WAGNER & HUNT, P.A. Commits Misconduct ByFiling Frivolous Lawsuit

Rule 4-3.1 generally prohibits an attorney from bringing a frivolous proceeding.

Rules Regulating The Florida Bar, 4-3.1
“A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law. ” Rules Regulating The Florida Bar, 4-3.1

The filing of an action or defense or similar action taken for a client is not frivolous merely because the facts have not first been fully substantiated or because the lawyer expects to develop vital evidence only by discovery. What is required of lawyers, however, is that they inform themselves about the facts of their clients’ cases and the applicable law and determine that they can make good faith arguments in support of their clients’ positions. Such action is not frivolous even though the lawyer believes that the client’s position ultimately will not prevail. The action is frivolous, however, if the lawyer is unable either to make a good faith argument on the merits of the action taken or to support the action taken by a good faith argument for an extension, modification, or reversal of existing law.”

In Florida Bar v. Klein, 774 So.2d 685 (Fla. 12/07/2000), the attorney was disciplined for knowingly failing a motion for attorney’s fees when the time to do so had clearly expired. Klein filed a motion on behalf of Westwood HOA seeking attorneys’ fees in the Lewis and Martin federal litigation more than one year after the final judgment had been entered against the Westwood HOA in that proceeding…Klein disobeyed the rules of procedure for the United States District Court, Southern District, which require that a motion for attorneys’ fees is to be “served within 30 days of entry of Final Judgment or other dispositive order.” S.D. Fla. L. R. 7.3.

In the Florida Bar vs. Donald Alan Tobkin, 2006 Fla. LEXIS 2543,*;944 So. 2d 219; (Fla. 2006) the attorney, Tobkin, was suspended, in part, for violation of Rule 4-3.1.   In Tobkin, the court cited two other case where it suspended an attorney for filing frivoloust actions.   See Florida Bar v. Richardson, 591 So. 2d 908 (Fla. 1991) ; Fla. Bar v. Kelly, 813 So. 2d 85 (Fla. 2002).

Florida Law on the Statute of Limitations

95.11 Limitations other than for the recovery of real property.–Actions other than for recovery of real property shall be commenced as follows:

(1) WITHIN TWENTY YEARS.–An action on a judgment or decree of a court of record in this state.

(2) WITHIN FIVE YEARS.–

(a) An action on a judgment or decree of any court, not of record, of this state or any court of the United States, any other state or territory in the United States, or a foreign country.

(b) A legal or equitable action on a contract, obligation, or liability founded on a written instrument, except for an action to enforce a claim against a payment bond, which shall be governed by the applicable provisions of ss. 255.05(10) and 713.23(1)(e). 95.11  Limitations other than for the recovery of real property.–Actions other than for recovery of real property shall be commenced as follows:

(2)  WITHIN FIVE YEARS.–

(b)  A legal or equitable action on a contract, obligation, or liability founded on a written instrument, except for an action to enforce a claim against a payment bond, which shall be governed by the applicable provisions of ss. 255.05(10) and 713.23(1)(e).

The Lawsuit is Frivolous

The Lawsuit is clearly frivolous because statute of limitations has run. Consider the following:

1. The instant action commenced on May 5, 2008. See Complaint.
2. The clock on the statute of limitations began on January 8, 2002 with the alleged sale of the vehicle in question, the last remaining act on the alleged breach of contract. Plaintiff has alleged to have suffered a deficiency between the amount owed and the actual sale price of the vehicle in question.
3. This motion is brought on the grounds that the cause of action alleged in the Plaintiff’s Complaint is barred by the Statute of Limitations as found in Fla. Stat. §95.11.
4. The Complaint and its attachments allege that the cause of action accrued on the 8^th day of January, 2008. The cause of action alleged is breach of contract and a claim for deficiency judgment.
5. Pursuant to Fla. Stat. §95.11, an action for breach of contract and a claim for a deficiency judgment must be brought within 5 years. Or stated alternatively, pursuant to Fla. Stat. §95.11 , an action for an action for breach of contract and a deficiency judgment is barred if it is not brought within 5years.
6. Thus, on the face of the Complaint the Plaintiff’s and the attachments thereto, a cause of action for a breach of contract and a deficiency judgment claim is affirmatively barred by the applicable Statute of Limitations.
7. Plaintiff’s original complaint failed to include a copy of the contract that was alleged in the complaint. On August 1, 2008, this court held a hearing on Defendant’s Motion to Dismiss and gave the Plaintiff 30 days to file a legible of copy of the contract to be attached to the Complaint as required under Fla.R.Civ.P. 1.130(a).

In an apparent attempt to comply with this Court’s order, on or about August 1, 2008, Plaintiff certified that a “Enlarged copy of contract” and “Documents proving Plaintiff’s Damages” was mailed to the Defendant. See Notice of Filing, dated August 1, 2008. In the “Documents proving Plaintiff’s Damages”, the Plaintiff included a letter purported to be from General Motors Acceptance Corporation dated January 11, 2002. See Attachment A. This letter expressly states that the vehicle in question was sold on January 08, 2002. Additionally, a “Repossession Chargeoff Worksheet” was included in the “Documents proving Plaintiff’s Damages” and is attached hereto as “Attachment B”. This document, dated January 11, 2002, expressly asserts that the automobile in question was sold on January 08, 2002.

The Frivolous Lawsuit

COMPLAINT

COMES NOW the Plaintiff sues the Defendant(s) and states the following:
1. Damages in this action exceed $5,000.00 but not $15,000.00
2. Plaintiff, CAVALRY PORTFOLIO SERVICES, LLC AS ASSIGNEE OF CAVALRY
SPV I, LLC AS ASSIGNEE OF GMAC, is and at all times relevant to this action a corporation authorized to do and doing business in the State of Florida.
3. Defendant(s), HERMAN A FELLIN, A/K/A HERMAN ARCHIE FELLIN„ at all times
material hereto, resided in the State of Florida, in HIGHLANDS County.
4. Defendant(s), HERMAN A FELLIN, A/K/A HERMAN ARCHIE FELLIN„ executed a
Retail Installment Contract and Security Agreement, a copy of which is attached hereto as Plaintiffs Exhibit “A”, the terms and conditions of which are incorporated therein by reference.
5. Plaintiff is currently the owner and holder of the Retail Installment Contract and Security
Agreement attached as Exhibit “A”.
6. Defendant(s), HERMAN A FELLIN, A/K/A HERMAN ARCHIE FELLIN„ is/are in
default due to non-payment under the Retail Installment Contract and Security Agreement, and pursuant to the Contract, Security Agreement, and Florida Law, the Plaintiff took possession of the subject vehicle described in the Retail Installment Contract and Security Agreement.
7. That Plaintiff has incurred certain expenses in retaking, holding, preparing for sale, and
selling the subject vehicle.
8. Upon the sale of the subject vehicle and the application of the proceeds there from, there
remains a balance due and owing by Defendant(s) in the sum of $11,802.46, together with interest, which Plaintiff has demanded.
9. That Plaintiff has performed all conditions precedent to its right to recovery.
10. The agreement between the parties as set forth in Exhibit “A”, attached hereto provides that
the Defendant(s) shall be responsible for the payment of all court costs and attorneys fees associated with the enforcement of the terms and conditions of said agreement.
11. In the event that there is a Default entered by the Clerk of Court in this case against the
Defendant(s), Plaintiff has requested a reasonable attorney’s fee in the amount of $500.00.

WHEREFORE, Plaintiff if prays this Honorable Court will enter
for the sum of $11,802.46, judgment in favor of the Plaintiff
plus costs, pre-judgment interest, attorneys fees, and any other relief this court may deem just and appropriate.

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