Baruno v. Slane
An attorney's failure to discover a client's cause of action for violation of a restrictive covenant can violate the standard of care and qualify as legal malpractice. Allegedly, the plaintiffs, Elizabeth and Gerald Baruno, consulted Attorney John Slane, of Heagney, Lennon & Slane, when their neighbors, Jianhua and Yvonne Tsoi, decided to construct a driveway. Gerald Baruno requested that Attorney Slane pursue an adverse possession claim. In February 2006, Attorney Slane filed a request for a temporary court injunction, based on adverse possession, which the court denied. At Elizabeth Baruno's deposition, Slane discovered that there was a restrictive covenant in the land records that expressly prohibited the driveway. Months after the Tsois commenced construction, Slane moved to enforce the restrictive covenant. Attorney Fred Rickles, of the law firm of Gilbride, Tusa, filed an appearance for the Barunos, in lieu of Slane, and alleged violation of the restrictive covenant. In 2008, the Tsois agreed to pay $250,000 and to remediate the property. The Tsois filed a petition for bankruptcy relief and did not pay $250,000 or remediate. The Barunos sued Attorney Slane, alleging that he was negligent, because he did not discover the restrictive covenant earlier. The plaintiffs alleged that earlier discovery would have resulted in injunctive relief, and that their property would not have been damaged. The court credited the testimony of the plaintiffs' expert, Jeffrey Hecht, that Attorney Slane violated the standard of care, because he did not examine the maps and property deeds in the land records and pursue a claim for violation of the restrictive covenant. '[H]e certainly had time to spend a few moments examining these deeds,' wrote the court, 'while he was at the land records.' It was more probable than not that a monetary judgment in the underlying action would have been collectible. The court awarded $250,000 for loss of property value from excess surface water, $120,000 to remediate, $2,397 for engineering, $238,034 for attorneys' fees to Gilbride Tusa and $10,386 for reimbursement of fees paid to Attorney Slane and his law firm. The plaintiffs were not entitled to damages for loss of enjoyment.