3d DCA Watch -- The One Where Judge Cope's Law Clerk Outlawyers The Lawyers. Oh Yeah, and Kenny Nachwalter Gets Disqualified (Yawn).

Ok kiddies, it's that time again so let's jump right in and see what our coffee-swilling, Technicolor-robed brethren down south have been up to in this topsy-turvy, action-packed edition of 3d DCA Watch:

Skylake v. NMB Plaza:

Whoah -- holy great-research-by-Judge-Cope's-clerk, Batman!

This case has to do with a ten-year lease signed by landlord NMB Plaza, an LLC, which was repudiated for whatever reason by the landlord. The tenant sued, and the landlord's defense was that the lease was not valid because it did not have the two signatures required under Fl. Stat. 689.01.

The tenant, represented by Scott Orth, countered that there is an exception for corporations. Too bad so sad, Judge Cope noted (I'm paraphrasing), the landlord is an LLC, not a corporation, so that exception does not apply.

It's right there that Judge Cope's clerk heroically swings into action:

Our independent research discloses the existence of another exception. Chapter 608 contains its own provisions regarding the disposition of limited liability company property, including real estate. “Instruments and documents providing for the acquisition, mortgage, or disposition of property of the limited liability company shall be valid and binding upon the limited liability company, if they are executed in accordance with this chapter [608].” § 608.425(3), Fla. Stat. (2003). A lease qualifies as a “disposition” of property of the limited liability company.

Section 608.4235, Florida Statutes (2003), addresses the authority of limited liability company members, managing members, and managers. Subsection (3) provides:
(3) Unless the articles of organization or operating agreement limit the authority of a member, any member of a member-managed company or manager of a manager-managed company may sign and deliver any instrument transferring or affecting the limited liability company’s interest in real property. The instrument is conclusive in favor of a person who gives value without knowledge of the lack of the authority of the person signing and delivering the instrument.
(Emphasis added).

The lease bears the signature of Eli Hadad on behalf of NMB Plaza LLC as lessor. The lessor’s answer admits that the lease was signed and raises no claim that the lessor’s signature was unauthorized.

As already stated, subsection 608.425(3) provides that the disposition of property of a limited liability company is “valid and binding upon the limited liability company, if . . . executed in accordance with this chapter [608].” Thus it is only necessary that a conveyance by a limited liability company (in this case a lease) comply with chapter 608. It is not necessary that the document contain the signatures of witnesses required under section 689.01. For the stated reasons, we conclude that the lease should not have been held to violate section 689.01.2.

Now that raises some interesting questions. First, why not make that argument? I admit it's not immediately obvious to check the conveyance parameters of a member of an LLC in the LLC statutory section, but on the other hand I guess it turned out to be pretty useful for someone to have done so. Maybe there's another reason, who knows?

Also, isn't there a possible contradiction between the two statutes, where one is more general and one more specific?

Finally, did the landlord, represented by Bennett Feldman, have an obligation to raise that section if he knew about it, either at the trial or appellate level? Or did he not know?

Let's see what else.....

Bauknight v. Monroe County:

This is a takings case involving some property on Big Pine Key that is notable mostly because the appellant was represented by the Richard Scaife-funded Pacific Legal Foundation.

Guess which Judge (not sitting on this case) used to be counsel to that group? Oh well, the appellant lost here anyway.

Let's see, anything else...

Default Proof v. Niro:

Oy -- Arbitration, choice of law, FAA, Leslie Lott. If you find any of the foregoing interesting, you can read the darn thing yourself.

The rest of these opinions are pretty dry, let me see if there's anything else....

Atlas Air v. Greenberg Traurig:

BINGO! From what I can tell, in a suit by Atlas Air against GT, some confidential attorney-client documents were inadvertently delivered to GT's counsel, Kenny Nachwalter.

Now of course we all know what to do in that situation, being good professionals and knowing that we are all colleagues in the same Bar. Kiddies, what do you think happened?

According to the opinion, Atlas moved to disqualify Kenny Nachwalter. Although the trial court disqualified the Kenny partner who first received the docs, it did not disqualify the entire firm.

Wrong, in a PCA by a panel that included polite and always gracious SFL fave Judge Schwartz. In fact, the petition was granted and Kenny Nachwalter disqualified because:

This determination is based upon our finding that the Kenny Nachwalter firm fell far short of satisfying the requirements of the controlling case of Abamar Housing & Dev., Inc. v. Lisa Daly Lady Decor, Inc., 724 So. 2d 572 (Fla. 3d DCA 1998), rev. dismissed, 729 So. 2d 918 (Fla. 1999) (Abamar II); see Abamar Housing & Dev., Inc. v. Lisa Daly Lady Decor, Inc., 698 So. 2d 276 (Fla. 3d DCA), rev. denied, 704 So. 2d 520 (Fla. 1997) (Abamar I); Marcus & Marcus, P.A. v. Sinclair, 731 So. 2d 845 (Fla. 3d DCA 1999); and, of particular significance, that it took an unfair, “informational” advantage of its adversary in the process. Abamar II, 724 So. 2d 572; Gen. Accident Ins. Co. v. Borg-Warner Acceptance Corp., 483 So. 2d 505 (Fla. 4th DCA 1986); Double T Corp. v. Jalis Dev., Inc., 682 So. 2d 1160 (Fla. 5th DCA 1996); Zarco Supply Co. v. Bonnell, 658 So. 2d 151 (Fla. 1st DCA 1995). Disqualification of the firm as a whole is therefore required.

"Unfair, 'informational' advantage." Sounds more like the name of a European punk rock band than a proper legal standard, but whatever it is you don't want to be found to have engaged in it. There has got to be a good story or two behind this opinion.

Phil Allen, my hat's off to you, buddy, another well-earned notch for that lovely boat of yours.