Filing # 12384144 Electronically Filed 04/10/2014 05:23:09 PM

In the Supreme Court of Florida

Supreme Court N° SC14-626

Fin DCA N° 5D13-1725

Fih Jud. Cir. N° S-60-2010-CA-200

JACQUELINE C. DELLINGER,MICHAEL MILLHORN, E1UC MILLHORN,and THE MILLHORN LAW FIRM, L.L.C.,

Petitioners,

- ROBERT DINGLE and JANET L. DINGLE,

Respondents.

ON DISCRETIONARY REVIEW FROMTHE FIFTH DISTRICT COURT OF APPEAL

BRIEF ON JURISDICTIONBY PETITIONER,

JACQUELINE C. DELLINGER, ESQ.

JOSEPH M. MASON, JR., Esq.The Florida Bar Number: 108545CAROLE JOY BARICE, Esq.The Florida Bar Number: 211079McGEE & MASON, P.A.101 South Main Street (zip: 34601-3336)Post Office Box 1900Brooksville, Florida 34605-1900Telephone: (352) 796-0795Facsimile: (352) 796-0235E-Mail: CourtDoes@McGeeMasonLaw.com

JoeMason@McGeeMasonLaw.comCaroleBarice@McGeeMasonLaw.com

Attorneys for the Petitioner, DELLINGER

-Aw OFFICES OF MCGEE 4 MASON, PROFE'SSIONAL ASSOCIATION * PosT OFFICE Box ! 900 �042BROOKSVILL.E. FLORIDA 34605-1900 �042(352) 796-0795

TABLEOFCONTENTS

TABLE OF CONTENTS ............................................ ii

NOTICEOF RELATED CASES ............................ ......... ii

TABLEOFAUTHORITIES...................................... iii~iv

PRELIMINARY STATEMENT ...................................... iv

INTRODUCTION .................................................. 1

STATEMENT OF THE CASE AND FACTS .......................... 1~4

SUMMARYOFTHEARGUMENT ................................ 4~5

ARGUMENT................................................... 5~8

CONCLUSION ................................................... 8

CERTIFICATEOF COMPLIANCE................................... 9

CERTIFICATE OF SERVICE ........................................ 9

APPENDIX . ........ ... .. ......... ................ (separately attached)

NOTICE OF RELATED CASES

Each party to the action before the Fifth District Court ofAppeal (5D13-1725) hasfiled a separateNotice to Invoke this Court's discretionary reviewjurisdiction. Thosecases have been assigned case numbers by the clerk of this Court, as follows:

Millhorn, et al., v. Dingle, et al. Case N° SC14-624Dellinger, et al., v. Dingle, et al. Case N° SC14-626Dingle, et al., v. Dellinger, et al. Case N° SC14-628

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TABLE OF AUTHORITIESITEMS PAGES

Cases

Adams v. Chenowith, 349 So.2d 230 (Fla. 4* DCA 1977) . . . . . . . . . . . . . 4, 5, 5, 6

Admiral Merch. Motor Freight, Inc., v. O'Connor & Hannan,494N.W.2d261(Minn. 1993) ........................................ 4

Angel, Cohen and Rogovin v. Oberon Investment, N.V.,512So.2d192(Fla.1987) .....................................4,4,5,6

Baskerville-Donovan Engineers, Inc., v. Pensacola ExecutiveHouse Condominium Ass 'n, Inc., 581 So.2d 1301 (Fla. 1991) . . . . . . . . . . . . . . . 6

Biakanja v. Irving, 49 Cal.2d 647, 320 P.2d 16 (1958) . . . . . . . . . . . . . . . . . . . . . 6

Caretta Trucking, Inc., v. Cheoy Lee Shipyards, Ltd.,647 So.2d 1028 (Fla.4*DCA 1994)................................ 4, 5,7

DeMaris v. Asti, 426 So.2d 1153 (Fla. 3d DCA 1983) . . ... . . . .. ..... ... .... 6

Dingle v. Dellinger (Corrected Opinion), 39 Fla.1. Wkly. D464[original Opinion: 39 Fla. L. Wkly. D322 (Feb. 27, 2014)],

So.3d__(Fla.5*DCA2014)..................................... 1

Dingle v. Prikhdina, 59 So.3d 326 (Fla. 5* DCA 2011) . . . . . . . . . . . . . . . . . . . . . 1

Donahue v. Shughart, Thomson & Kilroy, P.C.,900 S.W.2d 624(Mo.1995) .......................................... 3

Drawdy v. Sapp, 365 So.2d 461 (Fla. 1° DCA 1978). . . . .. . . . .. . .. . . . . . . . 5, 6

Espinosa v. Sparber, Shevin, Shapo, Rosen & Heilbronner,612So.2d1378(Fla.1993).....................................3,4,6,7

Freedom Mortg. Corp. v. Burnham Mortg., Inc.,720 F. Supp.2d978(N.D.Ill.2010) .................................... 3

Flaherty v. Weinberg, 492 A.2d 618 (Md. 1985) .......................... 3

Ginsberg v. Chastain, 501 So.2d 27 (Fla. 3d DCA 1986) . . . . . . . . . . . . . . . . . . . 6

Hewko v. Genovese, 739 So.2d 1189 (Fla. 4* DCA 1999) . . . . . . . . . . . . . . . . . . . 8

Hunt Ridge at Tall Pines, Inc., v. Hall,766So.2d399(Fla.2"dDCA2000) ..................................4,7

111

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In re Blocks ' Estate, 143 Fla. 163, 196 So. 410 (1940) . . . . . . . . . . . . . . . . . . . . . 7

Jimerson v. First Am. Title Ins. Co.,989 P.2d258(Colo.App. 1999) ....................................... 3

Kirby v. Chester, 331 S.E.2d 915 (Ga. App. 1985) .. . .. .. . .. .. . .. .. .. . .. .. 3

Lorraine v. Grover, Ciment, Weinstein & Stauber, P.A.,467 So.2d 315 (Fla. 3d DCA 1985) ........................... 4, 5, 5, 6, 6, 7

Lucas v. Hamm, 364 P.2d 685 (Cal. 1961)] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

AIcAbee v. Edwards, 340 So.2d 1167 (Fla. 4* DCA 1976) . . . . . . . . . . . . . . . . 5, 6

Onita Pac. Corp. v. Trs. ofEronson, 843 P.2d 890 (Or. 1992) . . . . . . . . . . . . . . . 3

Rosenstone v. Satchell, 560 So.2d 1229 (Fla. 4* DCA 1990) . . . . . . . . . . . . . . . . 6

Southworth v. Crevier, 438 So.2d 1011 (Fla. 4* DCA 1983) . . . . . . . . . . . . . . . . . 5

Stuart v. Frieberg, 69 A.3d 320 (Conn. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Wild v. Trans World Airlines, Inc.,14 S.W.3d 166(Mo. App.2000)........................................ 3

Other Authorities

4 Legal Malpractice § 34:4(2013 ed.) .................................. 3

PRELIMINARY STATEMENT

Reference herein, to the Corrected Opinion of the Fifth District Court ofAppeal (DCA), will be to the pages thereof, in the form (Op. ).

Reference herein, to the Appendix hereto, will be to the pages thereof, in theform (App. ).

IVl-Aw OFFICES OF McGEE & MASON, PROFESSIONAL ASSOCIATION �042PCsT OFFICE Box | 900 �042BROOKSVILLE, FLORIDA 34605-1900 * (352) 796-0795

INTRODUCTION

Petitioner, Jacqueline C. Dellinger, Esq.("Dellinger"), seeks review oftheFifth

DCA decision inDingle v. Dellinger, 39 Fla. L. Wkly. D464, Fla. App. 5 Dist., dated

Feb. 07, 2014 [Feb. 27, 2014, Corrected Opinion (App. 1~11) issued on entry ofthe

Feb. 27, 2014, Order denying Dellinger's Motionfor Rehearing, Clarification, and

Certification ("Motion for Rehearing"); "Opinion"], which expressly and directly

conflicts with decisions of this Court, and other district courts, regarding the duty of

care owed by attorneys to persons not the client of, or otherwise in privitywith, them.

STATEMENT OF THE CASE AND FACTS

The decision of the Fifth DCA for which review is sought arises from a claim

made byRobert Dingle and Janet Dingle ("Dingles"), plaintiffs/appellants below, for

malpractice against Dellinger, two Millhorn individual attorneys, and The Millhorn

Law Firm, at which Dellinger practiced (collectively, "Millhorn"), the defen-

dants/appellees below. Dingles were disappointed grantees of a Ouitclaim Deed of

Gift ("Deed") for certain real estate ("Property"), which, according to the pleadings,

was gifted by Whiteway Investments, Inc. ("Whiteway"), the record title holder, to

Dingles. Dellinger prepared the Deed at the request ofher client, John P. Kyreakakis

("Kyreakakis"), the sole shareholder of, and attorney-in-fact for, Whiteway. The Pro-

pertywas the residence ofKyreakakis, who continued to reside thereon until his death

two months later. Dingles then filed an action to eject Kyreakakis' widow from the

Property. The Deed was held to be invalid since the power-of-attorney under which

Kyreakakis executed it did not specifically authorize him to make gifts of White-

way's assets. Dingle v. Prikhdina, 59 So.3d 326 (Fla. 5* DCA 2011). Dingles then

filed this action for professional negligence against Dellinger and Millhorn.

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Dellinger and Millhorn moved to dismiss the complaint for lack ofprivity, and

Dingles' inability to plead ultimate facts to show thatboth Kyreakakis and Dellinger

had clearly expressed an intent that Dingles were intended to be direct and primary

third partybeneficiaries ofa legal services contract between Whitewayand Dellinger.

Two trial judges dismissed the complaint. After five iterations thereof, over a period

of three years, the trial court dismissed Dingles' Third Amended Complaint, with

prejudice, reciting Florida law, and holding that the complaint failed to assert a cause

ofaction for negligence against Dellinger and Millhorn, in pertinent part as follows:

12. The Court finds that the Plaintiffs' Third Amended Complaintfails to plead ultimate facts to support a claim that Defendant Dellingerwas employed by the Plaintiffs or that Plaintiffs were the intended thirdparty beneficiary of the contract between Whiteway Investments andDefendant Dellinger/Millhorn Defendants. Plaintiffs admitted in theirThird Amended Complaint that Defendant Dellinger/Millhorn Defen-

. dants were hired by Whiteway. Plaintiffs did not allege that DefendantDellinger/Millhorn Defendants were hired byPlaintiffs. Plaintiffs neveralleged that Defendant Dellinger represented that she was representingboth Whiteway and the Plaintiffs or that she intentionallymisled anyonein the representation. Plaintiffs failed to allege that Defendant Dellingeror the Millhorn Defendants explicitly and expressly acknowledged thatthe legal services rendered on behalf of Whiteway were primarily anddirectly for the benefit of the Plaintiffs. Plaintiffs were free to hire theirown attorney. In this case, Plaintiffs, as transferees, are incidentalbeneficiaries ofthe contract between Whiteway and Dellinger/MillhornDefendants. Consequently, count (I) fails to assert a cause ofaction fornegligence as against Defendant Dellinger;. count (II) fails to assert acause ofaction as against the Millhorn Defendants as principal for theacts ofagent Defendant Dellinger; and count (III) fails to assert a causeFar narr i ; aan+ +va;nin a anA annarnici an

In its Opinion, the Fifth DCA reversed as to Counts I and II, affirmed as to

Count III, and remanded for trial. Dellinger filed a Motion for Rehearing, seeking

certification both of conflict, and ofquestion ofgreat public importance, which was

denied ". . . in light of the Corrected Opinion issued February 27, 2014 . . ." (App.

12), which corrections did not alter either the reasoning or the result of the original.

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The Opinion relied on and imported foreign-state precedent to hold that in inter

vivos "non-adversarial" (without defining that term) real estate transactions, attorneys

owe a dutyboth to clients, and to third parties benefitted by the transactions, and.said:

While the general rule in Florida is that an attorney owes a duty of careonly to his client and not to third parties, an attorney owes a duty to athird party ifthe attorney was hired for the purpose ofbenefitting a thirdparty. See, e.g. Espinosa, 612 So.2d at 1379-80; Oberon, 512 So.2d at194. Because the intended benefit rule requires the specific intent tobenefit the third party, it is accepted that an.attorney is not liable to thethird party for malpractice alleged to have occurred during adversarialproceedings on the rationale that adversaries would never desire to bene-fit one another. Wild v. Trans World Airlines, Inc., 14 S.W.3d 166, 168(Mo. App. Ct. 2000); Donahue v. Shughart, Thomson & Kilroy, P.C.,900 S.W.2d 624, 625 (Mo. 1995); Onita, 843 P.2d , at 897 [(Or. 1992)].

This case involved a real estate transaction, typically a two-sidedtransaction. However, here, based on the allegations contained in thecomplaint, there was no adversarial relationship or differing interests tobe protected, as theDingles' interests were not in conflict with White-way or Kyreakakis, thus suggesting a one-sided transaction. See gener-ally, Freedom Mortg. Corp. v: Burnham Mortg., Inc.,. 720 F. Supp.2d978 (N.D. Ill. 2010) (holding that mortgage lender sufficiently pled thatprimarypurpose and intent ofattorney's representation ofmortgage bro-ker and title insurer were to influence lender, giving rise to duty ofcarerunning from attorney to lender, as third-party beneficiary'of attorneý-client relationship; although broker and title insurer hired attorney asclosing agent presumably to act in their best interests, attorney's workwas nonadversarial as to lender in sense that attorney's services as clos-ing agent were typically relied upon by all parties to real estate transac-tion); Kirbyv. Chester, 331 S.E.2d 915 (Ga. App. Ct. 1985) (concludingthat closing attorney owed duty to nonclient lender that relied on attor-ney's title certification to loan money); Flaherty v. Weinberg, 492 A.2d618, 629-30 (Md. 1985) (determining that unrepresented mortgagor-buyer's complaint, which alleged that mortgagee-lender retained attorneyto intentionally benefit both parties, who had identical interests in theproperty, alleged sufficient facts to survive dismissal); 4 LegalMalpractice § 34:4 (2013 ed.) ("The rule ofprivity ofcontract prevailswhere a nonclient sues the attorney for errors in handling a transfer ofproperty interests, in creating a security interest, searching title or repre-senting a client in the transaction, who is sued by another party to thetransaction.") (collecting cases); see also Jimerson v. First Am. Title Ins.Co., 989 P.2d 258, 261 (Colo. App. Ct. 1999) (explaining that profes-sional supplier of information may be liable for its riegligence to personwith whom it has no contractual relationship, providing that supplier of

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information knows that recipient of information will provide it to thatperson or knows that information is to be used to influence transaction);Stuart v. Freiberg, 69 A.3d 320 (Conn. 2013) (holding that genuineissue ofmaterial fact existed as to whether estate beneficiaries viere in-tended beneficiaries ofaccountant's work for estate executor, and there-fore, whether accountant owed them duty of care, precluded summaryjudgment in professional malpractice claim against accountant).

SUMMARY OF THE ARGUMENT

This Court has conflict jurisdiction, as the Fifth DCA Opinion conflicts with

decisions of this Court, and other DCAs, regarding third party beneficiary status of,

and duty owed by attorneys to, persons neither the direct client of, nor inprivitywith,

the attorney. Allowing nonclients in inter vivos "nonadversarial" transactions to be

intended third party beneficiaries, entitled to recourse against the attorney, directly

and expressly conflicts with: this Court in Angel, Cohen and Rogovin v. Oberon

Investment, N.V., 5 12 So.2d 192 (F1a. 1987), andEspinosa v. Sparber, Shevin, Shapo,

Rosen &Heilbronner, 612 So.2d 1378 (Fla. 1993); and the Second, Third, and Fourth

DCAs in Htmt Ridge at Tall Pines, Inc., v. Hall, 766 So.2d 399 (Fla. 2"d DCA 2000),

Lorraine v. Grover, Ciment, Weinstein & Stauber, P.A., 467 So.2d 3 15 (F1a. 3"' DCA

1985), Adams v. Chenowith, 349 So.2d 230 (Fla. 4* DCA 1977), and Caretta

Trucking, Inc., v. Cheoy Lee Shipyards, Ltd., 647 So.2d 1028 (Fla. 4* DCA 1994).

Foreign-state cases relied upon by the Fifth DCA, to unilaterally overrule this

Court's precedent and that ofother DCAs, find their únderpinning in the "California

Balancing of Factors Test" [see, e.g.: Admiral Merch. Motor Freight, Inc., v.

O'Connor & Hannan, 494 N.W.2d 261, 266 (Minn. 1993), citing Lucas v. Hamm,

364 P.2d 685, 687 (Cal. 1961)], which test this Court specifically rejected in Angel.

Since many deeds are for no, or for a recitation ofnominal, monetary consider-

ation, the decision affects thousands of attorneys and their clients every day. This

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Court should exercise its discretionaryjurisdiction to review this matter, as the issue

- of any duty owed by attorneys to nonclients is a matter of great public importance.

ARGUMENT

Florida law is clear that real estate transactions embody a definitive standard

for when an attorney owes a duty to a nonclient, as articulated in Adams, at 231:

We have considered the case ofMcAbee v. Edwards, 340 So.2d1167 (Fla. 4* DCA 1976), and find it clearly distinguishable from thiscase. There the attorney owed a duty to a testatrix to make a will for thebenefit of her daughter to whom this court held a duty was owed also.The lawyer in that case represented only one "side" of a transaction be-cause there was only one side. Here there are two sides, two interests tobe protected and we cannot hold a lawyer responsible to all parties in atransaction unless it is alleged (and proved) he committed some non-negligent tort such as fraud or theft or the like.

Caretta Trucking, at 1031, sets the "duty threshold" for third party malpractice

claims as either contract provisions, or clear expressions by both actual parties, that

the services (here, legal) are intended to primarily and directly benefit third parties.

Florida, until now, uniformly followedthat strict rule. Lorraine, at 317, applied

that same reasoning to inter vivos gifts ofproperty, and held that [bold added]:

Generally, an attorney is not liable to thirdparties fornegligence ormis-advice given to a client concerning an inter vivos transfer ofproperty.See Southworth v. Crevier, 438 So.2d 1011 (Fla. 4* DCA 1983);Drawdy. Sinceno privityexistedbetween theplaintiffand [the attorney]and no duty was owed to the plaintiff, this action cannot be maintainedby the plaintiffon an alleged breach of duty owed solely to [the client].

CitingbothAdams andLorraineapprovingly, this Court, inAngel, at 193~194,

held an attorney's liability for malpractice is strictly limited to clients with whom the

attorney has privity of contract, except in cases generally limited to will drafting:

Assuming as we must in the posture ofthe case that the petitionerwas aware that Treister was a fiduciaryofrespondent and was obligatedto act in the best interests of respondent, the issue before this Court iswhether such knowledge subjects the petitioner to an action in negli-gence brought by the third-party respondent.

5l..AW OFFICES OF McGEE & MASON, PROFESSIONAL AssoCIATION * PosT OFFICE Box I 900 �042BROOKSVILLE, FLORIDA 34605- I 900 * (352) 796-0795

Florida courts have uniformly limited attorneys' liability fornegligence in the performance oftheir professional duties to clients withwhom they share privity of contract. Ginsberg v. Chastain, 501 So.2d27 (Fla. 3d DCA 1986); Drawdy; Adams v. Chenowith, 349 So.2d 230(Fla. 4* DCA 1977). The only instances in Florida where this rule ofprivity has been relaxed is where it was the apparent intent of the clientto benefit a third party. The most obvious example of this is the area ofwill drafting. Lorraine v. Grover, Ciment, Weinstein, & Stauber, P.A.,467 So.2d 315 (Fla. 3d DCA 1985); DeMaris v. Asti, 426 So.2d 1153(Fla. 3d DCA 1983); McAbee v. Edwards, 340 So.2d 1167 (Fla. 4th DCA1976). Florida courts have refused to expand this exceptioñ to includeincidental third-party beneficiaries. For the beneficiaries' action innegligence to fall within the exception to the privity requirement,testamentary intent as expressed in the will must be frustrated by theattorney's negligence and as a direct result of such negligence thebeneficiaries' legacy is lost or diminished. We see no reason toexpand this limited exception and specifically reject the invitation to

- adopt California's balancing of factors test. Biakanja v. Irving, 49Cal.2d 647, 320 P.2d 16 (1958). [Bold emphasis added.]

In Espinosa, at 1379-1380, this Court held that the planned pre-transfer death

of the client, for which wills and trusts are drafted, is a major factor in non-privity

liability of attorneys to third parties in such cases, and said [bold emphasis added]:

An attorney's liability for negligence in the performance ofhis orher professional duties is limited to clients with whom.the attorneyshares privity ofcontract. Angel, Cohen andRogovin v. Oberon Invest-ments [sic], N. V., 512 So.2d 192 (Fla. 1987). In a legal context, the term"privity" is a word ofart derived from the common law ofcontracts andused to describe the relationship ofpersons who are15arties to a contract.Baskerville-Donovan Engineers, Inc. v. Pensacola Executive HouseCondominiumAss 'n, Inc., 581 So.2d 1301 (Fla. 1991). To bring a legalmalpractice action, the plaintiffmust either be in privitywith the attorney,wherein one party has a direct obligation to another, or, alternatively, theplaintiffmust be an intended third-partybeneficiary. In the instant case,[the after-bom child] does not fit into either category ofproper plaintiffs.

In the area ofwill drafting, a limited exception to the strict privityrequirement has been allowed where it can be demonstrated that theapparent intent of the client in engaging the services of the lawyer wasto benefit a third party. Rosenstone v. Satchell, 560 So.2d 1229 (Fla. 4*DCA 1990) ; Lorraine v. Grover, Ciment, Weinstein & Stauber, P.A., 467So.2d 315 (Fla. 3d DCA 1985). Because the client is no longer alive andis unable to testify, the task of identifying those persons who are in-tended third-party beneficiaries causes an evidentiary problem closely

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akin to the problem of determining the client's general testamentaryintent. To minimize such evidentiaryproblems, the will was designed asa legal document that affords people a clear opportunity to express theviay in which they desire to have their property distributed upon death.To the greatest extent possible, courts and personal representatives areobligated to honor the testator's intent in conformity with the contentsof the will. In re Blocks 'Estate, 143 Fla. 163, 196 So. 410 (1940).

"Intended third party beneficiary" status is predicated upon a clear expression

byboth client and attorney that the purpose ofthe legal services contract is to primar-

,ily and directly benefit the third party (Hunt Ridge, at 400). Caretta Trucking, at

1030~1031,heldoneparty'sunilatei al intent to be insufficient to establish that status:

A person who is not a party to a contract may not sue for breachof that contract where that person receives only an incidental or conse-quential benefit from the contract. The exception to this rule is wherethe entity that is not a party to the contract is an intended third partybeneficiaryofthe contract. Aparty is an intendedbeneficiaryonly iftheparties to the contract clearly express, or the contract itselfexpresses, anintent to primarily and directly benefit the third party . . . .

Thus, in order to plead a cause ofaction for breach ofa third partybeneficiary contract, the following elements must be set forth:

(1) a contract between A and B;

(2) an intent, either expressedby the parties, or in the. provisions of the contract, that the contract primarily anddirectly benefit C, the third party . . . ;

. (3) breach ofthat contractby eitherA.orB (or both); and

(4) damages to C resulting from the breach..

Additionally, in order to find the requisite intent, it mustbe shown. that both contracting parties intended to benefit the third party. It is in-sufficient to show that only one party unilaterally intended to bene-fit the third party. (Citations omitted; italics in original, bold added.)

The Opinion, byallowingthirdpartybeneficiarystatus to arisewithout a speci-

fic expression of intent by both attorney and clierit, expressly and directly conflicts

withEspinosa, at 1380, andLorraine, at 317. Both require, for such status to arise in

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attorney/client contracts, where the third party's benefits are realized, as here, during

the lives of the client and attorney (i.e., two-sided transactions), that it be upon the

clearly expressed intent, by both client and attorney, to primarily and directly benefit

the third party. Averf limited exceptionto that strict rule relates to attorneys' drafting

ofwills and trusts, where realization, by contemporaneouslyunaware beneficiaries,

ofthe contract's benefits occurs after the client's death (i.e., one-sided transactions).

The Fifth DCA abandoned that standard, and adopted a much lower threshold

for third parties to pursue malpractice claims against attorneys who prepare deeds. It

held that such claims may be pursued ifboth a lack of benefit to the client, and the

intent ofboth the client and the attorney to benefit the third party, are simply inferred

from the fact of a gift ofproperty. That is in express and direct conflict with Hewko

v. Genovese, 739 So.2d 1189, 1192 (Fla. 4* DCA 1999), which holds as follows:

An intent to benefit a third party which must be inferred from contra-dicted circumstantial evidence cannot be characterized as "apparent,""direct," or "primary."

As many real estate transactions are arguably, on their face, one-sided or non-

adversarial, the decision of the Fifth DCA opens floodgates for liberal pursuit of

malpractice claims against any attorney who drafts a deed. This "open gate" policy,

encouragingmalpractice litigation, directly and expresslyconflictswith long-standing

decisions ofthe Second, Third, and Fourth DCAs and this Court, which have limited

such claims by third parties, in inter vivos transactions, to clear expressions, not

inferences, ofthe actualparties' intent to primarilyand directlybenefit the thirdparty.

CONCLUSION .

Petitioner submits that this Court has conflictjurisdiction, and should exercise

its discretion to review of the Corrected Opinion in Dingle v. Dellinger (App. 1).

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CERTIFICATE OF COMPLIANCE

I hereby CERTIFY that the type size and style used throughout the above Briefon Jurisdiction by Petitioner, Jacqueline C. Dellinger, Esq., is double-spaced 14-point Times New Roman font, and that this brieffully complies with the requirementsofFlorida Rule ofAppellate Procedure 9.210(a)(2).

. CERTIFICATE OF SERVICE

I hereby CERTIFY that. on April /0 , 2014, a copy of the above Brief onJurisdiction by Petitioner, Jacqueline C. Dellinger, Esq., was furnished, by theundersigned, to the addressee(s), and in the manner(s), shown below:

RYAN MILLHORN, Esq.The Florida Bar Number: 24671THE MILLHORN LAW FIRM, LLCThe Pines Professional Center13710 U.S. Highway441, Suite 100The Villages, Florida 32159-8988Telephone: (352) 753-9333

- Facsimile: (352) 259-1249e-mail: ryan@millhorn.com

ben@millhorn.comAttorney for the Respondents, theMILLHORNS and the MILLnORNLAW FIRM(Via: E-Mail)

CRAIG A. BRAND, Esq.The Florida Bar N°: 896111THE BRAND LAW FIRM, P.A.Grove Forest Plaza2937 S.W. 27* Avenue, Suite 101Miami, Florida 33133-3772Telephone: (407) 447-1447

(305) 878-1477Facsimile: (877) 407-2726e-mail: Craig@TheBrandLawFirm.comAttorney for the Respondents, the DINGLES(Via: E-Mail)

JOSEPH M. MASON, JR., Esq.The Florida Bar Number: 108545CAROLE JOY BARICE, Esq.The Florida Bar Number: 211079McGEE & MASON, P.A.101 South Main Street (zip: 34601-3336)Post Office Box 1900Brooksville, Florida 34605-1900Telephone: (352) 796-0795Facsimile: (352) 796-0235E-Mail: CourtDoes@McGeeMasonLaw.com

JoeMason@McGeeMasonLaw.comCaroleBarice@McGeeMasonLaw.com

Attorneys for the Petitioner, DELLINGER

CJB/jmm/csh\DELO41014.D-JURIS.BRF.wpdec: Brett L. Swigert, Esq. (bswigertlaw@aol.com)

Jacqueline C. Dellinger, Esq. (dellingerlaw@jacquelinecdellingerpa.com)

9..Aw OFFICES OF McGEE & MASON, PROFESSloNAL AssociATION �042PosT OFFICE Box I 900 �042BROOKSVILLE, FLORIDA 34605-|900 �042(352) 796-0795