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After failing to convince a Miami-Dade Circuit Court judge to hear his case against his former attorneys, former Homestead, Fla., nurseryman Dale Smith is turning to the federal courts for relief. Smith, who now lives near the Gulf of Mexico, in Crystal River, Fla., with his wife, Carolyn, filed a complaint in U.S. District Court in Miami on Thursday against lawyers Phillip Sheehe and Louis Vendittelli. The 10-page complaint alleges the lawyers concealed from him the details of a settlement agreement they reached with chemical giant DuPont Co. in a claim that alleged the company sold the Smiths and other growers a fungicide that wiped out their crops. The new suit alleges mail fraud, wire fraud and conspiracy to commit mail and wire fraud and that the defendants “devised, or intended to devise and actively participated in a scheme to defraud” the Smiths. At the crux of the dispute is a settlement offer that the Smiths, former owners of Native Hammock Nursery in Homestead, rejected from DuPont in 1994. The Smiths, along with four other South Florida growers, sued DuPont claiming its chemical, Benlate, caused extensive crop damage. On the night before a Miami-Dade Circuit Court jury was expected to return a verdict, all of the name plaintiffs, except the Smiths, agreed to accept DuPont’s offer. Documents obtained by the Miami Daily Business Review show the company offered $34 million to be split among 59 growers who were clients of Sheehe and Vendittelli. In a letter dated May 10, 1994, Jerry Ashby, DuPont’s lawyer, also agreed to separately offer the Smiths $1 million to resolve their claim. The letter said that if the offer was rejected, the entire $34 million would remain on the table. The Smiths took their chances with the jury, which awarded them nothing. The Smiths now claim their lawyers told them that if they didn’t accept the offer it would be taken off the table, when in reality the $1 million would actually be pocketed by the lawyers. “If we had taken the offer, Sheehe and Vendittelli would have gotten $33 million. But when we didn’t, they got $34 million. They had the advantage of knowing we would not take the offer,” Dale Smith said in an interview. The Smiths contend that because they weren’t given all of the facts, they could not make an intelligent decision about whether to settle or take their chances with the jury. “They were operating in a vacuum created by Sheehe and Vendittelli for their own personal benefit,” says Omar Arcia, of counsel to Wilson Suarez & Lopez, who filed the suit in federal court on behalf of the Smiths. Though he had not yet seen Smith’s new complaint, Gerald Wald, a partner at Murai Wald Biondo & Moreno in Miami, called it “shameful.” “Unfortunately, neither Mr. Smith nor his attorney know what the facts are. It’s irresponsible to make such allegations that bear no semblance to the truth. These allegations are made up out of whole cloth,” Wald said. The Smiths’ allegations are the latest twist in a decade of litigation over Benlate, which was alleged to have caused widespread damage to crops and ornamental trees before DuPont pulled it from the market in 1991. While DuPont denies its product caused any damage, it has paid more than $1 billion in settlements and damages awarded by juries. The Smiths first took their complaint against the lawyers to Miami-Dade Circuit Judge Thomas “Tam” Wilson. They alleged fraud and breach of fiduciary duty. In May, Wilson stayed the suit saying that it could not go forward until a decision was made on the fate of the Smiths’ suit against DuPont, which at the time was on appeal before the Florida Supreme Court. Since his decision, the state high court declined to hear the case. The 3rd District Court of Appeal sent the case back to Judge Amy Steele Donner where the Smiths will get a second chance against DuPont. No court date has been set. At the same time, Sheehe and Vendittelli have filed a charging lien against the Smiths related to their representation in 1994. They are seeking 12.5 percent of attorney’s fees and costs should the Smiths’ new lawyer, Steven Stark, a partner at Fowler White in Miami, win against DuPont. The Smiths have also filed a complaint against Sheehe and Vendittelli with the Florida Bar and filed a claim against them with the Bar’s Client Security Fund, which was set up to provide monetary relief to those who have suffered a reimbursable loss as a result of misappropriation. In a letter to the Client Security Fund, the Smiths also allege that their lawyers accepted a “secret side bar deal” with DuPont for a direct payment of $898,160 in an effort to sell him “down the river.” Wald calls the allegations against Sheehe and Vendittelli “absolutely, positively false.” He points to the fact that his clients are currently representing plaintiffs in another case against DuPont. The $898,160, Wald says, was for fees and costs and were applied to the payment of out-of-pocket costs. “You had accountants, experts, deposition experts. Every penny of that is accounted for,” Wald said. “I am confident that when the Bar reviews everything and when the courts review everything, they will see all of the facts. These lawyers have always acted ethically and responsibly.”

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