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.
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)