IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA THIRD DISTRICT CASE NOS. 3D D (Consolidated)

Transcription

1 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA THIRD DISTRICT CASE NOS. 3D D (Consolidated) THERESA LEACH BRADLEY, v. Appellant, ROBERT BRUCE MILLER, BAR NO , GREEN, KAHN, PIOTRKOWSKI, P.A., (FORMERLY GREEN, KAHN, PIOTRKOWSKI, MILLER, P.A.), Appellees. ANSWER BRIEF OF APPELLEES ROBERT BRUCE MILLER and GREEN, KAHN, PIOTRKOWSKI, P.A. On Appeal of a Final Order of the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida Nancy W. Gregoire, Esq. D. David Keller, Esq. BUNNELL, WOULFE, KIRSCHBAUM, KELLER, McINTYRE & GREGOIRE, P.A. Attorneys for Appellees 888 East Las Olas Boulevard 4th Floor

2 Fort Lauderdale, Florida Telephone: Facsimile: i

3 TABLE OF CONTENTS Page TABLE OF CONTENTS... TABLE OF CITATIONS... PREFACE... STATEMENT OF THE CASE AND OF THE FACTS... SUMMARY OF ARGUMENT... ARGUMENT... I. II. CONCLUSION... CERTIFICATE OF SERVICE... CERTIFICATE OF COMPLIANCE... ii

4 TABLE OF CITATIONS Page iii

5 PREFACE iv

6 STATEMENT OF THE CASE AND OF THE FACTS A. Introduction B. Procedure Below C. Evidence Below D. The Order 1. This Court heard argument on Defendants Third Motion for Summary Judgment on October 10, At that hearing the Court granted Summary Judgment to the Defendants on all remaining issues relating to Plaintiff s various claims against Defendants with the sole exception of whether Defendants failed to return documents to Plaintiff in connection with her claims against Dean Witter, and if so, whether such failure prejudiced Plaintiff in her claims in that matter. A copy of the Order reflecting the ruling of the court dated October 17, 2002 is attached as Exhibit A. Thus, the only remaining issue in this case not previously resolved by summary judgment for defendants is the following: (See 2 of Exhibit A). Whether Defendants failed to return Plaintiff s records to her and prejudiced her claim against Dean Witter. 2. Plaintiff has failed to establish record evidence that Defendants failed to provide to Plaintiff or subsequent counsel her records regarding the Dean Witter case, or that such failure, if it occurred, prejudiced her case against Dean Witter. Plaintiff has also failed to present any expert testimony to rebut the affidavits of Howard Tescher, Defendant s expert, or the affidavit of Plaintiff s former counsel, Lee Schillinger, which are attached as Composite Exhibit B and Exhibit C respectively, as required by applicable Florida law. 3. Defendants are entitled to a Summary Judgment as to the remaining claim as a matter of 1

7 law because there remain no genuine issues of material fact or law in the record before the Court based on the pleadings and on the Affidavits of Howard Tescher and Lee Schillinger. MEMORANDUM OF LAW I. Summary Judgment standard. Summary judgment is available where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fla. R. Civ. P (c); see also Martin County v. Edenfield, 609 So. 2d 27, 30 (Fla. 1992); Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985) (directing that summary judgment is intended for cases where the facts are so crystallized as to leave only questions of law); Holl v. Talcott, 191 So. 2d 40, (Fla. 1966) (establishing summary judgment guidelines); Buitrago v. Rohr, 672 So. 2d 646, 648 (Fla. 4th DCA 1996) (noting that summary judgment eliminates issues that should not be submitted to a jury); Hervey v. Alfonso, 650 So. 2d 644, 646 (Fla. 2d DCA 1995) (stating that [t]he function of the court is solely to determine whether the appropriate record presented in support of summary judgment conclusively shows that the plaintiff cannot prove the claim alleged as a matter of law ). II. Factual Background. In July, 1992, Plaintiff retained Defendants to represent her in a dispute against Prudential Securities (see Plaintiff s Fourth Amended Complaint 9). On or about November 4, 1992, the Plaintiff separately retained the Defendants to represent her in a dispute against Dean Witter, Bernice Samkoff, Justus Doering, and on other miscellaneous matters pursuant to a written Retainer Agreement for that date. (See a copy of the Retainer Agreement attached as Exhibit D). Plaintiff s Prudential Securities dispute was taken before an arbitration panel at final hearing on January 5 and 6, 1993, and on January 19 and 20, Following the hearings, the arbitration panel returned a decision in favor of Prudential Securities and against Plaintiff, Theresa Leach Bradley. After the arbitration panel in the Prudential matter rendered an adverse ruling, in correspondence 2

8 dated February 23, 1993, Ms. Bradley discharged the Defendants from further representing her in all matters, including the then pending Dean Witter suit (See a copy of the Plaintiff s February 23, 1993 letter attached as Exhibit E). Pursuant to Plaintiff s instructions, the Defendants withdrew from representing her in the Dean Witter matter in early March, 1993 (See a copy of the Order Granting Motion to Withdraw attached as Exhibit F). Plaintiff filed her original Complaint against Defendants, Miller and Green, Kahn Piotrkowski, P.A. on May 19, (See Plaintiff s Complaint dated May 19, 1998) On February 15, 2000, Plaintiff filed a Fourth Amended Complaint against these Defendants alleging Legal Malpractice, Fraud and Intentional Infliction of Emotional Distress as to Defendants handling of the Prudential Securities case as well as Dean Witter. This Court has granted three previous Summary Judgment motions filed by Defendants. On Defendant s First Motion for Summary Judgment, this Court granted Defendants Motion for Summary Judgment as to all claims arising out of Plaintiff s arbitration against Prudential Securities. The Court further granted Defendants Motion for Summary Judgment as to Plaintiff s claim for Intentional Infliction of Emotional Distress (see Order dated July 30, 2001 attached as Exhibit G). On Defendant s Second Motion for Summary Judgment, this Court granted Summary Judgment to Defendant on all issues with respect to Plaintiff s claims for legal malpractice as to the Dean Witter matter (See Order dated November 21, 2001 attached as Exhibit H), and in its Order Resetting Trial dated January 31, 2002, enumerated the four final remaining issues for trial (See Exhibit I). These issues were: a. Whether the Defendants wrongfully converted money obtained on Plaintiff s behalf for its own use. b. Whether the Defendants committed fraud by misrepresenting the experience and capability in the handling of securities cases and whether Defendants committed fraud with respect to the Defendants retention of Harris Holzberg as an expert witness. c. Whether Plaintiff is entitled to the return of any unearned portion of the $15,000 flat fee pursuant to the November 4, 1992 retainer agreement. 3

9 d. Whether Defendants failed to return to the Plaintiff her records thereby prejudicing Plaintiff in her pursuit of her claim against Dean Witter. The Court granted Summary Judgment for Defendants on the first 3 of those issues by Order dated October 17, 2002 (See Exhibit A). The only remaining issue is whether Defendants failed to return documents and whether such failure prejudiced plaintiff s rights in her claim against Dean Witter. III. Argument A. Plaintiff s Documents Were Returned to Her. Plaintiff alleges that the Defendants failed to return to her documents and that doing so prejudiced the Plaintiff in her case against Dean Witter. (See Fourth Amended Complaint at 11). However, the evidence in the record establishes that the Defendants forwarded Plaintiff s documents to her subsequent counsel, Lee Schillinger. On April 9, 1993, in a letter to Schillinger from the Defendants, Defendants offered to copy the documents for Schillinger, indicating that the documents in Defendants possession related to the Dean Witter claim and Plaintiff s relationship with Ms. Samkoff. (See April 9, 1993 letter attached as Exhibit J.) In a letter to Schillinger dated April 12, 1993, after the Plaintiff showed up at Defendants office after normal business hours demanding her file, the Defendants informed Schillinger that the documents were sent out for photocopying. (See the April 12, 1993 letter attached as Exhibit K). Finally on April 13, 1993, the Defendants sent to Schillinger the original documents with respect to the Dean Witter matter and Samkoff matters. (See the April 13, 1993 letter attached as Exhibit L). Thereafter, Schillinger forwarded Plaintiff s documents to Plaintiff and obtained a release from Plaintiff acknowledging that she received these documents. (See Affidavit of Lee Schillinger attached as Exhibit C). Moreover, Plaintiff, by her own admission in a recently filed complaint entitled Theresa Bradley v. National Association of Securities Dealers Dispute Resolutions, Inc., et al., filed in the United States District Court for the District of Columbia ( The NASDDR Complaint ), states that she had and submitted to Dean Witter all of the documents she needed to pursue her arbitration claim. Specifically Plaintiff alleges at Paragraph 18 of the NASDDR Complaint: 4

10 Shortly thereafter, the Plaintiff and Dean Witter entered into standard pre-trial Discovery requests and the Plaintiff submitted over 8-years and 3,000 pages of documents and financial records for all of her bank, investment and brokerage accounts, including her Federal Income Tax Returns for the years relevant to the time period in her case, i.e., for the years 1985 through 1992, contiguous with the February 24, 1992 opening through October 16, 1992 closing her of Dean Witter account... A copy of the Complaint is Attached hereto as Exhibit M. 1 (Emphasis supplied). The gravamen of Plaintiff s Complaint against the NASDDR is the alleged errors which the American Arbitration Association committed in dismissing Plaintiff s case. Nowhere in the Complaint does Plaintiff allege that the arbitration was dismissed due to her lack of access or possession of records. To the contrary, she specifically alleges submission of a vast amount of documents which supported her claims against Dean Witter, allegations which are directly contrary to her claims in this case. Although not directly on point, the principal of judicial estoppel, an equitable doctrine used to prevent litigants from taking totally inconsistent positions in separate judicial proceedings, is instructive. See, Blumberg v. USAA Cas. Inc. Co., 790 So. 2d 1061, 1066 (Fla. 2001), citing Smith v. Avatar Properties, Inc., 714 So. 2d 1103, 1107 (Fla. 5 th DCA 1998). While The NASDDR Complaint which contains the inconsistent pleadings was filed after the instant lawsuit, which has yet to be concluded, the law supports Defendants argument that the Courts look disfavorably upon litigants taking inconsistent positions in different judicial proceedings. In this case, the Plaintiff has affirmatively asserted in The NASDDR Complaint allegations which are directly contrary to the allegations which Plaintiff has made in this case - that Plaintiff was prejudiced due to the Defendants failure to return her Dean Witter documents to her. Contrary to Plaintiff s repeated allegations that Defendants failed to turn over the Dean Witter file, Plaintiff by her own admission states that she had her entire file. Further, the undisputed record evidence establishes that Defendants did in fact turn over Plaintiff s file to successor counsel, Lee Schillinger, that Mr. Schillinger thereafter provided Plaintiff with all of her documents and that Plaintiff had all of her documents 1 Defendants filed a Request for the Court to Take Judicial Notice of this Complaint which was served on March 7,

11 to pursue her claim against Dean Witter. B. Affidavits of Howard Tescher in Support of Motion for Summary Judgment. In addition to the foregoing, Defendants rely on the Affidavits of Howard Tescher, an expert who has rendered his opinion after review of relevant documents, that even if Defendants failed to return certain documents of Plaintiff, it did not prejudice her case, as the necessary documents to prove her claim were available from Dean Witter, and because the dismissal of her claims based on failure to produce records was erroneous and would have been reversed if an appeal had been pursued. (See Composite Exhibit B, affidavits of Howard Tescher dated December 18, 2002 in this case, and April 6, 2000 in the case of Bradley v. Warfman, et al., Case No. CL AJ Palm Beach Circuit Court). C. Plaintiff has failed to present expert testimony as required to establish that the actions alleged caused her to lose her case. Finally, Plaintiff has also failed to provide any expert affidavit or testimony to establish that Plaintiff s lack of possession of documents prejudiced her in her claim against Dean Witter. Without expert testimony to establish an appropriate standard of care and the violation thereof by the Defendants, a lay person can only speculate as to whether the Plaintiff s purported lack of documents prejudiced her in her claim. Urbanek v. Cohn, 531 So. 2d 427 (Fla. 4 th DCA 1988); citing Willage v. The Law Offices of Wallace and Breslow, P.A., 415 So. 2d 767 (Fla. 3d DCA 1982); Proto v. Graham, 788 So. 2d 393 (Fla. 5 th DCA 2001); Sierra v. Shevin, 767 So. 2d 524 (Fla. 3d DCA 2000). The Plaintiff has failed to provide, disclose, identify or list any expert witness who has testified or who will testify on her behalf as to the applicable standard of care and violation of that standard, as required under the pre-trial order dated May 8, 2001 and adopted in the January 31, 2002 Order Resetting Cause for Trial. The Plaintiff previously disclosed as experts Stanley Buky, who has confirmed he will not be testifying, and herself. The Plaintiff lacks the necessary qualifications to testify as an expert. It is axiomatic that expert testimony is required in order to establish the applicable standard of care and/or its violation as well as causation in a case for legal malpractice. Since Plaintiff has not, provided any expert testimony that the alleged failure to return 6

12 documents prejudiced her case against Dean Witter, her claim must fail. Other than Plaintiff s own allegations, (which are now inconsistent with a current, but later filed Court pleading), Plaintiff has adduced no record evidence by sworn affidavit or otherwise, to establish that she was prejudiced in her pursuit of her claim against Dean Witter by anything Defendants did or failed to do in connection with returning her records. As there is no genuine issue of material fact with respect to this issue, Defendants are entitled to a Summary Judgment as a matter of law. 7

13 SUMMARY OF ARGUMENT 8

14 ARGUMENT I. A. Standard of Review. 9

15 CONCLUSION For the foregoing reasons, Respectfully submitted, BUNNELL, WOULFE, KIRSCHBAUM, KELLER, McINTYRE & GREGOIRE, P.A. Attorneys for Appellees 888 East Las Olas Boulevard 4th Floor Fort Lauderdale, Florida Telephone: Facsimile: By: Nancy W. Gregoire Florida Bar No D. David Keller Florida Bar No

16 CERTIFICATE OF SERVICE We certify that a true and correct copy of the above and foregoing was furnished by U.S. Mail to Ms. Theresa Bradley, pro se, 311 South Harris Street, Sandersville, Georgia and 6418 Old Post Court, Columbus, Georgia 31909, and to N. Fraser Schuh, III, Esq., Co-Counsel for Robert Bruce Miller, Miller & Schuh, P.A., Biscayne Boulevard, Suite 200, Aventura, Florida 33180, this day of April, CERTIFICATE OF COMPLIANCE We certify that this brief complies with the font requirements set forth in Florida Rule of Appellate Procedure 9.210(a)(2). Respectfully submitted, BUNNELL, WOULFE, KIRSCHBAUM, KELLER, McINTYRE & GREGOIRE, P.A. Attorneys for Appellees 888 East Las Olas Boulevard 4th Floor Fort Lauderdale, Florida Telephone: Facsimile: By: Nancy W. Gregoire Florida Bar No