               Case: 13-14064       Date Filed: 06/19/2015      Page: 1 of 26


                                                                     [DO NOT PUBLISH]



                 IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                    No. 13-14064
                              ________________________

                         D.C. Docket No. 1:12-cv-21711-MGC


INLET CONDOMINIUM ASSOCIATION, INC.,

                                                         Plaintiff - Appellant,

versus

CHILDRESS DUFFY, LTD, INC.,

                                                         Defendant - Appellee.

                              ________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                            ________________________

                                      (June 19, 2015)

Before WILLIAM PRYOR and JORDAN, Circuit Judges, and WALTER, * District
Judge.

PER CURIAM:


*
 Honorable Donald E. Walter, United States Senior District Judge for the Western District of
Louisiana, sitting by designation.
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      This appeal requires us to decide whether Florida’s judgmental immunity

doctrine, which provides malpractice immunity to attorneys making “[g]ood faith

tactical decisions or decisions [ ] on a fairly debatable point of law,” Crosby v.

Jones, 705 So. 2d 1356, 1358 (Fla. 1998), applies to a law firm’s decision not to

use a particular expert witness at trial in support of a hurricane damage claim.

Although the post-Crosby decisions of Florida’s intermediate courts of appeal do

not appear to apply the doctrine consistently, we affirm because the district court’s

ultimate ruling is supported by the Florida Supreme Court’s articulation of the

doctrine and the interpretation and application of the doctrine by the Third District

Court of Appeal, whose precedent would have governed had this diversity case

been filed in state court.

                                         I

      In 2007, Inlet Condominium Association, represented by Childress Duffy

Ltd., filed a breach of contract lawsuit against Citizens Property Insurance

Company seeking to recover for damages allegedly caused by Hurricane Frances in

September of 2004. Inlet’s windstorm policy with Citizens had a coverage limit of

$21.9 million and a deductible of $1.095 million. Before the suit was filed, Inlet

and Citizens had failed to settle their differences; Inlet had demanded a total of

$4.6 million, but Citizens had only offered $750,000. When Inlet did not recover




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all the damages it sought at trial, it filed this legal malpractice action against

Childress Duffy.

                                          A

      Inlet, located in New Smyrna Beach, was built in the 1980s and opened in

1986. Its six elevators were installed by Otis Elevator Company. According to

Otis, those elevators have an average lifespan of 20 years. Since August of 1999,

Inlet had a maintenance and service contract with Otis. That contract covered

general repairs to the elevators necessitated by normal wear and tear.

      Inlet’s elevators, including their vents, were damaged during Hurricane

Frances in September of 2004. After Hurricane Frances, and between October and

December of 2004, Otis repaired Inlet’s elevators to get them back to functioning

capacity. Those repairs cost Inlet a little over $56,000.

      Inlet reported its hurricane damage to Citizens in May of 2005. At first,

Citizens refused to pay anything, maintaining that Inlet’s damages did not exceed

the policy’s deductible. Inlet hired Dietz International Inc., a public adjuster, which

in turn retained Dr. Anurag Jain. Dr. Jain, a structural engineer consultant with

wind expertise, has inspected several hundred buildings affected by hurricanes.

      Dr. Jain visited Inlet in May of 2005 and October of 2006 to assess the

damage caused by Hurricane Frances. By the time Dr. Jain was able to inspect

Inlet’s elevators, however, Otis had already repaired most of the physical damage


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to the vents, and, to make matters worse, Inlet had failed to keep the damaged

vents.

                                          B

         In February of 2009, Inlet executed a new contract with Otis to modernize

the building’s elevators. Discussions and negotiations regarding the elevator

modernization project had been in the works since 1999, years before Hurricane

Frances struck. Otis account representative Emily Ihde explained, based on her

attendance at several Inlet board meetings, that the project was necessary because

the elevator equipment was outdated, and it was time for modernization.

         The 2009 contract quoted the cost of the modernization project at

$1,511,078. Inlet provided a copy of the contract to Childress Duffy in April of

2009, about a month before the trial against Citizens began.

                                          C

         Inlet’s lawsuit against Citizens proceeded to trial in June of 2009. One of

Inlet’s claims was for damage to its elevators. At trial, Childress Duffy presented

evidence of the damage caused to the elevators by Hurricane Frances, including the

testimony of several unit owners and Inlet board members regarding how the

elevators functioned before the storm and how they functioned after the storm. For

example, Myron Cutler, a unit owner and member of Inlet’s board testified that the

elevators worked well before Hurricane Frances, but after they were repaired


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following the storm they were always out of service and repairs by Otis would only

keep them working for a short period of time. Geoffrey Applegate, a former

president of Inlet’s board, also testified about the damage to the building and

elevators. He said that Inlet paid $59,996.11 to Otis for repairs to the elevators, but

explained that those repairs were not a permanent fix.

      As proof of Inlet’s damages with respect to the elevators, Childress Duffy

introduced into evidence the 2009 modernization contract between Inlet and Otis.

But when Mr. Applegate attempted to testify that the modernization project was

necessary because Otis had informed him that other repairs would be unsuccessful

in the long term, the trial court sustained Citizens’ hearsay objection.

      Dr. Jain, the wind expert and forensic engineer who initially inspected

Inlet’s hurricane damage, also testified regarding Inlet’s elevator damage at trial.

Dr. Jain explained that, during his inspection, he observed damage to the elevator

vents, which created an opening where rain from the hurricane could have gotten

inside the building. He opined that the water inside the elevator shaft got into the

electronics and damaged the elevators to the extent that they stopped functioning.

On cross examination, however, Dr. Jain admitted he was not an elevator expert or

a mechanical engineer.

      Citizens’ primary defense in the case with respect to the elevators was that

Inlet was requesting damages for replacements and repairs that the association


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needed before Hurricane Frances. Citizens had deposed several individuals who

could testify to the state of the elevators before the hurricane. Ms. Ihde had

testified that the modernization project was needed because the elevator equipment

was outdated. Barbara Garwood, another former Inlet board president, had stated

in her deposition that she frequently used the stairs to get to and from her

apartment at Inlet because the elevators were unreliable and in overall bad

condition. Inlet’s head of maintenance, David Dexter, stated in his deposition that

before the storm Inlet had been having a lot of problems with its elevators. Inlet’s

corporate representative, Joseph Maddox testified that before Hurricane Frances,

Otis had to service Inlet’s elevators on a monthly basis. And the report of Citizens’

engineering expert similarly indicated that the need for the elevator modernization

and the elevator damage Dr. Jain testified to was “indicative of [the] elevators

being poorly maintained in [the beachfront] environment as opposed to being

related to storm damage.”1

         Citizens, however, did not ultimately need to put on any of this evidence in

its own case concerning the elevator damage claim. At the close of Inlet’s case,

Citizens successfully moved for a directed verdict on Inlet’s elevator damage

claim.




         1
             Citizens’ engineering expert would have testified consistently with the report at trial.
                                                     6
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      Citizens argued that Inlet had failed to present sufficient evidence that the

elevator damage was caused by Hurricane Frances, partly because Dr. Jain was not

a qualified elevator expert and partly because Dr. Jain examined the damage after

the initial repairs had already been made and the elevators were operative. The trial

court granted Citizens’ motion. Although the trial court acknowledged that there

was evidence of damage to the elevators, it explained Inlet had failed to present

evidence that all of the elevators had to be completely replaced due to the storm:

“Seems to me that you have got to show that all six [elevators] are broken and need

to be repaired and there is no other way to repair them, so you should get brand

new ones. . . . [Y]ou know, if they sink your seventeen-foot boat, you can’t go out

and get a forty-footer, you got to get a seventeen-footer. I can’t tell that from

here.” In other words, the trial court ruled that there was insufficient evidence that

any damage from Hurricane Frances required the complete replacement of the

elevators. So Inlet’s $1.5 million claim for elevator damage never reached the jury.

      At the end of the trial, the jury awarded Inlet $3,335,610 in excess of its

$1,095,000 deductible on its other (i.e., non-elevator related) hurricane damage

claims. The trial court subsequently awarded Inlet pre-judgment interest in the

amount of $1,258,681.17. This total sum was more than Inlet would have received

had Citizens accepted its $4.6 million settlement offer prior to trial.




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        The trial court entered final judgment on July 2, 2009. Citizens appealed to

the Fifth District, challenging only the trial court’s award of pre-judgment interest.

On May 6, 2010, following mediation, Inlet and Citizens resolved all matters for

the sum of $1.825 million. The Fifth District dismissed the appeal on June 1,

2010.

                                          D

        On May 4, 2012, Inlet sued Childress Duffy for legal malpractice in federal

district court in the Southern District of Florida, alleging that the law firm should

have presented expert testimony to support the claim for hurricane damage to the

elevators. After discovery, the district court granted Childress Duffy’s motion for

summary judgment.

        The district court concluded that Inlet filed its malpractice action within

Florida’s two-year statute of limitations, see Fla. Stat. § 95.11(4)(a), because the

action was filed within two years of the date that Inlet and Citizens executed the

settlement agreement. It also rejected Childress Duffy’s argument that Inlet had

abandoned its legal malpractice claim by settling with Citizens for $1.825 during

the pendency of the appeal.

        But the district court ruled that Childress Duffy was entitled to summary

judgment based on Florida’s doctrine of judgmental immunity. Noting that Inlet

had not claimed (or presented any evidence) that Childress Duffy had not acted in


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good faith, the district court held that the matter in dispute—Childress Duffy’s

presentation of the claim for elevator damage—was a “fairly debatable” or

“unsettled” area of law because there was no Florida case “requiring an expert on

every element of damages, or a case forbidding an expert to attempt to opine in

related fields, let alone a case requiring a particular expert in a particular field.”

According to the district court, there was no settled authority that Childress

Duffy’s “tactical decision to proffer a wind expert in lieu of a representative from

Otis . . . or other engineering expert was prohibited.” The district court noted that

Inlet’s expert and Childress Duffy’s expert disagreed on whether certain evidence

was required for the elevator damage claim to get to a jury, but thought that this

disagreement “made it apparent that ‘reasonable doubt may be entertained by well-

reasoned lawyers,’” and as such, the area of law was unsettled. And because the

doctrine of judgmental immunity applied—due to Childress Duffy’s exercise of

reasonable judgment—as a matter of law, Childress Duffy had not breached any

duty it owed to Inlet.

                                         II

      In a diversity case like this one, we are required to apply the law as declared

by the Florida Supreme Court. Tampa Bay Water v. HDR Eng’g, Inc., 731 F.3d

1171, 1177 (11th Cir. 2013). Absent authority from the Florida Supreme Court, we

look to Florida’s intermediate appellate courts to determine issues of state law as


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we believe the Florida Supreme Court would. State Farm Fire & Cas. Co. v.

Steinberg, 393 F.3d 1226, 1231 (11th Cir. 2004).

      Exercising de novo review, see Jurich v. Compass Marine, Inc., 764 F.3d

1302, 1304 (11th Cir. 2014), we affirm the grant of summary judgment in favor of

Childress Duffy.    We agree with the district court that judgmental immunity

applies to the firm’s performance in this case, though for somewhat different

reasons.

                                         A

      Inlet first argues broadly that judgmental immunity applies only when an

attorney makes a decision on a “fairly debatable point of law” or an “unsettled area

of law.” According to Inlet, the doctrine does not apply to an attorney’s tactical or

strategic decision, even if that decision is made in good faith. We disagree, and

begin our discussion by summarizing the Florida Supreme Court’s 1998 decision

in Crosby, which cemented the judgmental immunity doctrine in Florida.

      Crosby explained that in Florida an “attorney may be held liable for

damages incurred by a client based on the attorney’s failure to act with a

reasonable degree of care, skill, and dispatch.” Crosby, 705 So. 2d at 1358. “This

does not mean, however, that an attorney acts as an insurer of the outcome of a

case.” Id. The Florida Supreme Court therefore explained that “[g]ood faith tactical

decisions or decisions made on a fairly debatable point of law are generally not


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actionable under the rule of judgmental immunity.” Id. (emphasis added). To see

what that statement means in context, we look to the facts in Crosby.

      Samuel Crosby represented Patricia Jones, who was injured in a car crash, in

her suit against the other driver and the driver’s employer. Id. at 1357. Ms. Jones

settled with the driver’s insurer, and based on Mr. Crosby’s advice, she released

the driver in a document expressly providing that she was not releasing the driver’s

employer. She then moved to dismiss with prejudice her claims against the driver.

Id. At the time, in Florida the law was unclear as to whether dismissing a case with

prejudice against the tortfeasor eviscerated a claim against the principal of the

tortfeasor. Id. The trial court entered summary judgment in favor of the employer,

finding that Ms. Jones’ dismissal with prejudice with respect to the driver

constituted an adverse adjudication on the merits and barred further action against

the employer. Id. Ms. Jones then sued Mr. Crosby for legal malpractice. Id.

      The trial court granted summary judgment in favor of Mr. Crosby, citing

Florida’s judgmental immunity doctrine. Id. The Second District reversed, stating

that because the relevant state law was unclear at the time Mr. Crosby represented

Ms. Jones, it was up to a jury to determine whether Mr. Crosby had exercised

reasonable judgment in advising Ms. Jones to dismiss the suit against the driver.

Id. The Florida Supreme Court reversed the Second District, and ruled that the trial

court had properly granted summary judgment because judgmental immunity


                                        11
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insulated Mr. Crosby from liability. Id. at 1359. Providing judgmental immunity

for an attorney’s exercise of judgment in an unsettled area of law, Crosby

explained, “is premised on the understanding that an attorney, who acts in good

faith and makes a diligent inquiry into an area of law, should not be held liable for

providing advice or taking action in an unsettled area of law.” Id. at 1358.

      Judgmental immunity, according to Crosby, generally applies to “[g]ood

faith tactical decisions or decisions made on a fairly debatable point of law.” Id.

(emphasis added).      But Crosby only involved a decision made on a fairly

debatable point of law, and the Florida Supreme Court has not addressed

judgmental immunity in the 17 years since it decided Crosby. Neither have we.

See Littell v. Law Firm of Trinkle, Moody, Swanson, Byrd & Colton et al., 345 F.

App’x 415, 421 (11th Cir. 2009) (not reaching applicability of doctrine due to

affirmance on other grounds).

      Inlet argues that, because Crosby only involved a decision on a fairly

debatable point of law, the language in the opinion referring to good faith tactical

decisions constitutes dicta. Inlet asserts that judgmental immunity applies only to

“judgments made based on unsettled law” after diligent inquiry—i.e., judgments

concerning the interpretation of the law—and does not and should not extend to an

attorney’s tactical decisions, even if made in good faith. See Brief for Appellant at

30-38.


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      Inlet’s argument is not completely without merit; indeed, as Inlet notes,

some of Florida’s intermediate appellate courts (as well as some federal district

courts) have suggested or stated that Crosby does not extend to good faith tactical

decisions. See, e.g., Sauer v. Flanagan & Maniotis, P.A., 748 So. 2d 1079, 1081-82

(Fla. 4th DCA 2000) (declining to apply judgmental immunity to a law firm’s

“judgment call” and advice regarding a settlement offer because it could “discern

no basis for concluding that an attorney is insulated from liability for failing to

exercise ordinary skill and care in resolving settlement issues”); FDB II Assocs.,

LP v. Moore & Van Allen, PLLC, No. 13-81152-Civ, 2014 WL 6682624, *4 (S.D.

Fla. Nov. 25, 2014) (“Following Crosby, Florida appellate courts have consistently

limited application of the [judgmental immunity] rule to cases involving

professional judgment on fairly debatable or unsettled points of law, and have

specifically rejected the suggestion that the doctrine more broadly applies to

insulate any good faith exercise of professional judgment.”).

      But Inlet is not entirely right either. Consistent with the language of Crosby,

several of Florida’s intermediate appellate courts have held or stated that

judgmental immunity also applies to an attorney’s good faith tactical decisions.

See, e.g., Hanson v. Fowler, White, Burnett, P.A., 117 So. 3d 1127, 1133 (Fla. 3d

DCA 2012) (“This doctrine applies in instances where the attorney makes ‘[g]ood

faith tactical decisions or decisions made on a fairly debatable point of law.’”);


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Natural Answers, Inc. v. Carlton Fields, P.A., 20 So. 3d 884, 888 (Fla. 3d DCA

2009) (“Moreover, the doctrine of judgmental immunity prevents lawsuits based

on an attorney’s good faith tactical decisions.”); Air Turbine Tech., Inc. v. Quarles

& Brady, LLC, No. 4D14-110, 2015 WL 3480236, *6 (Fla. 4th DCA June 3, 2015)

(“Good faith tactical decisions are generally not actionable under the rule of

judgmental immunity.”) (internal quotations and citations omitted); Proto v.

Graham, 788 So. 2d 393, 395 (Fla. 5th DCA 2001) (“Good faith tactical decisions

are not actionable in Florida.”).

      In    Natural    Answers,     a   corporation     which     lost   a   breach    of

contract/promissory estoppel federal lawsuit related to a corporate investment sued

its attorneys, alleging in part that they had “committed litigation malpractice by not

adequately defending [the corporation] against [the other party’s] motion for

summary judgment in the federal litigation.” 20 So. 3d at 887. The trial court

granted summary judgment in favor of the attorneys, finding that their conduct did

not proximately cause the corporation’s loss. Id. The Third District agreed with

the trial court on the proximate cause issue, but added an alternative ground for

affirming: “Moreover, the doctrine of judgmental immunity prevents lawsuits

based on an attorney’s good faith tactical decisions.” Id. at 888. 2


      2
         Inlet asserts that the only holding in Natural Answers concerned the absence of
proximate cause, and that any discussion of judgmental immunity was dicta. See Brief for
Appellant at 35 & n.9. Under Florida law, however, alternative holdings constitute binding
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       Where Florida’s intermediate appellate courts are divided as to how to apply

a principle of law, “we look to the decisions of the Florida appellate court that

would have had jurisdiction over an appeal in this case had it been filed in state

court.” Bravo v. United States, 532 F.3d 1154, 1164 (11th Cir. 2008) (citing

Farmer v. Travelers Indem. Co., 539 F.2d 562, 563 (5th Cir. 1976), and Peoples

Bank of Polk Cnty. v. Roberts, 779 F.2d 1544, 1546 (11th Cir. 1986)). This case

was filed in the Miami Division of the Southern District of Florida; had it been

filed in state court in Miami, the Third District would have had jurisdiction over

any appeal. As a result, we are guided by the Third District’s decision in Natural

Answers. And because Natural Answers expressly applied judgmental immunity to

an attorney’s good faith tactical decision, we reject Inlet’s argument that the

doctrine is limited to judgments on an unsettled area of law or a fairly debatable

point of law after diligent inquiry.

       We recognize Inlet’s concern that, if judgmental immunity is broadly and

indiscriminately applied to all good faith tactical decisions, a number of

malpractice actions against Florida attorneys might be curtailed or eliminated. See

Brief for Appellant at 37, 39. See also Dan B. Bobbs et al., The Law of Torts § 721

(2d ed. 2014) (“[C]ourts often say that lawyers are not liable for good-faith errors



precedent. See Parsons v. Fed. Realty Corp., 143 So. 912, 920 (Fla. 1932) (on rehearing);
Paterson v. Brafman, 530 So. 2d 499, 501 n.4 (Fla. 3d DCA 1988). So the Third District’s ruling
on judgmental immunity, though very brief, is a holding.
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in judgment, but taken literally this would virtually eliminate all lawyer liability.”).

But the Florida Supreme Court’s description of judgmental immunity includes

“good faith tactical decisions,” Crosby, 705 So. 2d at 1358, and Natural Answers

has applied the doctrine to tactical decisions by attorneys. It is not for us to rule

otherwise.

                                           B

      Inlet also makes a number of other arguments challenging the district court’s

application of Florida’s judgmental immunity doctrine. Inlet first contends that the

lack of an established method to try a first-party hurricane case does not constitute

an unsettled area of law. Inlet then asserts that judgmental immunity does not

apply where there is evidence, if believed, that the attorneys’ conduct fell below

the reasonable standard of care. Finally, Inlet argues that the district court erred in

concluding that it had failed to allege or present sufficient evidence that Childress

Duffy had not acted in good faith. We are not persuaded that the district court

committed reversible error.

                                           1

      Even if we agreed with Inlet that the lack of an established method to try a

first-party hurricane case does not constitute an unsettled area of law, this would

not aid Inlet. Crosby states that there is judgmental immunity for decisions made

by attorneys on a fairly debatable point of law or attorneys’ good faith tactical


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decisions, and Natural Answers applies the doctrine to attorneys’ good faith

tactical decisions. Furthermore, the most recent intermediate appellate court

decision in Florida to address judgmental immunity applied the doctrine to shield

from malpractice liability an attorney’s good faith tactical decision to not call an

expert witness to testify at a fee hearing. See Air Turbine Tech., No. 4D14-110,

2015 WL 3480236 at *7. As we conclude that Childress Duffy’s decisions on how

to prosecute Inlet’s elevator damage claim constituted good faith tactical choices,

we need not address whether the lack of an established method to try a particular

type of case would be considered an unsettled area of law.

                                         2

      We next turn to Inlet’s contention that judgmental immunity does not apply

where there is evidence, if believed, that the attorneys’ conduct fell below the

standard of reasonable care. In support of this contention, Inlet cites and relies

primarily on the Fourth District’s decision in Sauer, 748 So. 2d at 1081-82

(refusing to extend Crosby to malpractice claim based on attorneys’

recommendation that client reject settlement offer because attorneys’ “judgment

call . . . fell below the standard of reasonable care”). Although Sauer provides

support for Inlet’s contention, its holding and language run counter to the Fourth

District’s subsequent decision in Air Turbine Tech., No. 4D14-110, 2015 WL




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3480236 at *6-7, and the Third District’s decision in Natural Answers, 20 So. 3d at

888, which we are required to follow under Bravo, 532 F.3d at 1164.

      In addition, Sauer must also be read in light of its facts. In Sauer, the Fourth

District reversed the trial court’s grant of summary judgment in favor of the law

firm under the judgmental immunity doctrine. Because there were “substantial fact

issues to be resolved by trial” as to whether the attorneys had acted in good faith,

and ergo, failed to meet the reasonable standard of care, the court held that

judgmental immunity did not apply. 748 So.2d at 1080. The facts of Sauer, as set

out below, are relevant to the Fourth District’s discussion of the doctrine and

ultimate refusal to apply it to the law firm.

      Ms. Sauer hired Flanagan and Maniotis, P.A. (“F&M”) to represent her in a

negligence claim against her employer, after having fallen at work and developing

reflex sympathetic dystrophy. Id. Before trial, her employer offered her $ 1 million

to settle the case. Id. According to Ms. Sauer, F&M dissuaded her from taking the

settlement offer and told her “there was no potential downside in rejecting the

offer” because “there was no way they were going to lose at trial” and that she

would be “crazy” to take the offer. Id. Ms. Sauer proceeded to trial and lost. After

the trial, Ms. Sauer filed suit against F&M for legal malpractice and retained a

legal expert who opined that F&M did not properly prepare for Ms. Sauer’s case

by failing to have an expert testify as to the standard of care or examine Ms.


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Sauer’s shoe. The legal expert also opined that if F&M had advised Ms. Sauer that

she had a 99% chance of winning the dispute at trial, such conduct breached its

duty of care.

        F&M fervently disputed Ms. Sauer’s account of events. According to F&M,

the firm informed Ms. Sauer of the risks of going to trial. Id. at 1080-81. F&M

argued it should be insulated from liability under the judgmental immunity

doctrine because it was “making a ‘judgment call’ in advising that the client reject

a settlement offer.” Id. at 1081. The Fourth District concluded, however, that,

because there were material issues of fact as to whether the firm’s conduct fell

below the reasonable standard of care, summary judgment was improper. Id. at

1082.

        F&M sought immunity, the Fourth District explained, “notwithstanding any

validity to the claim that [it] breached a duty of reasonable care to [its] client in

misleading her and failing to properly advise and furnish her with the information

necessary for her to make an informed decision.” Id. at 1081. The Fourth District

ultimately denied summary judgment, without citing to the legal expert’s affidavit,

because “there [was] evidence, if believed, that the attorneys[’] [conduct] fell

below the standard of reasonable care.” Id. at 1082.

        The Fourth District’s decision in Sauer is not as broad as Inlet suggests. It

should not be read as blankly rejecting judgmental immunity as a matter of law for


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good faith tactical decisions or as holding that judgmental immunity applies only

when an attorney makes a diligent inquiry into an unsettled area of law.

         First, a recent decision by the Fourth District, dealing with whether an

attorney’s decision not to call an expert witness to testify as to legal fees in federal

district court constituted legal malpractice, applied Florida’s judgmental immunity

doctrine to what it deemed was the attorney’s good faith tactical decision to not

have an expert testify. 3 See Air Turbine Tech., No. 4D14-110, 2015 WL 3480236,

at *6-7. In Air Turbine, the Fourth District noted that in federal court an expert was

not required to testify to legal fees and specifically held that “[t]he decision to not

call a fee expert in federal court was the essence of a good faith tactical decision

that is protected under the judgmental immunity.” Id. at *7. The Fourth District,

moreover, recognized that the judgmental immunity doctrine, as articulated by the

Florida Supreme Court, in Crosby, applied to good faith tactical decisions. Id. at

*6. After concluding, that the attorney in the case “made the tactical decision not to

hire an expert witness on the issue of reasonableness of attorney’s fees,” the Fourth

District applied judgmental immunity to insulate the attorney from the malpractice

claim.

         Second, it appears to us that in Sauer there was a dispute of material fact as

to whether F&M had acted in good faith, a precondition of judgmental immunity.

         3
          We have considered Inlet’s interpretation of Air Turbine, as set forth in Inlet’s Rule
28(j) letter dated June 15, 2015.
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If the facts were as Ms. Sauer alleged, F&M could not have acted in good faith.

Viewing the evidence in the light most favorable to Ms. Sauer, the Fourth District

did not believe F&M had acted “in the honest belief that [its] advice [was] well-

founded and in the best interest of [its] client.” Id. at 1082. And because F&M

sought immunity “notwithstanding any validity to the claim . . . [that it] misle[d]

[Ms. Sauer] and fail[ed] to properly advise” her, the Fourth District was unwilling

to grant summary judgment. Id. at 1081-82. Our reading of Sauer, therefore, does

not support Inlet’s contention that summary judgment was improper because there

is a material dispute as to whether Childress Duffy’s prosecution of the elevator

damage claim fell below the reasonable standard of care. 4

                                               3

       According to Inlet, its malpractice claim should be resolved by a jury

because the parties’ legal experts disagreed about the propriety of Childress

Duffy’s conduct; Inlet’s legal expert opined that Childress Duffy’s representation

of its elevator damage claim fell below the standard of care, while the firm’s legal

expert opined that Childress Duffy exercised proper professional judgment in

making a “wise tactical decision.” We are not persuaded by Inlet’s argument.



4
  It is perhaps also worth noting that if Ms. Sauer’s version of events were true, F&M’s conduct
could have potentially violated Florida’s Rules of Professional Conduct. See Fla. R. Prof.
Conduct R. 4-1.4(b) (requiring attorneys to “explain a matter to the extent reasonably necessary
to permit the client to make [an] informed decision regarding the representation”).
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      The parties in Natural Answers also disputed whether the attorneys had

breached the reasonable standard of care. See 20 So. 3d at 888-89. The plaintiff in

Natural Answers, much like Inlet, “offered an ‘expert’ affidavit of [an] attorney,”

who “speculated that in his opinion, had the law firms conducted the litigation

differently, the outcome of the case would have favored [the plaintiff claiming

malpractice].” Id. at 888. The Third District concluded, however, that this expert

affidavit did not create a genuine issue of material fact because it simply opined

without factual support that the attorneys’ conduct fell below the reasonable

standard of care and granted summary judgment in favor of the attorneys. Id. at

888-89. We see no reason why the same rationale does not apply here.

      We also disagree with Inlet’s suggestion that a dispute concerning whether

an attorney’s performance met the standard of care necessarily precludes

judgmental immunity. To establish a claim for legal malpractice, a “plaintiff must

plead and prove . . . : (1) the attorney’s employment; (2) the attorney’s neglect of a

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

client’s loss.” Steele v. Kehoe, 747 So. 2d 931, 933 (Fla. 1999). An attorney

breaches his duty to his client when the attorney’s performance falls below the

reasonable standard of care. See Crosby, 705 So. 2d at 1358. The issue of breach

is ordinarily one for a jury, see Keramati v. Schackow, 553 So. 2d 741, 746 (Fla.

5th DCA 1989), and we can assume here (without deciding) that the opinion of


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Inlet’s legal expert would allow a jury to find a breach by Childress Duffy. But

that does not help Inlet avoid judgmental immunity.

      The general rule in Florida is that, “[c]onceptually, the question of the

applicability of . . . immunity does not even arise until it is determined that a

defendant otherwise owes a duty of care to the plaintiff and thus would be liable in

the absence of such immunity.” Kaisner v. Kolb, 543 So. 2d 732, 734 (Fla. 1989)

(addressing governmental immunity) (citations and internal quotation marks

omitted). See also Breaux v. City of Miami Beach, 899 So. 2d 1059, 1063 (Fla.

2005) (“In cases involving governmental tort liability, we generally determine

whether the defendant owes a duty of care to the plaintiff before we address

whether the governmental entity is immune from liability.”); Wallace v. Dean, 3

So. 3d 1035, 1044 (Fla. 2009) (same). This indicates that the question of whether

Childress Duffy’s conduct fell below the reasonable standard of care (the breach

question) is necessarily distinct from the question of whether judgmental immunity

applies. We can assume, as Inlet asks us to do, that Childress Duffy breached its

duty of care, and still conclude that the firm’s conduct constituted a good faith

tactical decision deserving of judgmental immunity.

                                          4

      Inlet’s final argument is that the district court erred in ruling that there was

no genuine issue of material fact as to whether Childress Duffy had acted in good


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faith in its prosecution of Inlet’s elevator damage claim. The district court

concluded that Childress Duffy made a good faith tactical decision. Finding that

Inlet had failed to allege or put on evidence that Childress Duffy did not act in

good faith, the district court concluded that the firm’s prosecution of Inlet’s

elevator damage claim was a composition of good faith tactical decisions. We

agree.

         We start out with the Florida Supreme Court’s definition of good faith:

“‘Good faith is defined as ‘an honest belief. . . . [h]onesty of intention, and

freedom from knowledge of circumstances which ought to put the holder upon

inquiry. . . . [I]t describe[s] that state of mind denoting honesty of purpose . . . and,

generally speaking, means being faithful to one’s duty or obligation.’” Florida

Bar v. Jackson, 494 So. 2d 206, 209 (Fla. 1986) (quoting Black’s Law Dictionary

623-24 (5th ed. 1979)).

         On appeal, Inlet argues that it did not concede that Childress Duffy had

acted in good faith and that an allegation of bad faith should be inferred from the

general allegations in its complaint and its response to Childress Duffy’s motion

for summary judgment. But Inlet’s complaint never mentions whether the firm

acted in good faith, and Inlet’s opposition to the summary judgment motion merely

lists good faith as a prerequisite to obtain judgmental immunity; it does not discuss

whether Childress Duffy’s decisions in presenting Inlet’s elevator damage claim


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constituted or demonstrated a lack of good faith. In fact, Inlet argued that

judgmental immunity did not apply because firm’s decisions were not decisions

made on a fairly debatable point of law or in an unsettled area of law. In sum, Inlet

did not sufficiently argue or raise the issue of good faith in the district court.

      Inlet nevertheless claims that several of its allegations, taken together,

constitute a claim of bad faith: Childress Duffy’s failure to contact Otis to ascertain

what testimony it could provide; Childress Duffy’s failure to retain an independent

elevator expert; and Childress Duffy’s failure to explain why it would have

submitted to the jury a claim it later described as “overreaching.” Even if Inlet is

correct about the collective meaning of these allegations, at summary judgment a

plaintiff cannot rely on its allegations; it must provide evidence to support those

allegations. See Doe v. Drummond Co., 782 F.3d 576, 604 (11th Cir. 2015)

(“Plaintiffs could not rely upon mere allegations to survive summary judgment, but

were required to either point out evidence in the record or provide additional

evidence in support of their claims sufficient to withstand a directed verdict

motion.”). And this Inlet failed to do.

      Inlet’s legal expert, Theodore Corless, failed to offer any opinion with

respect to whether Childress Duffy acted in good faith. Consistent with Inlet’s

broad view that judgmental immunity only applies where there are unsettled

questions of law, Mr. Corless opined only that Childress Duffy’s “failure to offer


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some form of real evidence” and engage proper experts to testify to the elevator

damage fell below the reasonable standard of care.

       Even a liberal reading of the complaint, Inlet’s response to the summary

judgment motion, and the report of Inlet’s expert do not amount to an allegation of

bad faith, but rather a claim that the firm breached its duty of care. And Inlet

cannot now argue for the first time on appeal that Duffy did not act in good faith.

See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004)

(“This Court has ‘repeatedly held that an issue not raised in the district court and

raised for the first time in an appeal will not be considered by this [C]ourt.’”)

(internal quotations and citations omitted).

                                               III

       For the reasons stated above, we affirm the district court’s grant of summary

judgment in favor of Childress Duffy. 5



       AFFIRMED.




5
   Inlet also appealed the district court’s striking of its claim for punitive damages. Because we
affirm the district court’s grant of summary judgment on the legal malpractice claim, Inlet’s
claim for punitive damages is moot. See Engle v. Liggett Group, Inc., 945 So. 2d 1246, 1262-63
(Fla. 2006) (“A finding of liability necessarily precedes a determination of [punitive] damages . .
. .”). See also Marshall v. City of Cape Coral, Fla., 797 F.2d 1555, 1562 (11th Cir. 1986) (“Our
decision upholding summary judgment [in favor of the appellee] moots any claim to punitive
damages.”).


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