252 So. 3d 747
Fla. Dist. Ct. App.2018Background
- Plaintiff Lindsay Owens sued her former attorney Katherine Corrigan and KLC Law, P.A. for legal malpractice arising from representation in a dependency case that allegedly caused loss of custody.
- Defendants moved to dismiss, relying on a signed retainer agreement containing a broad arbitration clause requiring binding arbitration “in accordance with the Fee Arbitration Rule (Chapter 14) of the Rules Regulating the Florida Bar.”
- The retainer’s arbitration clause referenced fees, “performance of legal services,” and contained a parenthetical warning that arbitration waives the right to a jury trial.
- Owens opposed, arguing the clause was vague/ambiguous and violated Florida Bar Rule 4-1.5(i) because it lacked the required written advice to consider independent counsel and the bold NOTICE language for mandatory fee-arbitration clauses.
- The trial court dismissed the complaint as subject to arbitration; on rehearing Owens pointed out Chapter 14’s arbitration jurisdiction is limited to fee disputes. The trial court denied rehearing and Owens appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a valid arbitration agreement requires dismissal | Owens: Clause ambiguous and unlawful; arbitration clause unenforceable | Corrigan: Signed retainer requires arbitration of dispute, including malpractice | Court: Arbitration clause unenforceable because it violated Fla. Bar R. 4-1.5(i) |
| Whether Rule 4-1.5(i) applies when dispute is malpractice (not a fee dispute) | Owens: Rule applies because clause prospectively mandates arbitration of fee disputes and lacked required notice | Corrigan: Rule applies only to fee disputes; this is malpractice so rule inapplicable | Court: Rule applies to the clause because it prospectively provided for mandatory arbitration of fee disputes; failure to include warning invalidates clause |
| Whether invalid portion can be severed (save remainder enforcing malpractice arbitration) | Owens: N/A (sought invalidation) | Corrigan: Sever fee-related language and enforce remaining arbitration of malpractice claims | Court: Cannot sever; fee arbitration portion intertwined with performance language, so whole clause unenforceable |
| Whether clause was ambiguous as to scope (fees only vs. malpractice) | Owens: Clause ambiguous due to reference to Fee Arbitration Rule | Corrigan: Clause unambiguously covers malpractice; doubts favor arbitration | Court: Did not resolve ambiguity because Rule 4-1.5(i) violation was dispositive; arbitration clause invalid on its face |
Key Cases Cited
- United HealthCare of Fla., Inc. v. Brown, 984 So. 2d 583 (Fla. 4th DCA) (standard of review for arbitration agreement validity)
- Seifert v. U.S. Home Corp., 750 So. 2d 633 (Fla. 1999) (elements to compel arbitration)
- Mintz & Fraade, P.C. v. Beta Drywall Acquisition, LLC, 59 So. 3d 1173 (Fla. 4th DCA) (retainer arbitration clauses must comply with Florida Bar Rules)
- Feldman v. Davis, 53 So. 3d 1132 (Fla. 4th DCA) (nonconforming mandatory fee-arbitration provisions may be unenforceable)
- Shotts v. OP Winter Haven, Inc., 86 So. 3d 456 (Fla. 2011) (refusal to sever invalid portion of arbitration agreement when it goes to essence of contract)