23-1747 Kaster Linch Farrar & Ball LLP etc VS Clyde & Co U S LLP etc et al

we'll call the first case uh Caster Lynch against Clyde may it please the court Lori Ross on behalf of the cast ly Law Firm this is a charging lean over approximately 120 $102,000 half of which was costs the trial court exculpated the defense from impairing a charge in Lan by negligently writing a check enabling the client and other Council to abscond with the settlement funds the only requirement to perfect a charging Lane is timely notice there's no question the defense lawyers got it they promised to protect the lean they agreed to make out the check in a very particular way now I want you to look at because they're claiming otherwise all you have to do is look at the emails exchange on November 14th 2017 it's record 775 and they're in inverse order so I'm going to go through them on that date Mrfine at 1223 p. m. says we're in we are in receipt of the ex executed release as well as the charging links there were two filed by Rubenstein law and Caster Lynch both of which are dated November 3rd once all the terms and conditions of the settlement agreement have been met and fully complied with we will issue our settlement draft which will be made payable to quote mercina srant as per personal representative the estate of henon front comma ESOP comma rubenstone Law PA and casor Lynch that's at 1223 at 142 my firm says agreed as always we will abide by the terms of the protective order that's supplemental record 449 followed by at 1:50 p.

m. from Mrasapi who has sced with sons with the funds he specifically says I'm working out with rubenstone law to satisfy the leene I'm waiting for a number from Caster firm the settlement check should be made payable to the trust account of the law office of Santiago FBO mercen srant as PR of the estate of hen sfant I will be responsible for the lean those go ahead how does the charging lean work with regards to Essen the amount of money your client would recover would it be the 102,000 or would it be like the percentage I think there was a 6040 split it was the amount that was actually paid out to it was $12,000 he would have gotten a split but he absconded with everything so it's the amount total amount of the lean and that's the that is what the case law says if you upcon if if you impair the lean you are responsible to pay those funds does that provide a windfall though because that's more than your client would have provide or received only if we had been paid that amount that it then it would have been a windfall but we were never paid the funds were absconded and and let's not forget we had four months of negotiations it's Undisputed and that's why I say there was one clear error on the front page of the order it's Undisputed that Mresapi and the defense law firm were negotiating behind our backs pushing us out for four months we had no notice of or discussions with the defense law firm all of that was admitted you can see it on the face of the records the four months and the trial court expressly found in here that the law lawyer who absconded was that was considered by the defense Council be relatively inexperienced he began with demands in the millions which are quickly rejected he continued to reach out to the defense Council each time bidding against his client's interest until the clients agreed on it some so all of that's done without our knowledge um Mrfine points to one email in the record it's sr41 that he says shows we had knowledge that's not an email from us that's Mrasapi talking to the defense law firm we're not bound by what he tells them about what's going on as to our knowledge we knew nothing about what was going on so that is a pretty big drop in value for a case um is there anywhere in the record where it has your client's uh basically um opinion as to what this claim was worth as to what as to like the amount of what this claim was worth no they no because by the time remember client can go against their lawyer's advice they are entitled to settle any time what MrLynch says if you read his deposition is he said they thought that the the the amount or value of this settlement was absolutely absurd and the number was absurd but they really couldn't do anything about it the case was settled all they can do is get their lean enforced so the real issue and there's only two issues in this case but I'll put the second issue first because the first can't possibly be disputed on this record that all of this was going on behind our back without any knowledge to us and without discussions to us the only real issue was was the lean impaired by the negligence of the defendant they say no it all has to do with how the check is written and the problem in this case which is a Flatout legal issue the problem in this case is that Mrfine made a mistake I'm not accusing him of intentional misconduct he made a mistake and and I and I think that is the core issue and you started with it um looking at the form that the check went out right there there's potentially it's potentially ambiguous it could be read two ways correct one way is you know uh escante is for the benefit of srant and the law firm another is escante in his capacity and Kaiser Lynch in their capacity yes so would you agree I mean I always try to think of the best of people I just assume the person who wrote this was trying to affect the agreement that's the person maybe ambiguity Creeps in and by the way someone who writes judicial opinions good God ambiguities creep in that's and I get that that's the whole problem what they intended to do doesn't matter it's what they did and what they did was write an ambiguous check and the problem with that is Under the UCC the the presumptions were reversed in 1992 if you look at Hyatt versus Palm Beach bank that was my case I mean I represented Palm Beach bank and at that time the UCC was changed so that the presumption that uh was against alternative payes was turned around to protect Banks and and it was declared legally ambiguous if a check could be written in more than two ways or read in the bank would not be liable if a that's correct it excavates ISU with an an ambiguous matter exactly the banks off the hook the banks hook so let's assume this writing is done in total good faith you seem to be challenging that but it's done in total good faith but a ambiguity crept in yeah who does that fall on as between the equities between them and us it falls on the defense firm and let me tell you what and in a way though if I can't interrupt who had the last chance to stop the Train the defense and I'll tell you why I mean did you did your people see the check before no that's and that's in the record and I've cited the pages to you the check was written to Mrit was sent to Mresopi by federal express they changed who the paye was on 1129 on 1114 Mrfine wrote everybody said I'm making the check out this way the way it was made out on 1114 was made as joint payment it was exactly the right way to make out the check now he says okay one of the CH one of the firms lean was paid and they told him leave me off the check the only other correction is to the name of the law firm but they had noticed twice before Mresopi kept asking them to write the check for for the benefit of to him for the benefit of the client that is a significant change when you write something for for the benefit of a client that can be cashed by the person to whom the check is made the client doesn't have to sign I'm sorry the client does not have to sign client doesn't have to sign it all it has to sign it is the original pay which is in this in this case the lawyer who absconded with the funds so they changed it but let me tell you two other things they do number one if you look at the letter the letter is sent directly to Mrisopi not copied on us we are not given a copy of the check we're not copied on the check when do we find out that the check paye the paye was changed on 1129 we find out after we get a dismissal in the mail showing and and in December my client says and start sending emails are you still protecting our lean the response comes back the response comes back your name was on the check doesn't matter they negligently wrote the check we had no notice of the change and we find out after he's already cashed the check why because they FedEx the check to him on November 29th so we don't see anything until afterwards we have have no last chance to conduct anything so how do we how do we reconcile that with Geico's holding which simply requires as one of several alternative possibilities to to comply with its Duty that the P's name appear on the check okay that is an over Brad analysis and that's Geo doesn't explain that analysis no and Geico doesn't explain the other conditions too which I will assure you do not appear anywhere else in any in any charging lean case whatsoever those conditions do not appear anywhere but let's assume for a second if you read geod to Bean exactly what it said you could put the name of the law firm in the notation side on a check and that would be sufficient that's not what the that's not what the the law is the that's the whole reason for the vast protection of charging Le so you're suggesting it implicit in the holding of Geico is that the name has to appear in such a manner as to protect the lean of course of course and that's and that's what we start with you couldn't write the check to say the plain attorney will be acting for the benefit of the other attorney's firm I'm sorry you under Geico I mean the distinguishing Geico would be you sure you got to put the name on the check but not under the capacity of someone else is has the authority to sign for them that's that's that's correct I mean it's a it was a mistake they won't own the mistake that's the whole problem it's negligence in not knowing the UCC and not knowing that this was a material change in the endorsement all right and we've let you go into your uh thank you btle time thank you let's hear from thank you very much may it please the court councel this is a very simple case as you said your honor this is an equitable claim it should be decided on principles of fairness as opposed to strict legal rights and the issue here is did we meet our duty in protecting this lean under the Geico case in which this court set forth four very clear things that someone in our position could do to protect that lean Judge Lopez in the trial court after hearing the testimony of all the witnesses including myself decided that we met one of those we believe the record is clear that we met three of those and that you can affirm on any one of them but the one he found was clear as a bell and that is we put the Caster firm on the check and that's all Geico said we had to do the record also makes can I just explore that I mean of course the um so would you read Geico is saying you need to put the uh the one law firm's name on the check but you can say that the like escamp or esape could sign for that other law firm would would you think that would satisfy Geico the holding of Geico I think it would but that's not what I'm arguing because that's not what happened in this case Okay because that would be a pretty outrageous understanding of Geico right well no I I I think I'm gonna put your name on the check but I'm going to allow her to sign for you even though she's your opposing counsel I I you haven't authorized that I mean how could that I I I don't disagree I think the language of Geico someone could argue that I don't think it's a good argument and I'm not arguing it what I'm arguing is because that's an awful mechanical interpretation I agree I agree that is not my interpretation of it my interpretation of it is as judge emis suggested that they be put on the check in a way that they have to endorse it okay and that's what I did and that was done here absolutely this check could not be issued unless the uh the Caster firm endorsed it 100% and everyone in this case knew that Caster knew it osaap knew it ciden co knew it Cooper Tyre knew it would you agree that there is a reading of the check as issued that would could be read as as canape could you know could was operating for the benefit of the Caster Lynch ter that's one that that is a one plausible reading of the check as issued in a vacuum and as standing as the bank looking at that check with no other knowledge or information yes it could be ambiguous to the bank so let's assume and but that was done in total good faith by the law firm which law firm by the law firm that wrote the check that that was that was my firm yes your firm your firm acted in good let's just 100% let's assume your firm acted in total good faith and yet in ambiguity crept in which I think you're admitting an ambiguity did creep b i I am admitting it from the perspective of the bank only okay the cashing The Entity that would cash the check yes so from the perspective of the entity that would cash the check there's an there's an ambiguity as to who can cash the check yes now now if that's the case who who Who's Who does that fall on does that fall on the Caster Lynch firm or does that fall on the firm that wrote the check it actually falls on Mrosaap for misrepresenting what he knew to be the case which was that that check was written to require the C Lynch endorsement he stole their money he was a bad guy he has now been disbarred thank goodness well first of all re he was not disbarred for anything related to this at as far as we know right correct does a record reflect why there was a change in the nature of the paye between the email and the check as written is there anything in the record to explain that difference yes and can you tell us what that is yes first the email that Miss Ross referred to that I wrote on November 14th was simply to tell everyone in the case that there were going to be four payes on that check but that's not what the email said the me email actually described the way in which the check would be written right it was what I intended to write the check as not having not promised you said as promised did you not say that in the I don't think I did say that all what I what I think I said was that the check would be made payable too and I listed the osop pay firm the estate and both Leen or I think you said shall be made payable to and then you said in quotes and you quoted certain language and because that is at that time what I intended to do to write the check to protect the leans of Caster Lynch what is the reason in the record why that is not how the check was written two things one the Rubenstein firm said our Le's been taking irrelevant to our take us off the check right the other is that Mrasape clearly and multiple times wrote to me and said that's just a DBA the proper way to make the firm make it out payable to us is the law office of Santiago asaap and we would like it for the use and benefit of mercina safron now I don't know if this is in the record or not but she lived in Haiti and that's why he wanted it that way now this is a to me at the time and everyone in my firm this is a member in good standing of the Florida bar who took an oath like we all did to be ethical honest professional and civil we had enjoyed a very nice relationship with him throughout the case the Caster Lynch firm eight months prior to the settlement stopped communicating with us nothing was done behind their back they dropped out of the case they wanted no part of it they actually told Mrmotion to withdraw though no they they told that means they're still in the case though they were still in the case but they were not responding to us we were calling we were writing and eventually skip Lynch at that firm writes to Santiago and says Santiago respond to Mrfine and MrRubin well you know I if your explanation is well esopi was working well with us he was acting in good faith he's a member of the bar he he he took the same oath we did we had no reason to disbelieve him then why did you not change a check even more when when asapi wrote to you in an email and said I will be responsible for leans so no need to put the other firms on the draft if he said that why did you leave Caster on at all belt and suspenders well if it's belt and suspenders why not do what you promised to do and in fact you reinforced it in a subsequent email when you said in response to his email to you no need to include the other firms you said unless I receive confirmation of a resolution of both leans from both the Rubenstein and C firms I will proceed as I have set forth below which is the original as promised that's right but that was before the instruction from the Rubenstein firm and before the request that it be made for the use and benefit of the estate and your honor as you pointed out MrOSAP never asked that the check be made payable for the use of benefit of the Caster firm he only asked and the record is clear that it be made for the use and benefit of the estate he never said make it out to me for the use and benefit of cter and Lynch and I'll take care of the leans which is why the belt and suspenders I said you know what we enjoy a nice relationship I trust you but I'm going to go the extra step and do the extra effort to protect the Caster Lynch you put Caster Lynch first on the paye line Caster Lynch forar and ballp and law office of asabi FBO Etc would that be an an unambiguous pay line it would certainly be less ambiguous that's for sure would it have resolved this issue probably I mean I don't know what the bank would have done I don't know what Mrasconape would have represented but probably but so your position is if there's any relief due to the appellant it is only through either the bank or esopi but not you well I think the bank's been absolved via the UCC so what case do you have that's the proposition that the presumption the reversal of presumption under the language of the UCC applies only to exculpate the bank there's certainly nothing that says otherwise and Judge Lopez made it abundantly clear that his ruling that it was ambiguous to the bank was only to apply to the bank and what case supports the proposition that it would only run to the bank I don't think I have a case one way or the other or or was able to even find one I don't even remember looking for one the issue was never raised the Caster Lynch firm always took the position it was not ambiguous and now they take the position that it is the exact opposite they filed a motion to enforce the charging lean in the trial court and specifically said the check was made payable to two payes and required our endorsement now they stand here and say no it didn't it was ambiguous so so potentially there would be judicial stopple exactly if they won right I mean judicial stopple I think catches only if you take a position and you Prevail they did Prevail they won Judge Lopez gave them a final judgment in their favor against asaap and srant for their charging lean of 100 but not against the bank no not against the bank it was it was against the only wrongdoer bad actor in this case I see what you're saying okay they won the case against him on their argument that there were two payes and that he violated the agreement and understanding that everyone in this case had by taking it to the bank and representing that he could be the sole endorser and now they take the exact opposite position and judicial estoppel does preclude them from prevailing did you argue that in your answer brief absolutely can you point us to it yes I can it is at the very end of the answer brief and if you look at the index I believe the argument is begins on page 52 that kfb is a stopped to blame BL and Cooper it's a short argument the cases are on point but it doesn't it doesn't argue the ambiguous not unambiguous nature of the paye I didn't see that in there did I miss it the ambigu you said that below their position was that the check was unambiguous and yet here on appeal they're arguing ambiguity I did not see that argument I see the asole but not as to that it seems that it's a different argument you're making in your it it's elsewhere in the brief but the point made in the brief is that the Caster Lynch firm took the position and we included in the record the motion to enforce the lean did the court make a finding that it was ambiguous not in the um not in the mo not on the motion to enforce the charging Le well then why would the US the UCC uh be invoked or or discussed if it was only involved in this case uh well the second case when they filed suit against ciden Co and Cooper Tyre they amended to add the banks that was not in the underlying sront wrongful death case they added the banks here the banks moved for summary judgment they won I have a follow-up question too about something that you mentioned a few minutes ago about how it was ambiguous as to the bank only but nobody else as a general principle is that how we analyze ambiguity party per party or on a broad General scale in in this instance it needs to be analyzed as to whether or not it was ambiguous to Mrasape or to casor and Lynch or to the Rubenstein firm or to Cooper or Clyde that's the issue not to an outside party in this case the record makes clear with all these emails that everyone under stood that my intent was to have two payes and that casor and Lynch be required to sign to protect their lean I made it there's email after email it won't take long to go through them if you've not read them but it will be clear as a bell we've read them it will be clear as a bell that my intent was to go beyond what Geico specifically says I mean the Hyatt case makes clear that using a separator like and is generally understood to mean there there will be two payes on top of all of that and I just briefly I know I'm running out used the word to excuse me if if you had used the word to between the word and and the word Caster you might be right yes in hindsight didn't I I didn't but I've probably written a thousand of these checks in my 30 year career just like this without issue ever by anyone I have never run into such criminal unforeseeable conduct as Mrrosap engaged in in this case and you know as the hakeim deos Court said if opposing Council can't rely on each other's Express representations then it will irrevocably erode the judicial system's ability to do justice I was relying on Mrosaap who said repeatedly I will protect the leans I will take care of the Caster Lynch firm we should all be entitled to rely on each other's words and at the end of the day in an equitable situation it is only fair and only reasonable that ciden Co and Cooper ty not be held responsible for the inde dependent criminal acts of another disbarred now disbarred lawyer who absconded with their money if if um if as you say this is an equitable proceeding and we're supposed to review the Equitable nature of the Court's ruling how come we Tipsy Coachman affirm this if you didn't cross appeal the issues that the court did not make a finding uh in favor of you on well first there's the record is is abundantly clear that there was a hold harmless agreement in the release that did the court make a find in consistent with that what it said was was that the hold harmless agreement didn't apply to Cen Cod and so he was wrong he made a mistake so you're suggesting that's an issue of law that we could review to NOA absolutely the the release but you did not cross appeal that determination by the court we we did not but but the record makes clear that the Clyde that Cooper TI's lawyers Cen Co were incl uded in that release and that hold harmless agreement can we talk about that because there's one issue with this release is you have more general terms like agent but then elsewhere where you're getting past the definition part it's specifically refers to attorneys as well so can you address basically how the specific terms and the general terms interact with each other for purposes of interpretation of this sure with respect to the release the definition of Cooper Tire includes ciden Co that's on page one of the release I think when Cooper Tire is first identified later when we get to the release language about the leans and the hold harmless agreement the language specifically references attorney leans and specifically references the Caster Lynch lean in this case because we all knew it was there so again we we included in the release Mrascan Nae signs Miss Miss Su Frant signs they promised to take care of the leans in the release and we've met another prong of the Geico case the first prong of the Geico case is that we have to put the plaintiff's firm on notice of the settlement in this instance they knew about the settlement already they reached out to us in fact they filed their notice of charging lean the same day but before the settlement was commenced which goes to show that they clearly knew the settlement was happening they file their charging lean at noon the settlement doesn't happen till 5 and 7 P.