Bovino v. MacMillan, 4D11-3105

The Law Offices of Robin Bresky recently won reversal of a trial court’s erroneous order finding that our client/Appellant, a Colorado attorney, engaged in the unauthorized practice of law. The Appellant had a broad power of attorney (POA) relating to the financial affairs of a man that he represented in Colorado. That man’s mother later initiated a guardianship proceeding over her son in Broward County, alleging that her son was unable to manage his own affairs. Our client filed an objection to the guardianship petition based on the existence of the POA that he held. The trial court struck our client’s filing based on a finding that it constituted the unauthorized practice of law because our client was not licensed as a Florida attorney.

On appeal, we argued that our client/Appellant had intervened in the guardianship proceeding as an interested person pursuant to the guardianship statutes rather than in his capacity as the proposed ward’s attorney. We called the appellate court’s attention to the fact that Appellant had clearly stated in his objection in the guardianship case that he was filing the documents on his own behalf. We argued it was error for the lower tribunal to find this attorney was engaging in the unauthorized practice of law and that our client believed it was his fiduciary duty to bring the existence of the POA to the attention of lower tribunal. We further argued public policy should encourage this disclosure.

The Fourth DCA held in a written opinion that Appellant’s objection in the guardianship proceeding did not constitute the unauthorized practice of law because Appellant did not purport to represent the client as his attorney in the proceeding. The Fourth DCA reversed the order on appeal and remanded for further proceedings. The reversal of the erroneous order finding that our client engaged in the unauthorized practice of law vindicates our client’s professional reputation.

Leo v. Leo
Case No. 4D10-5127

In this family law appeal, appellant, Former Wife, appealed an order finding her in civil contempt. This appeal stemmed from a final judgment of dissolution of marriage between the appellant and the appellee, Former Husband. Subsequent to entry of the final judgment, Former Husband filed a motion for civil contempt and enforcement, alleging that Former Wife failed to comply with provisions in the final judgment, as well as an agreed order entered by the trial court. Former Husband’s attorney filed this motion alleging the Former Wife failed to return Former Husband’s belongings.

A hearing was scheduled on Former Husband’s motion for civil contempt but prior to the hearing, Former Husband’s attorney informed Former Wife’s attorney that the hearing had been cancelled because the trial court made its ruling. Former Husband then provided the trial court with two proposed orders, both finding Former Wife in civil contempt, one of which was ultimately adopted by the trial court. The adopted order stated that “it is undisputed that Former Wife has willfully and wantonly violated the Agreed Order”; that “Former Wife has failed to meet her burden of proving that she either lacked or presently lacks the ability to comply with the Court’s Final Judgment and Agreed Order, or that she is not in willful non-compliance with lawful orders of this Court”; that Former Wife’s non-compliance was “willful and deliberate”; and that Former Wife “has the present ability to comply.”

The court reviewed the record and found that even though relevant evidence may have been presented during the preceding dissolution proceedings, Former Wife was still entitled to present evidence in the context of a civil contempt hearing. “A person facing civil contempt sanctions is entitled to notice and an opportunity to be heard.” Whitby v. Infinity Radio, Inc., 961 So. 2d 349, 355 (Fla. 4th DCA 2007). Because that civil contempt order was entered without an evidentiary hearing, the Fourth District Court of Appeal reversed and remanded this matter.

McLeod v. Elk, Bankier, Christu, P.A., 4D10 – 37
June 8, 2011

The Fourth District addressed the issue of whether the statute of limitations had expired before a claim for legal practice was filed.  In 1998, Robert McLeod hired Thomas Tew as his attorney in order to sue Fidelity Investments (“Fidelity”) for an alleged error that resulted in the wrongful liquidation of McLeod’s account. The parties to that action reached a settlement that contained a general release for Fidelity. McLeod believed that his account would be restored to the status quo ante.  It was not.

Tew withdrew from his representation of McLeod.  McLeod then hired Elk Bankier in 2002 to file an arbitration claim against Fidelity.  The arbitration panel found in favor of Fidelity in 2003. Bankier then suggested filing a malpractice suit against Tew and recommended an attorney who specialized in legal practice claims. That attorney advised McLeod that he had no valid claim against Tew.  In 2004, McLeod then sought the advice of another attorney, William Isenberg.  Isenberg recommended pursuing a legal practice claim against Tew.  McLeod filed a malpractice action against Bankier in 2008, arguing that Bankier negligently allowed the statute of limitations against Tew to expire. Bankier obtained summary judgment based on the two-year statute of limitations, which it contended began when Tew terminated his relationship with McLeod in 2000 or, at the latest, when the arbitration panel reached its decision in 2003.
On appeal, the Fourth District noted that section 95.031(1), Fla. Stat. states that “[a] cause of action accrues when the last element constituting the cause of action occurs.”  The Court reasoned that: (1) as Tew advised McLeod in March 2000 that he would not longer represent him, any possible action against Tew expired in March 2002 and Bankier could not be liable for failure to sue Tew for malpractice since they were not retained until December 2002; (2) even if the limitations to sue Tew began at the arbitration decision in 2003 and expired in 2005, McLeod was advised of his possible cause of action against Tew and did not file against Bankier until 2008, after the statute of limitations against it had expired in 2007; and (3) the latest date at which McLeod’s cause of action against Bankier accrued was 2004 based on when Bankier advised him of his cause of action against Tew, so that the two-year statute of limitations still barred McLeod’s claim against Bankier. The Fourth District affirmed.

Caproc Third Ave., L.L.C. v. Donisi Ins. Inc., and Donosi, 4D09-4792
June 1, 2011

The Fourth District wrote to address the issue of who may properly deny facts set forth in a judgment debtor’s affidavit for exemption under section 222.12, Florida Statutes.  Caproc Third Avenue, LLC (“Caproc”) obtained a final judgment against Charles Donisi. A writ of garnishment was issued against Donisi’s personal bank accounts. Donisi filed an Emergency Motion to Dissolve the Writ and executed an affidavit asserting his accounts were exempt from garnishment. In response, Caproc’s attorney filed an “attorney’s affidavit” that denied under oath the facts set forth in Donisi’s affidavit.  The trial court dissolved the writ and found the affidavit filed by Caproc’s attorney legally insufficient to satisfy Caproc’s burden under §222.12 to deny the facts under oath.

Caproc appealed, arguing that it was permissible under the statute for its attorney to execute the sworn denial of the debtor’s exemption affidavit. The Fourth District disagreed, holding that the language of the statute was clear and unambiguous in its requirement that the party who sued out the process, and not the party’s attorney, deny under oath the facts set forth by the debtor.  The Court stated S. Attractions, Inc. v. Grau for the proposition that “[u]nder a statute requiring an affidavit to be made by a particular person himself, his agent or attorney cannot make it.” 93 So.2d 120, 125 (Fla. 1967).  The Fourth District affirmed the dissolution of the writ.