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day of August, 2009.
.A.
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Boulevard, PH II, Two Caftan Center, Miami, Florida 33156
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• •IN THE CIRCUIT COURT OF THE 11thJUDICIAL CIRCUIT IN AND FORMIAMI-DADE COUNTY, FLORIDA
CASE NO.: 08-65074 CA 31
SAGIT TOVA GOTTFRIED, an individual,
Plaintiff,
V.
MAURICE JAY ICUTNER, an individual,MALTRICE JAY KUTNER ANDASSOCIATES, P.A., a Florida ProfessionalAssociation,
Defendants.
NOTICE OF FILING
Plaintiff, SAG1T TOVA GOTTFRIED, by and through the undersigned counsel, hereby gives
Notice of Filing the attached letter with a proposed Order on Defendants' Amended Motion to Strike
the Third Amended Complaint as a Sham Pleading from Robert M. Klein, Esq., which letter was hand-
delivered to the Court on August 18, 2010 but not emailed to or otherwise received by the undersigned
until August 19, 2010.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the forgoing was served upon Robert
M. Klein, Esq., Stephens, Lynn, Klein, Lacava, Hoffman & Puya, P.A., 9310 South Dadeland
BY:ROBERT A. STOK, ESQ.Florida Bar No: 857051
STCJK & ASSOCIATES, RA.2575 N.E. 191 5' STREET SUITE 204 • AvgNrunA, FLORIDA • 33130 - TEL: 305.935.4440 • FAX: 305.935.4470 • [email protected]
Joshua Kon
From: Jessica Pierson [Piersonagstephenslynn.com ]Sent: Thursday, August 19, 2010 10:21 AMTo: [email protected] ; [email protected] ; [email protected]: Gottfried.
Attachments: !mg-819090724.0f
Img-819090724.pdf(448 KB)
See attached letter to Judge Schlesinger and attached order.
Jessica Jo Pierson, legal assistant to Robert M. Klein, Esq.Stephens, Lynn, Klein, P.L.91305. Dadeiand Blvd., DatranMiami, FL 33156Tel: 305.670.3700Fax: 305 670 8592For more information about Stephens, Lynn, Klein, P.L. please visit the firm's web page at:http://www.StephensLynn.com .
Fax: 305.670.8592Wats: 800.329.2911
*CONFIDENTIALITY NOTICE: This e-mail message including attachments, if any, is intended only for theperson or entity to which it is addressed and may contain confidential and/or privileged material.Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intendedrecipient, please contact the sender by reply e-mail, destroy all copies of the original message, anddo not disseminate it further. If you are the intended recipient but do not wish to receivecommunications through this medium, please advise the sender immediately.
1
LAW OFFICES OF
SLKSTEPHENS LYNN KLEINLA CAVA & PUYA, PA.
Robert M. KleinAttorney At LawAlio Admitted InManschuotsE-Mail [email protected]
Two Danan Center -Ph II9130 South Dockland Boulevard
Miami, FL 33156Telephone 305.6703700Fax 305.670.8592Florida Wats 800.329.2911
August 18, 2010.
SENT VIA HAND-DELIVERY 'Honorable John SchlesingerDade County Courthouse.73 West Flagler Street, Room 1111Miami, FL 33130
RE: GOTTFRIED vs KUTNER, et al.Case No.: 08-65074 CA 31Our File No.; 08-0905
Dear Judge Schlesinger:
Per your instructions, attached is Defendants' proposed Orderof Dismissall.
If the.. proposed Order meets with your approval, I wouldappreciate it if you would execute the order and would ask thatyour Judicial Assistant return conformed copies to counsel for theparties in the enclosed envelopes:
Respectfully submitted,
(64,ust Al.
ROBERT M. KLEIN
RMK/jpEncl.
cc via e-mail: Mark Sullivan, Esq. (In the Firm)Maurice Kutner, Esq.Robert Stok, Esq.
H:\library\09\0130905\1\judge.Schleeingor09.wpd
Fort Lauderdale Oa:
Tampa Office
Fort Myers Office
West Palm Beach Office
Telephone 954.462.4602
Tcleithonen3.209S611
Telephone 239.939.7855
Telephone 561.655,1500
------------- ec, 011UZUMUU FlorldaVols 800.329.1501
IN THE CIRCUIT COURT OF THE 11"JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA
CASE NO: 08-65074 CA 31
SAGIT TOVA GOTTFRIED, an individual,CHAIN DAVID GOTTFRIED, anindividual, DANIEL GOTTFRIED andSTEFANIE GOTTFRIED, minor childrenby and through their natural guardiansSAGIT TOVA and CHAIN DAVIDGOTTFRIED,
Plaintiffs,VS.
MAURICE JAY KUTNER, an individual,MAURICE JAY KUTNER ANDASSOCIATES, P.A., a FloridaProfessional Association,
Defendants.
ORDER OF DISMISSAL WITH PREJUDICE
THIS CAUSE having come on before the Court for an Evidentiary
Hearing, commencing July 26, 2010, with a final day of evidence and
testimony on August 4, 2010. The Court has considered Defendant's
Sworn Motion to Strike, the Plaintiff's Motion to Strike
Defendant's Sworn Motion to Strike Plaintiff's Corrected Third
Amended Complaint, the exhibits that were attached to both motions,
the exhibits that were introduced at the Evidentiary Hearing, the
memoranda that had been provided by the parties both before and
following the Evidentiary Hearing and the testimony of the parties,
both in these proceedings and in the Marital Dissolution
proceedings. The Court has also considered extensive portions of
the record of the case In Re: The Marriage of Sagit Tova Gottfried
and Chaim David Gottfried, et al., Case No. 07-20997 FC 12,
including transcripts of Mrs. Gottfried's deposition testimony in
Page 1 of 15
CASE NO: 08-65074 CA 31
that matter, the transcripts of the first two days of trial, Mrs.
Gottfried's testimony at several different hearings where she
sought affirmative relief and the hearing that was conducted by
Judge Lando in August of 2008, when Mrs. Gottfried (Now Keren)
testified that she was prepared to accept a settlement which had
been achieved with her husband, Chaim David Gottfried. Based upon
the record, the Court has determined to strike the Plaintiff's
pleadings.
The Court first addresses threshold issues regarding the legal
standard governing a motion to strike sham pleadings, and
Constitutional issues raised by the Plaintiff in arguing that this
proceeding violates her right of access to the Courts, which is of
course guaranteed by the Florida Constitution. Simply stated, not
every litigant must be afforded the right to a trial by jury. As
the Florida Supreme Court observed in 1934, in what appears to be
the first discussion approving the striking of sham pleadings, "Its
exercise is not objectionable as infringing the right of trial by
jury, for the right ... to a jury trial depends upon there being a
real issue to be tried. The Court has power to determine as a
matter of judicial cognizance whether there is such an issue..."
Rhea v. Hackney, 157 So. 190 (Fla. 1934). Courts have always had
the inherent power to prevent an abuse of their processes, and may
peremptorily dispose of a cause of action that is frivolous or
wholly vexatious. Id. at 72. Where the allegations contained in
a pleading are in fact untrue and where the record reveals they are
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CASE NO: 08-65074 CA 31
of such character that they could not have been proven at trial,
the Court may exercise this power. Id. at 70.
Ultimately, this Court must determine whether Plaintiff's
complaint is demonstrably false in so many respects that it would
be inappropriate to allow Plaintiff to proceed with her complaint.
In that regard, this case may be unique, given the sheer quantity
and quality of the record evidence from the underlying divorce
proceedings, and the extraordinary amount of sworn pleadings and
testimony, which contradict in large part the essential allegations
that underlie the vast majority of the Plaintiff's claims in this
matter. The records of those proceedings utterly belie the
Plaintiff's contention that Mr. Kutner and his firm frustrated the
Plaintiff's ability to settle her case, and that he artificially
prolonged the proceedings in order to ensure a greater fee.
In fact, the record of the proceedings and findings by both
the Family Court and the Third District Court of Appeal readily
reflect that the proceedings would have been completed at some
point in February of 2008, but for Mr. Gottfried's decision to flee
to Israel, while simultaneously taking the vast majority of the
marital assets with him. Aside from the fact that the Court has
determined that the findings of the Family Court and the decision
by the Third District Court of Appeal establish the law of the
case, for the purpose of this proceeding, the record that was
presented during the evidentiary hearing also demonstrates with
equal clarity that Mr. Gottfried single-handedly frustrated his
wife's ability to resolve the Family Court proceedings, and that he
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CASE NO: 08-65074 CA 31
was intent upon ensuring that the, case would only be settled on his
terms, and his terms alone.
The Plaintiff's allegations were supported almost verbatim by .
an affidavit supplied by Ms. Keren in opposition to Defendant's
Motion to Strike the Complaint. That testimony is disputed in
material part by numerous instances of testimony in the divorce
proceedings which flatly contradict Ms. Keren's present testimony
as well as the merits of the entire claim. In many instances,
while on the witness stand during the evidentiary hearing on the
Sworn Motion to Strike, Ms. Keren was forced to concede that she
had either lied under oath - both during Court proceedings and to
the Social Service Agencies, as well as the Police-- or otherwise
concede that allegations of her complaint were not supported by the
record. No jury should be asked to resolve those contradictions,'
particularly where Ms. Karen was successful in securing affirmative
relief before the Family Court based upon her testimony in those
proceedings.
Although Plaintiff argues that Defendant's Motion to Strike is
merely a "he said/she said" swearing match, and that the Court may
not strike the Plaintiff's pleadings based on the mere
contradictory testimony of Maurice Kutner and Claudia Capriles,
this Court finds that there is sufficient record evidence from the
underlying divorce case to flatly contradict the present
contentions of Ms. Karen without any actual need to refer to the
testimony of Mr. Kutner and Ms. Capriles.
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CASE NO: 08-65074 CA 31
In other words, the Court has determined not to allow the
Plaintiff to advance theories of liability in this matter based
upon her own sworn testimony and the affidavit which she filed in
opposition to the Defendant's Motion to Strike, where those
allegations and that testimony are totally at odds with sworn
pleadings and testimony in the underlying Family Court proceedings.
This is particularly true where Ms. Keren was able to secure formal
relief against her husband in those same proceedings based upon
sworn motions and testimony, which she now attempts to refute, or
otherwise claims was the product of her "robotic repetition" of
theories that were actually advanced by Mr. Kutner, but which she
did not otherwise espouse.
The Court will not condone a cause of action that is
predicated upon this type of outright fabrication, which permeates
the very essence of the Plaintiff's claims against Mr. Kutner and
his Firm. See Blumberg v. USAA Casualty Insurance Company, 790 So.
2d 1061 (Fla. 2001). "Judicial estoppel is an equitable doctrine
that is used to prevent litigants from taking totally inconsistent
positions in separate judicial, including quasi-judicial,
proceedings." Smith v. Avatar Properties, Inc., 714 So. 2d 1103,
1107 (Fla. 5th DCA 1998). According to the Supreme Court decision
in Blumberg, the doctrine of judicial estoppel prevents a party
from "'making a mockery of justice by inconsistent pleadings,'" or
"'playing fast and loose with the Courts......' Blumberg, supra at
1066, citing American National Bank v. Federal Deposit Insurance
Corporation, 710 F.2d 1528, 1536 (11th Cir. 1983) and Russell v.
Page 5 of 15
CASE NO: 08-65074 CA 31
Rolfs, 893 F.2d 1033, 1037 (9th Cir. 1990). In Blumberg, the
Supreme Court noted that judicial estoppel may be asserted by an
individual who is not formally a party to the underlying
proceedings, citing to its prior decision in Zeidwig v. Ward, 548
So.2d 209 (Fla. 1989).
Furthermore, applicable law makes it clear to this court that
a defendant is not required to negate every single contention in a
plaintiff's complaint to justify striking a Plaintiff's pleadings;
rather, it is sufficient to demonstrate that the Plaintiff's cause
is permeated by demonstrably false misrepresentations which go to
the heart of the claim. The Court finds that the clear
discrepancies between the record of the divorce proceedings and the
allegations contained in Ms. Keren's complaint meet this standard,
as set forth in the following non-exhaustive list of examples of
contentions which are flatly contradicted by the record:
1. The Complaint is replete with allegations regardingthe purported depletion of the marital estate,which is blamed on Mr. Kutner's alleged effort toartificially prolong the divorce litigation. Infact, sworn testimony during the divorceproceedings and exhibits that were introduced intoevidence completely belie the Plaintiff'scontention that the assets were depleted because ofanything done by Mr. Kutner. In fact, the evidenceclearly reflects that Mr. Gottfried himself spentextraordinary sums of money after his wife filedfor divorce, liquidating the diamond inventorymaintained by his jewelry company, withoutreplacing those diamonds. Notwithstandingtestimony and exhibits to that effect from theunderlying divorce proceedings, the evidencenevertheless reflects that the net marital estatewas in excess of $3 million at the time that thetrial of the divorce proceedings commenced inJanuary of 2008. Similarly, while Plaintiffalleges that . Mr. Gottfried necessarily spentexorbitant sums of money to pay his attorney's
Page 6 of 15
CASE NO: 08-65074 CA 31
fees, due to Mr. Kutner's actions, the evidenceunequivocally reflected that Mr. Gottfried's feeswere paid by his father. And not withstandingmultiple days of testimony, the Plaintiff wasunable to produce any competent evidence tocontradict the suggestion that Mr. Gottfried alonewas responsible for the depletion of the maritalassets.
2. In fact, the Family Court determined that theproceedings were prolonged artificially by Mr.Gottfried's inexcusable decision to leave thecountry after two days of trial, and before theparties could complete a final day of trial inFebruary of 2008. That determination was affirmedby the Third District Court of Appeal, whichrefused to reverse Judge Lando's assessment of some$92,000 in attorney's fees against Mr. Gottfriedand in favor of his wife, due to his misconduct.The Court believes that this finding cannot bechallenged in these proceedings, simply becauseMrs. Gottfried now wishes to take a contraryposition.
3. Mrs. Gottfried repeatedly alleges that Mr. Kutnerfrustrated efforts to settle the case. Herallegations are specifically refuted by the record.Most telling are her allegations and testimony withregard to the so-called "mediation efforts" byRobert Buchwald. In her complaint in this matterand in her sworn testimony before the court, Mrs.Gottfried contends that Buchwald's efforts to actas a mediator - after her husband fled to Israel -were rebuffed by Mr. Kutner, and.that Kutner wouldnot permit a good faith effort to negotiate asettlement at that time. In fact, the record fromthe Family Court proceedings reflect that Mrs.Gottfried filed a Sworn Motion with the court afterher husband left for Israel, seeking affirmativerelief, including her husband's incarceration. Atthat time, she testified that her husband refusedto negotiate with her after making a preliminary"settlement offer" through Buchwald which did nottake into consideration the full extent of thefamily's marital estate, child support or alimony.No reasonable construction of the record of theunderlying proceedings should allow Plaintiff'sbelated attempt to characterize Mr. Buchwald'sefforts on behalf of Mr. Gottfried as a "good faithattempt at mediation." This represents just oneMore example of a gross distortion of the record,
Page 7 of 15
CASE NO: 08-65074 CA 31
which necessarily underlies all of the Plaintiff'sprincipal allegations in these proceedings.
5. Paragraphs 40, 43, 44 and 45 of Plaintiff'scomplaint allege that Kutner intentionally drafteda settlement agreement in May of 2008 that would beeasily voidable, and subsequently "set out toprevent David from complying with the agreement" sothat he could have David arrested, ensuring thatcertain diamonds would be in the United States topay his fees, although Kutner knew David was in theprocess of honoring the agreement, and that thediamonds were merely held up due to a Jewishholiday. Notwithstanding that under questioningKaren was unable to provide examples of how Kutnersupposedly prevented David from complying with theagreement, Karen herself filed a sworn motion inthe divorce action attesting that David hadexpressly advised her that he would not honor themarital settlement agreement. Thus, theimplication that David was somehow in the processof lawfully complying with the order, but washamstrung by Kutner's overzealous tactics to"prevent" his compliance, is demonstrably false. Inthat regard, the Court also feels compelled to notethat Mrs. ' Gottfried personally disavowed thesettlement with her husband while under oath beforeJudge Lando. As a result, her husband was arrestedand incarcerated. She should not now be allowed toaver this was somehow due to the deliberatemisconduct of her counsel.
6. Notwithstanding the allegations in the Complaint,and the suggestion that Ms. Keren was under thecontrol of her attorneys at all times, the recordreflects that she made the unilateral decision tosettle the marital dissolution case in May of 2008and then again in August of 2008. In fact, Ms.Keren's own testimony established that she chose toavoid her attorneys during this period because shewas afraid they would talk her out of thesettlement, and that David instructed her to avoidthem for this very reason.
7. The complaint alleges that after repeatedly tellingSagit to "roll the dice" and turn down numeroussettlement offers made by David, Kutner finallyadvised Sagit in July 2008 that she would be leftwith nothing if the case went to trial, and thatshe had better settle and finish the matter because"you never know how the judge will rule in atrial." Not only is this contention contradicted
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CASE NO: 08-65074 CA 31
by Plaintiff's most recent memorandum to the Courtwhich states, for the first time in thislitigation, that Keren settled because she wasafraid that Regions Bank was about to foreclose onthe diamonds, but it is further contradicted bytestimony at the final hearing in the divorce case.A review of those transcripts reflects (1) thatKutner was willing and able to try the last day ofthe case, and was obviously uncomfortable with theprocess which led to the settlement, and (2) thatJudge Lando, who took pains to explain to Sagitthat she was entitled to more, was inclined to rulefavorably towards Keren if she had simply continuedwith the trial and not settled independently withDavid. Judge Lando also rebuffed the efforts byRegions Bank to intervene in the case.
8. Although the complaint alleges that Kutner "pawnedoff" the case on Claudia Capriles late in thelitigation because he had greater interest in moreimportant clients, and implies that Capriles wasnot sufficiently competent to handle therepresentation, the testimony of Capriles, Kutner,Keren, the billing records of the firm, andtranscripts from various hearings proveconclusively that Capriles was heavily involved inthe litigation from the very beginning, and that itwas Capriles who accompanied Keren to the domesticviolence intake center at the very beginning of therepresentation. Keren's allegation, therefore,whether "palpably false" or not, is a grossmisrepresentation of the facts that should not betolerated by this Court.
While the preceding specific examples refute some permanent
themes in the plaintiff's complaint, the combined effect of the
falsehoods demonstrate that the entire substance of Keren's
complaint is a sham, with no basis in truth. The overarching theme
of Keren's case is that she experienced a protracted, bitter, drawn
out, and generally unpleasant divorce from her husband; this court
can agree with that portion of Plaintiff's claim. What the court
can not agree with is the Plaintiff's attempt to blame her own
knowing conduct— and the actions of her former husband — on her
Page 9 of 15
CASE NO: 08-65074 CA 31
divorce attorney, Maurice Kutner. If one was to believe the
contents of the complaint, the only obstacle between Keren and an
amicable divorce from David was Maurice Kutner; yet the record
reveals that the acrimony which was purportedly fomented by Kutner
predated his appearance as counsel in this matter by quite some
time.
This court takes judicial notice of the statements of Family
Court Judge Maxine Cohen Lando, who as the presiding judge in the
underlying divorce, described David's behavior as follows: "Based
upon the history of this case, the husband's failure to honor the
terms of recently executed Marital Settlement Agreement, the
husband's prior threats to leave the U.S. to Israel with the
parties' minor child and the Husband's willful violations of prior
orders of this Court, The Court issues this 2 nd civil writ of bodily
attachment." As was noted earlier, it has already been determined
by the Third District Court of Appeal as a matter of law in this
case that approximately $90,000 in attorneys fees, and the
attendant delays in litigation that accompany those fees, are the
sole fault of David Gottfried, and therefore simply can not be
attributed to Defendant Kutner.
A thorough review of the underlying record further reveals
that many of the contentions pled in the Plaintiff's complaint are
simply too illogical to support any inferences in her favor for
purposes of this motion. Although Plaintiff's counsel has
correctly stated that the court is to draw all inferences in favor
of the nonmoving party when Considering a dispositive motion, the
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CASE NO: 08-65074 CA 31
court is not required to draw inferences that are either
unreasonable, illogical, or that do not accord with human
experience. See VoeIker v. Combined Ins. Co. Of America, 73 So. 2d
403, 406 (Fla. 1954).
AlthoUgh not necessarily dispositive, this court must question
either the accuracy of Ms. Keren's memory or her credibility, where
she appeared to have no memory whatsoever of any event that tended
to be exculpatory of Kutner, while simultaneously protesting that
the events in question happened two to three years ago, where she
was able to recall with remarkable precision minute details of
events which tended to paint Kutner in a negative light. Similarly,
while Ms. Keren was generally unable to answer env of the questions
posed by Mr. Kutner's counsel without a protracted explanation, Or
the suggestion that she did not understand a question, she appeared
to respond remarkably well to questions posed by her own counsel
during cross-examination, which were no more or less complicated or
confusing than any of the questions that were posed by Mr. Kutner's
counsel.
The degree of direct contradiction between the record of the
divorce , case, and the allegations raised in the complaint are
sufficient to justify striking this Complaint as a sham pleading.
However, upon considering the authority submitted by Defendant on
judicial estoppel, and in part delicto, this Court also holds that
Keren is precluded from asserting positions here that are either
(1) contrary to positions she had already taken on the record in
the divorce Court, or (2)based on the contention that positions
Page 11 of 15
CASE NO: 08-65074 CA 31
asserted before the family Court in the dissolution proceedings
were based on Kutner' instruction to lie to the Court in the
divorce proceedings. See Blumberg v. USAA Casualty Insurance
Company, 790 So. 2d 1061 (Fla. 2001) (Expanding scope of judicial
estoppel doctrine while re-iterating that doctrine is designed to
prevent parties from making a mockery of justice by asserting
inconsistent positions in different lawsuits); Turner v. Anderson,
704 So.2d 748 (Fla. 4 th DCA 1998.)
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
summery disposition of frivolous cases.
The court also finds that in light of the evidence presented
at the evidentiary hearing, that the Plaintiff's case is subject to
dismissal for fraud upon the Court, for the same policy reasons
that support striking the complaint as a sham pleading. While this
court is conscious that such a remedy should be employed with
restraint, and is reserved only for the most egregious
misrepresentations, Florida Courts — including the Third District
Court of Appeal — have consistently recognized a trial Court's
ability to dismiss claims which attempt to mislead the Court
concerning material issues that go to the very heart of the claim.
Where a plaintiff perpetrates a fraud that "permeates the
proceeding," dismissal of the entire case is proper. See Austin v.
Page 12 of 15
CASE NO: 08-65074 CA 31
Liquid Distributos, Inc., 928 So. 2d 521 (Fla. 3d 2006); Cabrerizo
V. Fortune International Realty, 760 So. 2d 228 (Fla. 3d DCA 2000).
Whether a pleading is stricken because it is demonstrably
false or because it represents a fraud upon the Court, the policy
justifications, and result reached, should be the same. The
integrity of the civil litigation process depends on truthful
disclosure of facts. A system that depends upon an adversary's
ability to uncover falsehoods is doomed to failure, which is why
such conduct must be discouraged in the strongest possible way.
Cox v. Burke, 706 So. 2d 43, 47 (Fla. 5th DCA 1998). See Austin v.
Liquid Distributors, Inc., 928 So. 2d 521 (Fla. 3d DCA 2006). This
court has an obligation to deter fraudulent, frivolous, vexatious,
or palpably false claims. It is apparent that.Ms. Keren's complaint
is predicated on false and fraudulent allegations that go to the
heart of the liability and damage issues in this case. This court
will not turn a blind eye to such conduct. The only appropriate
sanction, therefore, is the striking of Plaintiff's complaint.
Defendants argue here that the claim itself is a sham, yet
also ask this Court to dismiss portions of the claim because of the
Plaintiff's inability to state a cause of action. The court does
not feel that it needs to address that issue, given its
determination that the entire complaint is permeated with
demonstrably false allegations of fact which, when stricken, will
leave the complaint devoid of any factual underpinnings whatsoever.
In that regard, the court takes specific note of the fact that
virtually every count of the Third Amended Complaint are based upon
Pane 12 of 15
•CASE NO: 08-65074 CA 31
the same core facts, which are adopted and incorporated by
reference throughout the Complaint.
Finally, this court declines any invitation to make any
rulings regarding the disposition of the charging lien filed by
Kutner in the underlying dissolution proceedings. A charging lien
is an 'equitable remedy to have costs and fees due an attorney for
service in the suit secured to him in the judgment or recovery in
that particular suit." Richman Greer Weil Brumbaught Mirabito &
Christensen, P.A. v. Chernak, 991 So. 2d 875, 878 (Fla. 4th DCA
2008)(emphasis supplied). Generally, a summary proceeding in the
"original action represents the preferred method of enforcing an
attorney's charging lien." Baker & Hostetler, LLP V. Swearingen,
998 So. 2d 1158,1161 (Fla. 5th DCA 2008). Thus, it would be
improvident for this court to assert jurisdiction over the charging
lien, where jurisdiction has already been vested in the Family
Court. See, Carman v. Guardianship of Potter, 768 So. 2d 1156, 1157
(Fla. 1st DCA 2000) (where attorney filed charging lien in one
proceeding, could not file a subsequent charging lien for the same
fees in another proceeding as original Court expressly reserved
jurisdiction over the charging lien, which remained pending). See,
e.g., Paramount Engineering Group, Inc. v. Oakland Lakes, Ltd., 685
So. 2d 11, 13 (Fla. 4th DCA 1996). For the same reason, the court
will not determine the count for rescission or the claim for
declaratory relief. Those matters should be addressed uniquely by
the Family Court at the time that it disposes of Kutner's charging
lien.
Page 14 of 15
CASE NO: 00-65074 CA 31
For all . of the foregoing reasons, this matter is dismissed
with prejudice, with the exception of Counts VI and VII. Those
counts of the complaint are dismissed without prejuace to the
Plaintiff's right to raise those issues before the Family court, if
appropriate.
The Court reserves jurisdiction to assess attorney's fees and
costs upon further motion and hearing before this Court.
DONE AND ORDERED in Chambers at Miami-Dade County, Florida on
this day of August, 2010.
HONORABLE JOHN SCHLESINGER
cc: All Counsel of Record
R:\librvEY\RV\OROROR\P -Gottfried v Rutner\RMR REV R.wPd
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