A Hollywood real estate company seeking $10 million in damages from Greenberg Traurig for alleged malicious prosecution asked the Third District Court of Appeal on Monday to reverse a Miami-Dade circuit judge's dismissal of its claim.
Recognizing the tide of recent case law is not on its side, the attorney for American Federated Title Corp. also asked the court to consider certifying a question to the Florida Supreme Court in the hope of carving out an exception.
American Federated claims Moshe Lehrfield, a Greenberg attorney in Miami, acted in concert with a client, GFI Acquisitions and its related entities, to deliberately delay the scheduled closing on the sale of four apartment complexes in 2008. The closing never occurred.
GFI sued American Federated for fraud, claiming mortgage payoff restrictions were not disclosed and sought to recover its $2.6 million deposit.
The lawsuit started in Miami-Dade Circuit Court, but GFI had the litigation moved to its bankruptcy case in New York.
American Federated tried to prove it made all the proper disclosures during seven months of negotiations.
American Federated sought GFI's email correspondence through discovery. GFI's New York attorneys at Goldberg Weprin Finkel Goldstein insisted there was none until a GFI employee deposition revealed the company was deleting email. The bankruptcy judge threatened to dismiss the case. Suddenly, 10,000 emails were produced, and they ultimately proved American Federated was in the right. The bankruptcy judge sanctioned GFI and its New York attorneys.
The bankruptcy judge let American Federated keep the deposit and entered judgment in its favor for $7.5 million. But the GFI companies were without assets, and American Federated couldn't collect.
With the bankruptcy adjudicated, American Federated filed a lawsuit in 2010 against Greenberg.
Miami-Dade Circuit Judge Marc Schumacher decided in 2011 that American Federated had no case because the bankruptcy court did not sanction Greenberg.
The bankruptcy judge determined the law firm wasn't subject to any discovery sanctions "because it did not intentionally withhold or destroy evidence," Schumacher said in his order. "In addition, the court found there was not a failure on the part of (Greenberg) to obey any orders."
American Federated's attorney, Frank Zemel of Arnstein & Lehr in Fort Lauderdale, said in the appellate briefs that it would not be accurate to say Greenberg prevailed on the sanctions because American Federated did not seek sanctions against Greenberg and the bankruptcy court didn't make the determination Schumacher said it did.
During oral arguments, Fourth District Judge Ivan Fernandez asked Zemel why sanctions were not sought.
"I can't go to bankruptcy court and say, 'Sanction a law firm who is no longer in the case,' " Zemel said.
Wolfe at the door
For Zemel, argument was conducted under a dark cloud. He came to the podium aware that precedent was against him and thanked the court for scheduling his case first because he said, "I hate to be late for my own execution."
He then said he would not re-argue Wolfe v. Foreman.
"That might be your only hope," presiding Judge Leslie Rothenberg answered. "It's not yet final."
Schumacher's other reason for dismissing the case was that Greenberg's actions were part of a judicial proceeding, and Greenberg enjoyed immunity under the litigation privilege rule if there was any wrongdoing.
On July 17, while Zemel's case was pending, the Third District issued Wolfe. In that case, West Palm Beach attorney Harold E. Wolfe Jr. sued Miami attorney Jeffrey T. Foreman and others for abuse of process and malicious prosecution, the same causes of action Zemel is using.
The Third District ruled both are barred by the litigation privilege. Rothenberg told Zemel the court struggled with its decision because no other case law applied to malicious prosecution.
Zemel said the court's result was right for Wolfe. But that case was a dispute over attorney fees. He argued there should be a distinction between that and a case where one party maliciously sued another and froze properties once valued at $41.5 million. With the passage of time, American Federated maintained the complexes were in such disrepair that there were thousands of code violations and it took a fortune to fix them.
The Wolfe decision did not pose a question for the Supreme Court, and Zemel argued the high court has a tendency to make overbroad rules and allow exceptions to over time.
"You're asking us to certify it so the Florida Supreme Court has a chance to rethink it?" Rothenberg asked.
"Exactly," Zemel said.
Rothenberg expressed reluctance, noting it has tried that on other issues only to be told by the court that it meant what it said.
Greenberg attorney Lauri Waldman Ross of Ross & Girten in Miami noted the bankruptcy judge said GFI knew about the emails, but there was no evidence Greenberg knew.
On the litigation privilege issue, she said the rule has changed very little in 33 years.
The only exception was in a recent case that dealt with ex parte interviews outside of judicial proceedings, Ross said.
On rebuttal, Zemel asked again for certification.
"Don't let it end here," he said.