum, the plaintiff’s complaint alleged each of the elements of a legal 

malpractice claim, her voluntary acceptance of a settlement in the 

underlying dissolution case did not bar her legal malpractice claim, and 

her legal malpractice claim was not premature. We reverse and remand 

for further proceedings.

Reversed and Remanded.
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DAMOORGIAN and KUNTZ, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.