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Keywords

attorneylawyerappealtrialmotionmalpractice
attorneyappealtrialpleamotionmalpracticemotion to dismiss

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Torrey v. Leesburg Regional Medical Center, 769 So.2d 1040, 25 Fla. L. Weekly S911

Facts

Becky Torrey, the personal representative of Helen Rose Woodard's estate, filed a wrongful death complaint against Leesburg Regional Medical Center and two doctors, alleging medical malpractice. The complaint was prepared and signed by a Michigan attorney who was not licensed to practice in Florida. After a motion to disqualify the attorney was filed, the trial court dismissed the complaint without prejudice, leading to an appeal.

On September 16, 1997, Becky Torrey, personal representative of the estate of Helen Rose Woodard, filed a wrongful death complaint alleging medical malpractice against Leesburg Regional Medical Center and Drs. Kenneth Kupke and Robert Hux.

Issue

Whether a complaint filed and signed by an attorney not licensed to practice in Florida is a nullity or an amendable defect.

This case asks us to determine whether a complaint filed and signed by an attorney not licensed to practice in Florida is a nullity or an amendable defect.

Rule

A complaint filed by an attorney not authorized to practice law in Florida is not a nullity but an unauthorized filing that can be validated upon the entry of a lawyer authorized to practice in the state.

We hold that it is the latter.

Analysis

The court analyzed the procedural differences between this case and previous cases, emphasizing that the dismissal of the complaint was too harsh given the circumstances. The court noted that the policies favoring resolution of cases on their merits and the protection against the unauthorized practice of law should allow for amendment of the complaint rather than outright dismissal.

In the present case, the Fifth District heard an appeal from the grant of a motion to dismiss to which a showing of excusable neglect or any of the other enumerated grounds under 1.540(b) would not appear relevant.

Conclusion

The Supreme Court quashed the decision of the District Court of Appeal and approved the approach taken in Szteinbaum, allowing for the amendment of the complaint to include authorized counsel.

Accordingly, consistent with the liberal rules regarding the amendment of pleadings, we conclude that a trial court must allow litigants a reasonable amount of time to amend their complaints with the appearance of authorized counsel.

Who won?

The petitioner, Becky Torrey, prevailed because the Supreme Court ruled that the defect in the complaint was amendable, allowing her to proceed with the case.

The Supreme Court quashed the decision of the District Court of Appeal and approved Szteinbaum to the extent consistent with this decision and remand for proceedings consistent therewith.

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