Notable Results

February 2017- Andrew Feldman successfully defended an appeal that had been taken before Florida's Third District Court of Appeal. The appeal had challenged in order which had refused to quash service of process over a resident of Thailand in a commercial contract matter. Andrew argued that the trial court correctly determined that substituted service had been properly effected pursuant to the provisions of Florida’s Long Arm Statute, and that the process server in Thailand had been properly appointed pursuant to Florida’s Rules of Civil Procedure.

September 2016 - Rob Klein secured a $1.1 million arbitration award in favor of a client who lost his investment in uncut diamonds. While the mining operation appeared to have been legitimate, the arbitration award found that the broker who invested the client funds used the majority of those funds for his own purposes, including day trading sessions with his wife. The defendant was sued for fraud and civil theft.

July 2016 – Robert Klein and Andrew Feldman were successful in affirming a judgment for fees awarded as a sanction, following a trial court determination to strike claims for defamation and malicious prosecution as a sham. Florida’s Fourth District Court of Appeal had previously affirmed the trial court ruling dismissing the case.
4dca.org - June 20, 2016 - 4D14-4599.op.pdf

November 2015 - Rob Klein, Andrew Feldman, and Mark Sullivan were successful before the Fourth District Court of Appeal in affirming the trial Court’s February 2014 order striking the plaintiff’s defamation and malicious prosecution claims against their lawyer clients as a sham.
http://www.4dca.org/opinions/Nov.%202015/11-4-15/4D14-957.pdf
http://www.law360.com/articles/723335/appeals-court-agrees-former-judge-s-slander-suit-was-sham

October 2015 - Following the June 2014 striking of the same claims as a sham, Rob Klein and Mark Sullivan secured a $101,000 fee sanction judgment on behalf of their attorney clients, against a Miami Beach Hotel that had sued the firm for malpractice in the representation of the hotel in a fire safety dispute with the City of Miami Beach.

April 2015- Rob Klein and Nicole Hanrahan secured a defense verdict for their clients after a two-week jury trial in a legal malpractice action. The plaintiff argued that the defendant attorneys had failed to appreciate complex admiralty law provisions relating to a proposed New Vessel Determination on a yacht that was being rebuilt by their client. The Firm argued that it had properly interpreted the regulations, and advised the clients accordingly, but that the Coast Guard arbitrarily applied the regulations. The Firm also argued that the overwhelming majority of the renovations to the yacht took place before they were ever retained, and that the client had embarked upon a ten million dollar renovation despite the fact that it was highly unlikely that the vessel would receive the requested certification.

January 2015: Rob Klein and Andrew Feldman successfully defended the appeal of a partial summary judgment to Florida’s Second District Court of Appeal. The underlying judgment had been secured in a claim brought by an insurance carrier by way of assignment, claiming a nationally recognized defense firm failed to adequately represent the carrier’s insured. The law firm had represented the insured at the request of the carrier, and had arguably failed to advise the client of potential excess exposure presented by the underlying claim. The Firm argued on appeal that assignment of the claim violated Florida law and that there was otherwise no legitimate basis for a claim based on equitable subrogation, since the carrier had voluntarily paid several million dollars in excess of the primary policy limits to settle the claims against both the carrier and its insured. The Firm also argued that there was no damage to the insured, as a result of the carrier’s voluntary settlement of a threatened bad faith claim.

October 2014 – Rob Klein and partner Alex Diaz successfully defended a two-week breach of fiduciary claim in front of Federal Judge Cecelia Altonaga. The two plaintiffs, who were both attorneys, accused the defendant attorneys of breaching a fee agreement and breaching their fiduciary obligations to former co-counsel in a Federal c class action. The defendants contended that the plaintiffs had arbitrarily dismissed one of the former co-counsel from the engagement, and that they were ethically bound to retain a portion of the fees in their trust account pending resolution of that dispute, which was completely independent of any claims involving the defendants. The jury agreed, after deliberating for less than an hour.

October 2014: Rob Klein and Mark Sullivan were successful in securing an $84,500 fee award (the full requested amount) after the trial court struck a defamation claim filed against a [local south Florida law firm] as a sham pleading. The fees were awarded against both the plaintiff and the plaintiff’s attorney, based upon the court’s determination that the underlying action had no legal or factual merit, and no reasonable prospect of success.

June 2014: Rob Klein and Mark Sullivan obtained a final judgment striking a Plaintiffs’ legal malpractice claim as a sham, on behalf of their attorney clients, who had been sued for alleged negligence while representing a Miami Beach hotel in a fire safety dispute with the City of Miami Beach.

The malpractice suit was predicated on the claim that the City would not have attempted to force the Hotel to install fire sprinklers if the defendant attorneys had properly argued that the Hotel was exempt from current code requirements due to its historical status. Over two lengthy evidentiary hearings, Messrs. Klein and Sullivan demonstrated to the Court that this supposedly winning argument never would have succeeded. The argument was based predominantly upon extensive evidence of actions taken by the Plaintiff after he had discharged the Defendants, which were uniformly unsuccessful. Plaintiff's later efforts actually led to years of expensive litigation while he pursued the historical property argument through successor counsel.

The Firm was also able to demonstrate that the Plaintiff had regularly advocated positions (often under oath) in the later administrative and state court proceedings which were inconsistent with positions taken in the malpractice action. Order.

February 2014: Partners Robert Klein and Mark Sullivan were successful in striking a defamation and malicious prosecution claim, brought against attorney defendants who had secured a large judgment against the plaintiff’s law firm, for unjustly depriving those defendants of the benefit of their co-counsel agreement with the plaintiff’s firm and others. The stricken claim for malicious prosecution was predicated on the argument that the underlying court’s judgment was entered against the plaintiff’s firm but not the plaintiff in her individual capacity, and that the claims against the individual attorney were therefore brought without probable cause. The stricken defamation claim argued in turn that statements regarding the outcome of the case that were attributed to the defendants in a local publication were therefore false in regard to the plaintiff as an individual. Messrs. Klein and Sullivan argued in a motion to strike and subsequent evidentiary hearing that the plaintiff’s argument was factually false, in light of the extraordinarily negative factual findings the underlying trial court directed to the plaintiff herself, and legally frivolous. The argument was accepted by the court in January of 2014, and reduced to written order in February.

Motion to Strike References: Attorneys File Motion To Kill Judge Tosses Laura Watson Defamation Suit Embattled Judges Defamation Suit Against Law Firms Tossed

October 2013: Rob Klein and Andrew Feldman were successful in securing a dismissal of a class action lawsuit against the Third Party Administrator of a municipal worker’s compensation program. The Plaintiff had contended that the Third Party Administrator and its municipal client had failed to comply with the mandates of Florida’s “Heart Lung” bill, which provides for certain presumptions of injury where first responders are diagnosed with respiratory or cardiac disorders. The Defendant argued that the class action could not be brought in the State’s circuit court, given the exclusive jurisdiction set forth in Chapter 440, Florida’s Worker’s Compensation statute. The Defendant also argued that the case was not appropriate for class-wide resolution.

October 2013: Rob Klein and Alex Diaz were successful in a two week jury trial, based upon claims of legal malpractice, breach of fiduciary duty, and conversion. The claim was based in part upon the Plaintiffs’ contention that the Defendant attorneys had recovered an excessive fee while serving as counsel for several objectors in class action litigation against the Bank of America. Plaintiff’s also claimed that the objections had not been properly presented or preserved for appeal, despite the fact that the trial court in the class action proceedings ultimately ruled that some $35 million would be placed back into the class award, as a result of a cy pres objection that was raised by the Defendant attorneys. The jury returned a verdict for the Defendant attorneys in less than two hours.

August 2013: Rob Klein and Mark Sullivan were successful in striking a legal malpractice/breach of fiduciary duty claim as a sham in an action against an attorney in Ft. Lauderdale, Florida. The plaintiff claimed his attorney had deliberately misinterpreted a fee agreement, and that the attorney had retained a litigation retainer which the plaintiff claimed he had paid personally to the attorney’s firm. The Firm’s motion to strike explained that the monies provided as a retainer did not actually belong to the plaintiff, and were characterized as a contribution to the working capital of the attorney’s corporate client, to be used for the litigation. After an evidentiary hearing, the trial court agreed that the plaintiff could not seek recovery on any one of multiple theories of liability, where the funds in question had been provided for the benefit of the corporate client, and the plaintiff had received beneficial tax treatment where the funds in question were characterized as a contribution to capital on his tax returns. The court specifically entered an order allowing recovery of attorney’s fees, based upon a finding that the entire claim was frivolous.

August 2013: The U.S. Court of Appeals for the 11th Circuit affirmed a summary judgment obtained by Michael Shelley and Richard Jones in the Southern District of Florida. In Rodriguez v. Akal Security, Inc., the plaintiff, a detainee at a federal detention center, was seriously injured after climbing to the top of a piece of gym equipment installed in the detention center and either falling or jumping from it. The plaintiff alleged that the contractor was negligent in failing to supervise him, provide him instruction in the use of a piece of gym, or otherwise warn him of a dangerous condition. The 11th Circuit affirmed the summary judgment for the defendant, finding on a de novo review that the danger created by the gym equipment was open and obvious and that the plaintiff was the proximate cause of his own injuries. (11th Circuit Opinion)

May 2013: Michael Shelley, Mark Sullivan, and Andrew Feldman, were successful in affirming a directed verdict entered in favor of a Miami Beach hotel following trial. On May 29, 2013, the Third District Court of Appeal entered a per curiam decision affirming the directed verdict entered in “Elegant” Elliot Offen v. Intercontinental Hotels Corporation, et al (see below, June 2012).

March 2013: Rob Klein and Andrew Feldman successfully defended an appeal from a summary judgment secured by Mark Sullivan in Soberon v. Shelborne. The Plaintiff claimed she suffered severe hand injuries which required surgery, when she gratuitously attempted to repair a common area toilet at a hotel, which she claimed was not properly functioning. The Firm successfully argued that the premises owner had no reason to anticipate that a customer would attempt to perform her own repairs, given that scenario, and therefore had no duty to protect her from injuring herself while doing so.

February 2013: Rob Klein and Lisa Harris were successful in a multi-week trial of a legal malpractice claim against a large national defense firm, which had purportedly failed to advise an insurance carrier client that it was being “set up” for bad faith in a claim against an insured, who was represented by the Firm. The insurance company ultimately settled the underlying claim and a potential claim for bad faith for $7.5 million. The law firm’s primary defense was based upon its contention that the carrier had no legitimate exposure to a bad faith claim in Florida, and that the Firm simply did not have sufficient information to advise the carrier to settle the claim, which was not yet in suit. The Plaintiff in the underlying action failed to provide any meaningful information whatsoever as to the scope of the claimant’s injuries, and there was a legitimate question as to whether or not the insured was at fault for the accident. The defendants also argued that the carrier settled the potential bad faith case claim for reasons which were wholly unrelated to any exposure posed by the underlying claim, to the extent that the carrier was using unlicensed claims personnel to adjust claims in Florida, and had established policy limits reserves on the underlying claim without ever consulting the firm. The jury returned a verdict in less than an hour.

February 2013: Michael Shelley and Richard Jones obtained summary judgment in favor of a government contractor who provided security services at an immigration detention center in the case of Rodriguez v. Akal filed in U.S. District Court for the Southern District of Florida. The plaintiff, a detainee, was rendered a quadriplegic when he was injured after either falling or jumping from gym equipment installed in the detention center. The plaintiff alleged that the contractor was negligent in failing to supervise him, provide him instruction in the use of the equipment, or otherwise warn him of a dangerous condition. Summary judgment was granted on the theory that the danger created by the gym equipment was open and obvious and that the plaintiff was the proximate cause of his own injuries.

December 2012: Rob Klein and Richard Jones were successful in affirming a summary judgment secured on behalf of an attorney who served as an escrow agent to a transaction between a home buyer and a home builder. The attorney was sued by a private lender who loaned money to the buyer to be used in the purchase a home, claiming he was a third-party beneficiary of the escrow agreement regarding alleged improperly distributed funds. The defense was able to demonstrate that the private lender was neither a party to the escrow agreement nor a party to the contract between the buyer and the builder and, as a result, the attorney did not owe any duties to the lender.

Omnibus Order on Defendant’s Motion for Summary Judgment Third District Opinion – Brock v. Miklas

December 2012: Joseph Lowe and Michael Shelley obtained judgment on the pleadings in favor of Evanston Insurance Company, in an action for breach of contract and declaratory relief filed in the U.S. District Court for the Southern District of Florida. Mssrs. Lowe and Shelley successfully argued that Evanston did not have a duty to defend its insured on the basis that the lawsuit against the insured was an interrelated prior act, and therefore excluded under the insurance policy. Evanston’s motion for judgment on the pleadings, and the order granting this motion, can be found here.

October 2012: Rob Klein and Mark Sullivan were successful in the trial of a bar grievance matter against an attorney who had been accused of making false statements to a state circuit court judge, who ultimately found the attorney guilty of contempt in a civil proceeding. The client admitted a lack of candor, but refused to accept a lengthy suspension which had been proposed by The Florida Bar. The Firm defended the case based principally upon the contention that the misstatements in open court were not premeditated, but rather the results of a brief moment of “panic,” when the attorney was suddenly cross examined by the court in a matter which he had simply attended as an interested observer. Under the circumstances, the Firm argued that the attorney should not be subjected to the same kind of discipline as other lawyers who had been guilty of deliberate, premeditated lack of candor, including statements that were calculated to mislead the Court or the filing of fraudulent documentation to support a claim. The Referee appointed by the Supreme Court of Florida agreed that the admitted misconduct did not warrant suspension, but instead recommended a public reprimand.

September 2012: Richard Jones was successful in obtaining dismissal with prejudice against a bankruptcy attorney. The plaintiff alleged that the attorney was negligent in rendering pre-and-post petition advice regarding the decision to file a Chapter 11 petition and in preventing the subsequent conversion of the case to a Chapter 7. After removing the case to bankruptcy court, dismissal was secured on the theory that the claim was implausible under the standard set forth in Iqbal v. Ashcroft and that the claim was outside the statute of limitations. This relief was then successfully defended against a subsequent effort for relief under Rule 60(b) alleging mistake of law, and an improperly filed appeal.

Order Denying Motion to Reopen Case and for Rehearing

June 2012: Michael Shelley and Mark Sullivan obtained a directed verdict and final judgment in favor of a Miami Beach hotel following four days of jury trial on a malicious prosecution claim in “Elegant” Elliot Offen v. Intercontinental Hotels Corporation, et al. After previously dispensing with the plaintiff’s other four counts on dispositive motions, Mr. Shelley and Mr. Sullivan defended the sole remaining claim at trial, which resulted in the court entering directed verdicts on multiple distinct issues at the close of all evidence, including a critical ruling that the plaintiff failed to establish any relation between the actions of alleged tortfeasors and the defendants in the case. The Plaintiff, who was once a fixture on the Howard Stern radio show, was seeking damages for alleged Post-Traumatic Stress Disorder resulting from his arrest for refusing to leave the hotel premises after the police requested him to do so.

May 2012: Alex Diaz successfully affirmed the dismissal of a legal malpractice complaint against a criminal defense attorney that he had previously secured. The plaintiff alleged that the attorney had provided negligent legal services. The court dismissed the plaintiff’s claim on the basis that the plaintiff’s complaint failed to state a cause of action. The Third District Court of Appeal agreed with the trial court and affirmed the dismissal.

February 2012: Partners Robert Klein, Sherryll Dunaj and Mark Sullivan successfully affirmed the second motion for summary judgment in a case against an attorney alleging violations of the Federal Fair Debt Collection Practices Act (“FDCPA”) , 15 USC Sec. 1692(e) (5). The Federal District Court in that matter had granted summary judgment on a prior occasion in favor of the Defendant attorney. The U.S. Court of Appeals for the 11th Circuit had reversed the summary judgment, based upon the belief that there were genuine issues of material fact as to whether or not the Defendant had intended to take the legal action which he threatened in various Writs of Execution. Upon remand, the Firm was able to demonstrate that its client had actively attempted to execute on the Writs, but was unable to levy or seize any of the Plaintiff’s assets due to her recalcitrance during the discovery process. For that reason, the 11th Circuit determined that its prior ruling was not the “law of the case,” and that summary judgment had been properly entered in favor of the Defendant when the case was remanded following the first appeal.

11th Circuit Opinion - Newman v. Ormond

October 2011: Following a six-day evidentiary hearing on a Sworn Motion to Strike the Plaintiff’s Complaint as a Sham Pleading, a Miami Dade Circuit Court entered a 15 page written order dismissing a plaintiff’s legal malpractice lawsuit against her former divorce attorney with prejudice. At the evidentiary hearing, Klein Glasser attorneys Rob Klein and Mark Sullivan presented extensive testimony and documentary evidence from the underlying divorce proceeding which demonstrated that virtually every allegation of the malpractice complaint was false. Although the Plaintiff blamed her divorce attorney for her protracted and bitter divorce, the court held that “Given the sheer quantity of allegations that are either (1) demonstrably false when compared to the record, or (2) based on positions that Keren would be legally precluded from asserting at trial, the Court finds that this case meets the admittedly high burden set forth in Rhea v. Hackney and other cases discussing summary disposition of frivolous cases.” The trial court’s order was affirmed by the Third District Court of Appeal on June 29, 2011.

June 2011: Rob Klein and Houston Park were successful in affirming a summary judgment which Mr. Park had secured for attorney clients who had allegedly failed to initiate a timely legal malpractice action on behalf of that very same client. Ironically, the Court of Appeal ultimately agreed with the Firm’s contention that the statute of limitations had already run on the potential legal malpractice claim at the time that the Defendant attorneys were retained to investigate that claim, or had not even accrued until well after the Firm was discharged.

Fourth District Opinion - McLeod v. Bankier

May 2011: Rob Klein, Mark Sullivan and Sherry Dunaj obtained a summary judgment for an attorney client in a Fair Debt Collection Practices Act claim filed in the United States District Court for the Southern District of Florida. The firm had secured a prior summary judgment, which was affirmed in large part by the U.S. Court of Appeals for the 11th Circuit. However, the Court of Appeals had remanded the case for trial on a single issue related to the client's intent to actually follow through with collection proceedings. After developing an extensive record on that issue, the Firm filed a renewed motion for summary judgment, arguing successfully that the appellate court ruling would not prevent a second summary judgment, given additional evidence which had been developed in the case.

Order Granting Summary Judgment

May 2011: Mike Breen was successful in obtaining a summary judgment on behalf of a defendant title agent. The plaintiff landowners alleged that by hiring the title company to act as closing agent, perform a title search and apply for and cause a title insurance policy to be issued on the owner’s behalf, a duty arose to discover zoning and code violations on the property. The defense successfully demonstrated that no duty existed either contractually or at common law.

January 2011: Mike Breen in the Fort Myers office, were successful in obtaining a summary judgment on behalf of a subcontractor who performed renovation work at a shopping center. A suit was brought by the landowner against the general contractor alleging defective work. The general in turn sued the various subcontractors that were hired for the project. The defense successfully argued that the settlement of a mechanic’s lien between the subcontractor and landowner encompassed the settlement of any defective work allegedly performed by the subcontractor, and therefore the general contractor could not maintain its third party suit.”

December 2010: Rob Klein was successful in affirming a trial court verdict striking a Plaintiff’s legal malpractice claim as a sham. The plaintiffs had sued the Firm’s clients based upon the contention that the defendant law firm had failed to initiate and pursue child custody proceedings in Argentina pursuant to provisions of the Hague Convention. Through discovery that was initiated in Argentina, the Firm was able to demonstrate that the Plaintiff had actually been a formal party to divorce proceedings in Argentina, and had submitted to the jurisdiction of the Argentine Courts. Accordingly, there was no basis for an assertion of jurisdiction over those same parties in the United States.

Third District Opinion – Esposito v. Wayne

December 2010: Greg Glasser, Rob Klein and Richard Jones successfully affirmed a summary judgment secured in a case involving a security guard who shot and seriously injured the plaintiff. The Firm demonstrated that the defendant was an independent contractor and that the alleged negligent acts occurred outside the scope of his employment.

December 2010: Rob Klein and Yelena Shneyderman were successful in affirming a summary judgment in favor of the Securities Firm in Miami, which had employed a lawyer who was essentially running a Ponzi scheme out of the law firm, without the knowledge of the principals of the firm. The defendant was sued by a half a dozen prominent South American investors, all of whom claimed that they had advanced hundreds of thousands of dollars for investment in a massive telecommunications network in Africa. Financing was sought through some of the largest private capital firms in Europe. Ultimately, however, none of the deals ever materialized. The State Trial Court ultimately granted summary judgment for the firm, after determining that the “scam” was outside the course and scope of the former attorneys’ responsibility with the firm, and that the firm had no reason to suspect that the attorney had been operating a Ponzi scheme in conjunction with several other wealthy South American brokers. The court also determined that several of the transactions were unenforceable, to the extent that they were usurious under Florida law, and criminally usurious loans cannot be enforced.

Third District Opinion – Saralegui v. Sacher Zelman

September 2010: Rob Klein was successful in defeating the attempts of a cruise line to prevent an attorney who had formerly represented the cruise line in a personal injury litigation from prosecuting a personal injury claim against the former cruise line client. In a published decision, the U.S. District Court for the Southern District of Florida ruled that the cruise line had not demonstrated that the attorney’s prior legal work for the cruise line was “substantially related” to the case which the attorney had filed against his former client.

U.S. Southern District Opinion – Hernandez v. Royal Caribbean

November 2009: Rob Klein has been favored with a judgment in the trial of a legal malpractice action, arising out of the failure to properly perfect UCC-1 financing liens in a large loan transaction between their former client, the Strategica Capital Corporation, and the Appletree Group. Strategica claimed that the failure to perfect the liens had caused Strategica several million dollars in attorney’s fees and interest when the Appletree Group filed for Chapter 11 reorganization. The Trial Court ultimately determined that the defendant in that matter, the Sacher Zelman firm in Miami, had handled the transaction appropriately, and was not responsible for the filing and the recording of the failed UCC1's. The Court also determined that the firm had no obligation to insure the viability or priority of those liens, post-closing.

September 2009: Rob Klein and Yelena Shneyderman were successful in affirming a Trial Court judgment striking a legal malpractice claim as a sham pleading. Florida’s Third District Court of Appeal agreed with the Trial Courts assessment that the attorney defendants had no ability to file Hague Convention proceedings in Argentina, seeking custody of their client’s two year old child and, further, that the law firm’s former client had effectively waived any legitimate arguments that could have been raised by the Florida law firm where the client specifically appeared in Argentine proceedings, thus submitting himself to the jurisdiction of the Argentine Courts. The firm used certified translations of Argentine Court documents to support its position.

Third District Opinion - Esposito v. Bluestein and Wayne, P.A.

July 2009: In another opinion from Florida's Third District Court of Appeal, Rob Klein and Yelena Shneyderman were again successful in affirming a Trial Court Order dismissing a legal malpractice claim with prejudice, based upon application of Florida’s judicial immunity. The law firm defendant had been sued when it failed to discharge a number of garnishment writs, which had sought to garnish accounts in various offshore banks, belonging to a judgment debtor, whom the defendant lawyer had sued successfully in a Federal Securities proceeding. The Defendant attorney had successfully pursued the various writs of garnishment, but had failed to discharge the writs, even after the underlying judgment was satisfied. The firm argued that the lawyers' conduct was not subject to a civil suit, even assuming that the writs should have been discharged once the underlying judgment was satisfied, since the writs were an ancillary proceeding, related to the underlying securities litigation. Thus, the firm argued that all of the actions undertaken by the defendant attorney were privileged, as a matter of law.

Third District Opinion – American International Division Assurance SP v. Formoso-Murias