The Third District Court of Appeal has upheld sanctions in a case that saw civil defense attorney Gregg M. Horowitz make a 372-mile drive from his office in Sarasota to a Key West courthouse three times — each time in vain because both the bank plaintiff and its counsel were no-shows.
According to the court opinion, Horowitz arrived for trial in April, July and December 2014, but opposing counsel wasn’t there.
“It was very frustrating,” Horowitz said. “You drive down there for more than six hours in the middle of summer, then you walk back to your hotel room, drenched, and call your client to tell them what happened. And he was like, ‘What? How could they not show up?’ ”
According to Horowitz, two law firms were handling the case — Akerman’s South Florida offices and Florida Foreclosure Attorneys in Boca Raton, which has since closed.
Akerman appears to have missed the first trial, though it’s not clear from court documents who was handling the case that time. Akerman withdrew from the case in late August, according to Horowitz, leaving co-counsel Florida Foreclosure Attorneys to take over.
The way Horowitz tells it, there may have been confusion as to which firm was handling the trial, as both firms remained on the service list for some time after they’d gone.
“ That was probably their issue, that they didn’t know who was on first base and who was covering what,” Horowitz said.
Akerman attorney Jeffrey A. Trinz was listed as co-counsel on an August service list, while William Noriega filed in August for Florida Foreclosure Attorneys, according to a Third DCA appendix filing. Noriega is still listed in Monroe County electronic case files. Neither responded to requests for comment before deadline.
According to then-Akerman foreclosure lawyer Victor Petrescu, it’s likely that Akerman would have stepped away from the case early on, giving it to the foreclosure firm. Petrescu left the firm a month before the first trial and doesn’t recall being involved in the case.
Read the full court opinion:
The incident was a first for Horowitz, who has practiced since 1989.
“It was very aggravating, and my clients were very upset,” he said. “They felt that they were being abused.”
Horowitz represented homeowners Peter and Sara Obermeyer in the foreclosure case brought by Bank of New York Mellon in 2008. The case was ultimately dismissed in December 2014 without prejudice, so the defense moved for sanctions, including travel costs. Bank of New York appealed after Monroe Circuit Judge Bonnie J. Helms denied its motion to vacate the sanctions.
Bank of New York’s appellate lawyer, Shawn Taylor of the DeLuca Law Group in Fort Lauderdale, came in after the dismissal to litigate attorney fees, but did not respond to requests for comment.
According to Taylor’s initial brief filed in July 2018, he missed a hearing on the motion for sanctions due to a legal assistant’s scheduling mistake.
“By then that was par for the course, not showing up,” Horowitz said.
Horowitz said he was surprised the court wrote an opinion rather than simply approving the sanctions.
“I appreciate it,” Horowitz said. “They probably wrote the opinion to tell attorneys not to miss trial, that there are consequences.”