Boies Schiller's David Boies
Photo: Fiona McDougall
A Palm Beach Circuit judge has handed a major victory to West Palm Beach, Fla., gardener Scott Lewis in his 14-year case against a rival gardener with ties to famed litigator David Boies.
In a scathing order, Palm Beach Circuit Judge David French accused rival gardener Botanica Landscaping of manufacturing and manipulating evidence by amending and hiding tax returns, altering wire transfer documents and backdating a critical agreement.
Lewis followed up with a request for more than $1.2 million in fees and costs.
The prolonged dispute -- called the longest-running case in Palm Beach County -- has ensnared Boies of Boies Schiller & Flexner in unwanted controversy. He was temporarily disqualified from the case and was the subject of Florida Bar complaints.
The dispute started after a company called Nical bought Lewis' lawn care business, which appealed to high-end clients in tony Palm Beach, for $800,000 in 1996. Under a noncompete agreement, Lewis was allowed to operate a gardening business. But the two sides had a falling out over one party allegedly bad-mouthing another to a client, and Nical executive Amy Habie sued Lewis in 1996. Habie was Boies Schiller's chief financial officer. Boies' family trust and key employees owned 100 percent of Nical.
The litigation has roiled ever since, with numerous appeals and the involvement of at least five Palm Beach County judges.
A Dec. 23 ruling by Circuit Judge David French addresses the latest dispute in which Lewis accused Nical of engaging in an elaborate ruse to avoid the noncompete agreement. Lewis and his attorney, Jack Scarola of West Palm Beach-based Searcy Denney Scarola Barnhart & Shipley, filed motions accusing Nical of pretending to sell itself to Botanica to void the noncompete agreements.
Lewis recently moved to strike Botanica's pleadings, enter a default judgment in his favor and disqualify plaintiff counsel, Akerman Senterfitt shareholder Robert Chaskes of Miami.
In a harshly worded order, French sided with Lewis and imposed sanctions against Botanica, saying the company "has engaged in willful and deliberate misconduct." He also derided Botanica for "abuse of the system."
French stated Botanica withheld, manufactured and altered evidence; provided false testimony; defied a discovery order; knowingly made false statements to the court; and pursued fraudulent claims.
He called Botanica's 2006 tax return a smoking gun that had been "willfully withheld for almost three years." The order said the recently revealed return shows a company called Westco is Botanica's half owner and the controlling shareholder. Westco is owned by William Duker, a business associate and friend of Boies.
"The active concealment for nearly two years of the fact that Westco is listed as the 50 percent partner by Botanica in its 2006 tax return is a substantial and material violation of Botanica's discovery obligations," stated the order.
The significance of the return is that it contradicts Botanica's claim that its purchase of Nical was an "arm's length transaction." Botanica used that argument to seek to nullify the noncompete agreement, saying it was only effective for the former company.
The disclosed documents show that an essential component of Botanica's purchase of Nical was a $750,000 gift from a longtime friend of both the Nical buyers and Boies, whose family trust and key employees owned 100 percent of Nical. The friend, William Duker, had ties to Nical and Botanica parties that were concealed in businesses, according to the order.
Duker worked with Boies and Chaskes on a banking case that resulted in Duker's disbarment, French's order said. Chaskes, who also represented Westco and Duker, withdrew from the case. There was no response from Chaskes to a request for comment by deadline.
It was Duker's involvement that "provides the key evidence linking the seller and buyer in what was nothing more than a sham transaction designed to circumvent the negotiated settlement agreement," French wrote.
Tax returns were doctored to conceal this evidence, amounting to a "calculating abuse of the discovery process," he said.
Also withheld by Botanica was a page from its bank statement showing a $250,000 wire transfer "loan/gift" dated Nov. 29, 2006, from Westco covering the initial payment for Nical as well as a subsequent $500,000 "loan/gift" dated Dec. 5, 2006, French wrote. The documents were first requested in 2007.
L. Louis Mrachek of Page Mrachek Fitzgerald & Rose in West Palm Beach, Botanica's current chief counsel, did not return calls for comment by deadline.
In court, Botanica blamed a former lawyer for the misdeeds. However, French concluded the new lawyer made "no effort to correct these wrongs."
"There is no question that Nical and Botanica have conspired together in this abuse," he stated.
In addition to striking all pleadings by Botanica claiming it should be exempt from the noncompete clause, French awarded Lewis all fees and costs as well as sanctions to be determined later to compensate Lewis for suffering through another 2 1/2 years of litigation.
Lewis, who acted pro se for much of the case, is still running a West Palm Beach-based gardening business with his wife, Carol.
Scarola expects Botanica to appeal.
"Their pattern has been to appeal every adverse ruling and impose every possible burden on Scott and Carol Lewis and inflict as much pain as possible," Scarola said. He said he was pleased with the order, calling it "extremely significant."
"Striking pleadings is an unusual sanction and a response to extraordinary misconduct," Scarola said.
Other aspects of the litigation and spin-off litigation are still winding through the courts.
