St. Mary’s School of Medicine in the Cook Islands, South Pacific. Courtesy photo

A North Miami Beach lawyer is saying he misspoke and settled a long-running case without his client’s permission.

David Javits of Javits & Associates represented St. Mary’s School of Medicine, fending off a lawsuit by a former student upset over never getting a degree. A footnote in the appellate ruling notes that St. Mary’s, which operates in St. Lucia and the Cook Islands in the South Pacific, shuttered in 2009 and never reopened.

Judge Richard J. Suarez. Photo: J. Albert Diaz/ALM

“This, in itself, raises a multitude of questions, none of which were addressed by either party,” Judge Richard J. Suarez wrote in an Aug. 1 decision with Chief Judge Leslie B. Rothenberg and Judge Edwin A. Scales III.

What is addressed at length: whether the school’s attorney had its “clear and unequivocal authorization” when he entered a $12,650 settlement agreement on its behalf with former student-turned-plaintiff Anthony Zabaleta.

Zabaleta had sued St. Mary’s in 2004 for not issuing his degree because the school claimed he had not completed the curriculum and still owed a portion of his tuition. Throughout the case, Zabaleta had proposed various offers in exchange for the diploma through his lawyers Daniel E. Zumpano and Antonio C. Castro of Zumpano Castro in Miami.

The dispute had  been raging for about 12 years when Javits brokered a settlement during a teleconference on Aug. 30, 2016.

However, this month, the Third District Court of Appeal refused to enforce the agreement.

“Both attorneys testified, and each had different testimony and interpretations as to what occurred,” the opinion said.

“There was a misunderstanding,” Javits said.


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At trial, Miami-Dade Circuit Judge Rodney Smith found Javits acted with his client’s consent and entered an order to enforce the settlement.

But the appellate court disagreed.

“Because we find there is not competent, substantial evidence in the record to support the required finding that there was a clear and unequivocal grant of authority given to Javits … we reverse and remand for further proceedings,” the panel ruled.

In the August 2016 email, Zumpano had proposed his client’s final offer and informed Javits of a hearing the next day.

Javits suggested this is where the misunderstanding occurred.

“I sent him an email saying that we would continue the hearing,” he said. “I meant to say ‘pending further discussions,’ but I said ‘pending settlement.’ ”

Michael D. Stewart, of the Law Office Michael D. Stewart in Miami. Courtesy photo

According to St. Mary’s current lawyer Michael D. Stewart, of the Law Offices of Michael D. Stewart, Zabaleta “jumped” on that email, claiming that “pending settlement” implied a settlement was underway.

“Zabaleta tried to say we have a settlement agreement when, in fact, as per the other emails, the attorney for St. Mary’s had to consult with the client to get the full, unequivocal authority,” Stewart said.

The appellate panel sided with Javits and Stewart, who claimed that email wasn’t enough to solidfy a deal.

Stewart was not surprised by the decision.

“The facts, I thought, were so clear. There were a series of emails, and in each one attorney Javits said, ‘I have to consult with my client.” Then the final email he agreed to continue a hearing pending settlement. That showed that there was no settlement,” Stewart said.

Javits agreed.

“I had to get their approval,” he said. “I didn’t have the authority to do what (Zabaleta) wanted. He wanted a diploma backdated 10 years because the school doesn’t even exist anymore.”

St. Mary’s claims Zabaleta left after just one semester, then went on to complete residency requirements and credits from a few different schools in South America and Puerto Rico.

According to Javits, Zabaleta returned to St. Mary’s years later but was expelled soon after.

“He comes back years later and he wants a diploma, but he never finished the requirements at the school. Besides not paying, he also did not complete the school work,” Javits said.

“St. Mary’s were having a hard time confirming that (Zabaleta) completed all the requirements that he said he did,” Stewart said.

The court has also previously questioned the jurisdiction of the suit, noting that St. Mary’s School is in the South Pacific, not the U.S.

According to court documents, Zabaleta claimed the venue was appropriate as St. Mary’s “business agent” lives in Miami.

Zabaleta’s lawyers, Zumpano and Castro, did not respond to requests for comment before deadline.

 

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