              NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                     MOTION AND, IF FILED, DETERMINED

                                          IN THE DISTRICT COURT OF APPEAL
                                          OF FLORIDA
                                          SECOND DISTRICT

CHRISTINE HERENDEEN, as trustee of        )
the bankruptcy estate of Christopher X.   )
Hutchins,                                 )
                                          )
             Appellant,                   )
                                          )
v.                                        )      Case No. 2D15-4300
                                          )
SAMUEL R. MANDELBAUM, ESQ.;               )
KEVIN J. FITZSIMMONS, ESQ.;               )
JOHN N. CAIN, ESQ.; and                   )
MANDELBAUM, FITZSIMMONS &                 )
HEWITT, P.A.,                             )
                                          )
             Appellees.                   )
                                          )

Opinion filed October 25, 2017.

Appeal from the Circuit Court for
Hillsborough County; Cheryl K. Thomas,
Judge.

Scott A. Arthur and Lee D. Gunn, IV, of
Gunn Law Group, P.A., Tampa, for
Appellant.

Scott A. Cole and Melinda Thornton of Cole,
Scott & Kissane, P.A., Miami; and Joseph T.
Kissane and Paula A. Post of Cole, Scott &
Kissane, P.A., Jacksonville, for Appellees.


LaROSE, Chief Judge.
              Christine Herendeen, the trustee for Christopher Hutchins' bankruptcy

estate, appeals a final summary judgment entered in favor of Samuel Mandelbaum,

Kevin Fitzsimmons, John Cain, and Mandelbaum, Fitzsimmons & Hewitt (collectively,

"Mandelbaum"). Mr. Hutchins retained Mandelbaum to defend him in a wrongful death

lawsuit. Ms. Herendeen later sued Mandelbaum for legal malpractice, claiming that

Mandelbaum failed to defend against a punitive damages claim asserted against Mr.

Hutchins.

              Ms. Herendeen maintains that the trial court improperly granted summary

judgment. She argues that, as trustee, she can seek damages for the bankruptcy

estate caused by a negligent lawyer. She also argues that the discharge of the

wrongful death judgment by the bankruptcy court did not extinguish her cause of action

for legal malpractice.

              The trial court erred in concluding that the bankruptcy discharge

extinguished a debt so as to preclude Ms. Herendeen's lawsuit. The trial court also

erred in concluding that public policy barred Ms. Herendeen's effort to recover

damages. Ms. Herendeen should be allowed to pursue her cause of action for legal

malpractice against Mandelbaum. Accordingly, we reverse.

                                  Standard of Review

              A trial court should grant a motion for summary judgment only if there are

no genuine issues as to any material fact and the moving party is entitled to a judgment

as a matter of law. Fla. R. Civ. P. 1.510(c). We review a summary judgment de novo.

See Volusia Cty v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000).




                                           -2-
                                       Background

              Mr. Hutchins accidentally shot and killed Jessica Leigh Fraccalvieri. He

pleaded guilty to manslaughter by culpable negligence. The trial court sentenced him to

fifteen years in prison.

              Ms. Fraccalvieri's estate sued Mr. Hutchins for wrongful death. He hired

Mandelbaum to represent him. Because Mr. Hutchins was in prison, Mandelbaum

decided not to have him attend the trial. Apparently, the defense was "to be as contrite

and as apologetic as possible because [there was] no other way to defend this case.

He killed a young mother." Mandelbaum presented no evidence about Mr. Hutchins' net

worth. Nor did Mandelbaum move for a directed verdict as to punitive damages based

on Mr. Hutchins' inability to pay. The jury returned a hefty verdict against Mr. Hutchins

that included $500,000 in punitive damages. Belatedly, Mandelbaum sought relief from

the punitive damages award, arguing that Florida law prohibits an award against a

financially drained wrongdoer. The trial court refused to remit the award. It entered a

final judgment against Mr. Hutchins.

              A few months later, Mr. Hutchins filed for Chapter 7 bankruptcy protection.

See 11 U.S.C. § 301 (2012). The bankruptcy court appointed Ms. Herendeen as the

trustee of the bankruptcy estate. The bankruptcy court eventually discharged Mr.

Hutchins' debts, including the wrongful death final judgment.

              Although Mr. Hutchins never complained about Mandelbaum's

representation, Ms. Herendeen sued the lawyers. She alleged that Mandelbaum failed

to defend Mr. Hutchins properly against the punitive damages claim in the wrongful

death case. Mandelbaum moved for summary judgment. The lawyers contended that



                                           -3-
affirmative defenses eight and nine1 barred Ms. Herendeen's claims. At the hearing on

Mandelbaum's motion, the parties agreed that the issue of breach of duty was not then

before the trial court. The trial court granted Mandelbaum's motion. This appeal

follows.

                                        Analysis

             A Discharged Judgment Does Not Bar the Trustee's Claim

             We begin by discussing whether a judgment discharged in bankruptcy can

be considered "damage" to support a legal malpractice cause of action brought by the

bankruptcy trustee. Mandelbaum's ninth affirmative defense is not legally sound. Thus,

the trial court erred in entering summary judgment on that basis.

             At the time he filed for bankruptcy, Mr. Hutchins had a potential legal

malpractice claim against Mandelbaum. This claim became the property of the

bankruptcy estate. As the Fifth Circuit explained:

             Such an estate comprises all "legal or equitable interests [of
             the debtor] in property as of the commencement of the
             [bankruptcy] case," which includes any "causes of action
             belonging to the debtor at the time the case is commenced."
             [In re Segerstorm, 247 F.3d 218, 223 (5th Cir. 2001)] (citing
             11 U.S.C. § 541(a)(1) and La. World Exposition v. Fed. Ins.
             Co., 858 F.2d 233, 245 (5th Cir. 1988)). . . . The trustee of a
             debtor's bankruptcy estate may pursue any claims that are
             property of the bankruptcy estate. 11 U.S.C. § 323; Wieburg
             v. GTE Sw. Inc., 272 F.3d 302, 306 (5th Cir. 2001)
             ("Because the claims are property of the bankruptcy estate,
             the Trustee is the real party in interest with exclusive
             standing to assert them.").




             1The  eighth affirmative defense alleged that Ms. Herendeen's action was
barred as a matter of public policy regarding recovery for punitive damages from a
nonparty. The ninth affirmative defense alleged that Ms. Herendeen had not been
damaged by the judgment because the debt was discharged in the bankruptcy
proceeding.
                                           -4-
Stanley v. Trinchard, 500 F.3d 411, 418 (5th Cir. 2007) (first and second alternation in

original). "The law is well established that under § 541(a) of the Bankruptcy Code, '[a]

bankruptcy trustee stands in the shoes of the debtor.' " O'Halloran v.

PricewaterhouseCoopers LLP, 969 So. 2d 1039, 1046 (Fla. 2d DCA 2007) (quoting

Official Comm. of Unsecured Creditors of PSA, Inc. v. Edwards, 437 F.3d 1145, 1150

(11th Cir. 2006)). "The Bankruptcy Code provides that property of the debtor estate

includes 'all legal or equitable interests of the debtor in property as of the

commencement of the case.' " Official Comm. of Unsecured Creditors of PSA, Inc., 437

F.3d at 1149 (quoting 11 U.S.C. § 541(a)(1)). Ms. Herendeen could pursue the

malpractice claim because it belonged to the estate upon filing of the Chapter 7 petition.

              Mandelbaum asserts that Mr. Hutchins was not damaged by the punitive

damages award because the bankruptcy court discharged that debt. However, the

discharge of Mr. Hutchins' personal liability under the wrongful death judgment did not

eliminate the debt of the bankruptcy estate. See Camp v. St. Paul Fire & Marine Ins.

Co., 616 So. 2d 12, 15 (Fla. 1993); Stanley, 500 F.3d at 425 (holding that bankruptcy

discharge eliminates only a debtor's personal liability and not the debt itself and that a

bankruptcy trustee stands in the shoes of the debtor and can bring a legal malpractice

claim as trustee).

              But, Mandelbaum asserts, the bankruptcy estate has no assets other than

the potential recovery from this legal malpractice suit and a bad faith settlement lawsuit

filed by special counsel for the bankrupt estate. Noting that the judgment debt was

discharged without objection, Mandelbaum argues that the only person who could have

brought a claim against the bankruptcy estate was Ms. Fraccalvieri's estate.



                                             -5-
Mandelbaum presses that there is no "competing body of creditors" with an interest in

the assets, save for the trustee and her attorneys.

             Mandelbaum misses the mark. The trustee and professionals acting for

the estate are entitled to compensation. See 11 U.S.C. § 330. Ms. Herendeen, as

trustee of the bankruptcy estate, stands in the shoes of Mr. Hutchins as to claims

existing on the date of filing. She is entitled to pursue such claims so as to maximize

the assets of the bankruptcy estate. To achieve that goal, Ms. Herendeen can pursue

any claim that Mr. Hutchins could have pursued prior to filing bankruptcy.

              Public Policy Does Not Bar Recovery From Mandelbaum

             Ms. Herendeen argues that the bankruptcy trustee can seek damages

caused by Mandelbaum's failure to defend Mr. Hutchins against a punitive damages

claim. In the eighth affirmative defense, Mandelbaum "affirmatively allege[d] that [the]

action is barred as a matter of public policy regarding recovery for punitive damages

from a non-party to a punitive damage award." In Mandelbaum's view, the punitive

damages award rests with Mr. Hutchins, alone; after all, he killed Ms. Fraccalvieri. The

position is too facile. Mandelbaum ignores the fact that the lawyers' alleged malpractice

exposed Mr. Hutchins to punitive damages. The parties have directed us to no Florida

statutory or case law on point. We are chary to conclude that Florida public policy

insulates the lawyers from the consequences of the misconduct alleged by Ms.

Herendeen.

             "In a suit for legal malpractice, proof that the attorney's negligence

proximately caused the client's harm is necessary for recovery." Jones v. Law Firm of

Hill & Ponton, 223 F. Supp. 2d 1284, 1287 (M.D. Fla. 2002) (citing Sure Snap Corp. v.

Baena, 705 So. 2d 46, 48 (Fla. 3d DCA 1997)). "For a party to recover for legal
                                           -6-
malpractice, three elements must be proven: (1) the attorney was employed by or in

privity with the plaintiff(s); (2) the attorney neglected a reasonable duty to the client(s);

and (3) the negligence proximately caused any loss to the plaintiff(s)." Gresham v.

Strickland, 784 So. 2d 578, 580 (Fla. 4th DCA 2001) (citing Dadic v. Schneider, 722 So.

2d 921, 923 (Fla. 4th DCA 1998)).

              In trying to avoid a public policy bar, Ms. Herendeen relies on Ging v.

American Liberty Insurance Co., 423 F.2d 115 (5th Cir. 1970). There, the Fifth Circuit

held that summary judgment for the insurer was inappropriate where an insurer

allegedly breached its duty to defend its client in a lawsuit seeking compensatory and

punitive damages. Ms. Herendeen argues that an attorney who breaches its duty to

defend a client against a punitive damages claim should be treated no differently than

the insurer. Mandelbaum observes that Ging is an insurance bad faith case and, thus,

inapposite. Mandelbaum's point is well taken.

              Ging, 423 F.2d 116, involved an insurer who undertook the complete

defense of its insured in a case arising out of a deadly automobile accident. The

plaintiff sought compensatory and punitive damages from the insured. Id. Indisputably,

the insurer owed a duty to act in good faith toward its insured. Id. Upon assuming the

defense, the insurer advised its insured that "the suit sought recovery for punitive

damages which were not covered by the policy of insurance." Id. at 117. It advised that

the insured could retain separate counsel. Id. As the case progressed, the insurer

failed to apprise the insured of repeated settlement offers. Id. at 117-18. Significantly,

the insurer did not relay to its insured its concerns about a likely award of punitive

damages. Id. at 117. The insurer also failed to timely report the outcome of the trial to

its insured. Id. at 118. The trial resulted in an award of compensatory damages of
                                             -7-
$14,695, later reduced to $11,195, and punitive damages of $25,000. Id. at 117. Being

left in the dark by the insurer, the insured was personally liable for the punitive

damages. Id. at 118.

              Ging does not hinge on the award of punitive damages. Nor does it find

foundation as a legal malpractice case. It is a case where questions of material fact

remained as to the insurer's duty to act in good faith in trying to resolve the lawsuit

within policy limits. At its core, Ging centers on the insurer's failure to keep its insured

apprised of developments in the case. The insurer failed to notify the insured of

settlement opportunities, to warn about the actual difficulties litigation posed to the

insured, to advise the insured of the outcome of the litigation, and to conduct the

settlement negotiations in good faith. Id. at 120-21. Ging does not stretch as far as Ms.

Herendeen would like.

              But Mandelbaum fares no better in asserting that Lohr v. Byrd, 522 So. 2d

845 (Fla. 1988), is dispositive. Unfortunately for the lawyers, that case does not fit

nicely here. In Lohr, the supreme court refused to allow a punitive damages award to

be taken from the deceased tortfeasor's estate. The purpose of punitive damages is to

punish the offender, not to compensate the victim. Id. at 846-47. Taking money from

the estate would punish the innocent and make the estate an indemnitor of the guilty

tortfeasor. Obviously, upon the death of the tortfeasor, taking money away from the

estate's beneficiaries would serve no purpose to which punitive damages are

addressed.

              Florida law does not allow indemnification against punitive damages.

Queen v. Clearwater Elec., Inc., 555 So. 2d 1262, 1266 (Fla. 2d DCA 1989) ("Florida

public policy prohibits liability insurance coverage for punitive damages assessed
                                             -8-
against a person because of his wrongful conduct." (citing U.S. Concrete Pipe Co. v.

Bould, 437 So. 2d 1061 (Fla. 1983))). But that is not what Ms. Herendeen seeks. She

correctly observes that no public policy absolves Mandelbaum from the toll of the

lawyers' alleged malpractice.

              This makes sense. Punitive damages "operate as 'private fines' intended

to punish the defendant and to deter future wrongdoing." Engle v. Liggett Grp., Inc.,

945 So. 2d 1246, 1262 (Fla. 2006) (quoting Cooper Indus., Inc. v. Leatherman Tool

Grp., Inc., 532 U.S. 424, 432 (2001)). But, it is equally clear that punitive damages

should not financially cripple the tortfeasor. Thus, "evidence of defendant's financial

ability to pay punitive damages is admissible, that is to say that it is permissible when

considering punitive damages to allow the introduction of evidence of financial worth."

Rinaldi v. Aaron, 314 So. 2d 762, 763 (Fla. 1975). "If defendant's financial worth is

meager, it would be to his advantage to introduce such evidence in order to mitigate the

damage award." Id. at 765.

              Ms. Herendeen alleges that Mandelbaum failed to properly defend the

suit. By not presenting any evidence of Mr. Hutchins' financial wherewithal,

Mandelbaum arguably exposed him to $500,000 in punitive damages. See, e.g. Hunt v.

Dresie, 740 P.2d 1046, 1057 (Kan. 1987) (holding that client was not barred from

recovering all damages in legal malpractice suit assessed against him in previous

case); Scognamillo v. Olsen, 795 P.2d 1357, 1361 (Colo. App. 1990) (same); Picadilly,

Inc. v. Raikos, 555 N.E.2d 167, 169-70 (Ind. Ct. App. 1990) (same but client failed to

prove essential elements of legal malpractice claim) (vacated on other grounds, 582

N.E.2d 338, 345 (Ind. 1991) (holding that legal malpractice claims are not assignable)).

If a lawyer is hired to represent someone in a lawsuit and negligently fails to raise a
                                            -9-
meritorious defense causing harm to this client, the client should have recourse against

the negligent lawyer. "But for the legal malpractice, the client would have had no

judgment against him." Hunt, 740 P.2d at 1057.

              As the Kansas Supreme Court held,

              [t]he damages [the client] had to pay under the [previous]
              judgment included damages called punitive damages from
              the vantage point of that lawsuit. From the vantage point of
              this lawsuit, should Hunt be successful, all the damages are
              simply those which proximately resulted from his attorneys'
              negligence; they are no longer properly called punitive
              damages. If they were called punitive damages and the trial
              court's decision properly denied their recovery, then any
              attorney representing a client who might be assessed
              punitive damages in a lawsuit could rest easy, secure in the
              knowledge that any improper handling of the suit, even
              intentional actions, could not subject the attorney to any
              malpractice liability at all.

Id. (emphasis added). Similarly, a Colorado appellate court held that "the punitive

damages assessed in the underlying case are part and parcel of the damages plaintiffs

suffered as a result of defendants' alleged negligence." Scognamillo, 795 P.2d at 1361

("In a legal malpractice action based on an attorney's breach of his duty to represent his

client in a prior case, it is the defendant attorney's conduct and its consequences, rather

than the conduct of the client that resulted in the underlying case, which governs the

analysis of damages. Thus, if the defendant attorney's negligence results in entry of a

judgment when there otherwise would have been no judgment, the proper measure of

damages is the entirety of the prior judgment regardless of the theory upon which the

prior judgment was entered or the nature of the damages assessed thereunder." (citing

Hunt, 740 P.2d 1046)).

              Admittedly, the Georgia Court of Appeals has held that allowing the

tortfeasor to shift its liability for punitive damages to former counsel "would be contrary
                                           - 10 -
to the public policy of Georgia, even if former counsel were found liable for legal

malpractice in the action in which punitive damages were awarded." Paul v. Smith,

Gambrell & Russell, 599 S.E.2d 206, 211 (Ga. Ct. App. 2004). We think Paul is out of

step with other jurisdictions. Moreover, the reasoning underlying its holding is not

enlightening.

                Although the awarded punitive damages were intended to punish Mr.

Hutchins, allowing Ms. Herendeen to proceed with the malpractice claim will not

improperly shift punitive damages to Mandelbaum or make Mandelbaum an indemnitor.

Rather, Mandelbaum may have to respond to the results of the alleged legal

malpractice.

                                         Conclusion

                The trial court erred in concluding that the bankruptcy trustee could not

pursue a claim on a discharged debt and in concluding that public policy barred Ms.

Herendeen's claim against Mandelbaum. Therefore, we must reverse the final

judgment and remand for further proceedings. We caution the parties that our decision

is in no way intended to decide whether Mandelbaum enjoys "judgmental immunity."

See Crosby v. Jones, 705 So. 2d 1356, 1358 (Fla. 1998). Nor do we express any view

of whether Mandelbaum breached a duty owed to Mr. Hutchins that caused him

damages.

                Reversed and remanded.




WALLACE and ROTHSTEIN-YOUAKIM, JJ., Concur.




                                            - 11 -
