        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                             JOHN PITCHER,
                               Appellant,

                                     v.

 DAVID J. ZAPPITELL, ZAPPITELL & KAPRAL, P.A., and ZAPPITELL
                       LAW FIRM, P.L.,
                          Appellees.

                               No. 4D14-91

                               [April 1, 2015]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach   County;    Meenu      Sasser,     Judge;    L.T.    Case     No.
502012CA007747XXXXMB.

   Reid Moore, Jr., Palm Beach, for appellant.

  Kerri C. Smith of Zappitell Law Firm, P.L., Delray Beach, for
appellees.

CIKLIN, J.

   John Pitcher (“the Father”) appeals the summary judgment entered
against him and on behalf of his former attorney and law firm in a
professional negligence case. He argues the court erred in basing
summary judgment on the element of causation. We agree and reverse.

   After the Father’s daughter Christina died in a car accident resulting
from the negligence of drivers of two other vehicles, the Father retained
David J. Zappitell and his law firm to represent him in the event a
wrongful death action was filed. Zappitell also represented Christina’s
mother, Olga Waldo (“the Mother”), who is the Father’s former wife. Prior
to any litigation, the parties entered into a settlement agreement with the
driver of one of the vehicles involved in the accident, but not the driver of
the second vehicle and an action was filed against the second driver.
After a trial, the jury awarded the Father substantially less than the
Mother. The Father received a total of $200,000 for past and future pain
and suffering damages, compared to the award of $4 million for past and
future pain and suffering damages for the Mother.
    As a result, the Father brought a complaint against Zappitell and the
law firm for malpractice. The Father alleged that Zappitell failed to
obtain his informed consent to joint representation, pursuant to Rule of
Professional Conduct 4-1.7(b)(4).1 According to the Father, Zappitell’s
joint representation of the parties compromised the law firm’s ability to
represent the Father’s interests. The record reveals that the Mother
made derogatory statements about the Father and his relationship with
his daughter during a pre-trial deposition taken by attorneys for the
second driver. In his malpractice lawsuit, the Father alleged that
Zappitell neglected to apprise the Father of the Mother’s highly
inflammatory statements before the Father’s own deposition was taken
and otherwise failed to properly prepare the Father for what turned out
to be a lengthy and comprehensive deposition. He also alleged that
Zappitell’s concurrent representation of the parties led to Zappitell’s
unwillingness and reluctance to impeach the negative trial testimony of
the Mother. The Father additionally alleged that Zappitell did not
properly prepare the Father for trial which permitted the wrongful death
defendant to negatively portray the Father in front of the jury. According
to the Father, Zappitell’s conflict of interest and divided loyalty resulted

1   The rule provides as follows in pertinent part:

     (a) Representing Adverse Interests. Except as provided in subdivision (b),
         a lawyer shall not represent a client if:

         (1) the representation of 1 client will be directly adverse to another client;
             or
         (2) there is a substantial risk that the representation of 1 or more clients
             will be materially limited by the lawyer’s responsibilities to another
             client, a former client or a third person or by a personal interest of the
             lawyer.

     (b) Notwithstanding the existence of a conflict of interest under subdivision
         (a), a lawyer may represent a client if:

         (1) the lawyer reasonably believes that the lawyer will be able to provide
             competent and diligent representation to each affected client;
         (2) the representation is not prohibited by law;
         (3) the representation does not involve the assertion of a position adverse
             to another client when the lawyer represents both clients in the same
             proceeding before a tribunal; and
         (4) each affected client gives informed consent, confirmed in writing or
             clearly stated on the record at a hearing.

R. Regulating Fla. Bar 4-1.7 (2012).

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in the disparate verdicts.

    Zappitell and the law firm moved for summary judgment, arguing that
(1) the Father was able to and did offer trial testimony himself, thereby
directly responding to the matters the Mother addressed during her
deposition; (2) the pre-trial depositions were never entered into evidence;
and (3) there was no dispute with regard to causation. In support of
their motion, they filed, among other items, transcripts of the Father’s
trial testimony.

   The trial court granted summary judgment for Zappitell and the law
firm, finding that “the alleged conflict of interest cannot in and of itself
form the basis of the legal malpractice lawsuit.” The court also based its
ruling on the element of causation, finding that there was no evidence
that the alleged conflict caused the disparate awards. The court found
that “as a matter of law,” it would require speculation and inference
stacking to establish causation, especially since pain and suffering
damages are discretionary and there are no “specific measures to
quantify such damages.”

   We review a summary judgment de novo. Chhabra v. Morales, 906
So. 2d 1261, 1262 (Fla. 4th DCA 2005) (citation omitted).

      The movant’s burden [in a summary judgment proceeding] is
      to come forward with competent evidence to demonstrate the
      non-existence of a material issue of fact. Once established,
      to avoid summary judgment, the non-moving party must
      then produce evidence demonstrating a genuine issue of
      material fact exists. All doubts and inferences must be
      resolved against the moving party, and if there is the
      slightest doubt or conflict in the evidence, then summary
      judgment is not available.

Bratt v. Laskas, 845 So. 2d 964, 966 (Fla. 4th DCA 2003) (internal
citations omitted). “A party seeking summary judgment in a negligence
action has a more onerous burden than that borne in other types of
cases.” Deese v. McKinnonville Hunting Club, Inc., 874 So. 2d 1282, 1286
(Fla. 1st DCA 2004) (citation omitted).

   The Father asserts that the trial court partly based its summary
judgment on an erroneous finding that a rule of professional conduct
violation can never be the sole basis of a legal malpractice suit. To the
extent that the trial court based its decision on this notion, that would be
error. But we do not read the trial court’s ruling to be that narrow. In

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fact, the trial court was merely recognizing that a violation of a rule of
professional conduct does not constitute negligence per se; rather, it may
be evidence of negligence. Causation and the other elements of a
negligence action must still be established. See Pressley v. Farley, 579
So. 2d 160, 161 (Fla. 1st DCA 1991).

   Nonetheless, the trial court erred for three reasons. First, the trial
court’s decision to grant summary judgment appears to have been based
on the element of causation which the trial court believed to be
unprovable. ‘“In negligence actions Florida courts follow the more likely
than not standard of causation and require proof that the negligence
probably caused the plaintiff’s injury.’” Tarleton v. Arnstein & Lehr, 719
So. 2d 325, 328-29 (Fla. 4th DCA 1998) (quoting Gooding v. Univ. Hosp.
Bldg., Inc., 445 So. 2d 1015, 1018 (Fla. 1984)). To establish legal
malpractice, a party must establish that the negligence “resulted in and
was the proximate cause of loss to the plaintiff.” Dadic v. Schneider, 722
So. 2d 921, 923 (Fla. 4th DCA 1998). The trial court based its summary
judgment on a finding that the Father did not provide sufficient evidence
to establish causation in opposition to Zappitell’s motion for summary
judgment. However, because the non-movant does not have the burden
of proof in a summary judgment proceeding, this was error.

    When a defendant moves for summary judgment in a negligence case
based on causation, summary judgment may not be granted based on a
finding that the plaintiff has not come forward with any evidence of
causation. This improperly shifts the burden to the non-movant to
establish causation. See Webster v. Martin Mem’l Med. Ctr., Inc., 57 So.
3d 896, 897 (Fla. 4th DCA 2011). See also O’Malley v. Ranger Constr.
Indus., Inc., 133 So. 3d 1053, 1056 (Fla. 4th DCA 2014) (“[S]ummary
judgment should not be granted based on a non-movant’s failure to meet
its trial burden of proof on the issue of causation.”). Indeed, ‘“[u]nless a
movant can show unequivocally that there was no negligence or that
plaintiff’s negligence was the sole proximate cause of the injury, courts
will not be disposed to granting a summary judgment in his favor.’”
Kaplan v. Morse, 870 So. 2d 934, 937 (Fla. 5th DCA 2004) (quoting Wills
v. Sears, Roebuck & Co., 351 So. 2d 29, 31 (Fla. 1977)).

   Second, to the extent that the trial court found the burden had shifted
to the Father based on the summary judgment evidence submitted by
the movants, this was error as well. The evidence submitted by Zappitell
and the law firm did not establish a lack of causation. While the
evidence, which included transcripts of the Father’s trial testimony,
arguably showed that Zappitell attempted to rehabilitate the Father on
the areas of testimony related to his relationship with his daughter, the

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evidence did not conclusively establish that Zappitell’s alleged conflict of
interest did not in any way contribute to the outcome of the underlying
wrongful death case. Because Zappitell did not establish a lack of
causation, the summary judgment burden of proof never shifted to the
Father and he was not required to produce evidence showing an issue of
causation.     See Webster, 57 So. 3d at 897 (citation omitted).
Additionally, we are unpersuaded by Zappitell’s argument that lack of
causation was established by the fact that the depositions were not
submitted into evidence during the wrongful death trial.

   Third, in its order granting summary judgment, the trial court found
causation would be based on speculation and inference stacking. We
disagree. The Father’s theory of causation was not so attenuated that it
required speculation or inference stacking. See Koelling v. CSX Transp.,
Inc., 673 So. 2d 67, 67-68 (Fla. 5th DCA 1996) (affirming summary
judgment where plaintiff’s theory of causation of vehicle collision with
train involved an attenuated series of steps). Here, the Father’s theory of
causation does not involve numerous steps. He is instead making the
simple argument that his attorney’s conflict of interest compromised his
attorney’s preparation and presentation of his case, which led to the
hugely disparate awards.2

   We recognize that ‘“[s]ummary judgments have made a very
substantial contribution to the speedy and efficient administration of
justice,’” but ‘“the right to trial by jury is a concept so deeply imbedded in
our jurisprudence that only in those cases where there is no issue
whatever of a material fact and it is made to appear that the moving
party is entitled to a judgment as a matter of law should one be
granted.’” Bianchi v. Garber, 528 So. 2d 969, 970 (Fla. 4th DCA 1988)
(quoting Majeske v. Palm Beach Kennel Club, 117 So. 2d 531, 534 (Fla.
2d DCA 1959)). Summary judgments in negligence cases are rarely
warranted and the record before us is unconvincing that an exception to
the general rule should apply.

   Because it was error in this case to base summary judgment on
causation, we reverse.

    Reversed and remanded for further proceedings.

2 Indeed, Zappitell himself voiced concern over the “unconscionable” low ball
verdict obtained by the Father. Zappitell filed a post-verdict motion for additur,
arguing that the Father’s testimony under cross-examination was “negative,”
thereby producing an “overly angry” jury who felt the need to “punish” the
Father by meting out glaringly lopsided awards.

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STEVENSON and TAYLOR, JJ., concur.

                         *           *    *

  Not final until disposition of timely filed motion for rehearing.




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