Without explanation, a state appellate court Wednesday upheld the dismissal of a lawsuit filed by a Hollywood real estate company seeking $10 million in damages from Greenberg Traurig for alleged malicious prosecution.
The unsigned opinion from the Third District Court of Appeal in Miami simply stated that it upheld Miami-Dade Circuit Judge Marc Schumacher’s decision in 2011 to dismiss the lawsuit filed by American Federated Title Corp.
“The lawsuit was meritless. Greenberg well represented its client, and it should never have been sued,” said attorney Paul Schwiep, a partner at Coffey Burlington in Miami who represented Greenberg.
American Federated claimed Moshe Lehrfield, a Greenberg real estate partner in Miami, acted in concert with a client, GFI Acquisitions and its related entities, to deliberately delay the scheduled closing of four apartment complexes in 2008.
GFI sued American Federated for fraud, claiming mortgage payoff restrictions were not disclosed, and sought to recover its $2.6 million deposit.
GFI, represented by Greenberg, sued American Federated in Miami-Dade Circuit Court, then had the litigation moved to its bankruptcy case in New York.
About 10,000 emails were produced by GFI after a former employee testified in a deposition that the company was destroying evidence, and U.S. Bankruptcy Judge Arthur J. Gonzalez threatened to dismiss the case.
Gonzalez sanctioned GFI and its New York attorneys at Goldberg Weprin Finkel Goldstein for discovery violations. The judge allowed American Federated to keep the deposit and entered judgment in its favor for $7.5 million.
But American Federated couldn’t collect and filed the lawsuit in 2010 against Greenberg.
Schumacher decided in 2011 that American Federated had no case because the bankruptcy court did not sanction Greenberg, finding the law firm did not disobey any orders. He also ruled Greenberg’s actions were part of a judicial proceeding, and thus the law firm enjoyed immunity under the litigation privilege if there was any wrongdoing.
American Federated attorney Frank Zemel of Arnstein & Lehr in Fort Lauderdale argued Greenberg’s liability or conduct was never raised before the bankruptcy judge and thus no court has made a determination.
He argued the appellate panel should certify a question to the Florida Supreme Court asking whether a defendant like Greenberg Traurig enjoyed immunity in cases of malicious prosecution.
The Third District decision was delivered a little more than three weeks after arguments consisted of two case citations.
Zemel said he will ask the appeals court to allow him to seek clarification directly from the Florida Supreme Court.
“The district court is the first court ever anywhere to apply the ‘litigation immunity’ doctrine to bar a claim for malicious prosecution,” he said. “The district court believed that its hands were tied by overly broad language in an unrelated Florida Supreme Court opinion.”