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IN THE SUPREME COURT OF FLORIDA

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									                  IN THE SUPREME COURT OF FLORIDA
                            (Before a Referee)

THE FLORIDA BAR,                                    Supreme Court Case
                                                    No. SC11-1011
      Complainant,

vs.                                                 The Florida Bar File
                                                    No. 2010-70,045 (11E)
JOHN HASAN RUIZ,

     Respondent.
__________________________/

                             REPORT OF REFEREE

I.    SUMMARY OF PROCEEDINGS:

      Pursuant to the undersigned being duly appointed as Referee for the

Supreme Court of Florida to conduct disciplinary proceedings as provided for by

Rule 3-7.6 of the Rules Regulating The Florida Bar, consideration of this cause

was undertaken. All of the pleadings, notices, motions and orders are forwarded

with this Report and the foregoing constitute the record in this case.

      The following attorneys appeared as counsel for the parties:

      On behalf of The Florida Bar: Daniela Rosette
                                    The Florida Bar
                                    444 Brickell Avenue
                                    Suite M100
                                    Miami, Florida 33131

      On behalf of Respondent:         John A Weiss, Esquire
                                       2937 Kerry Forest Pkwy., Suite B2
                                       Tallahassee, Florida 32309
       Respondent has submitted a Conditional Guilty Plea for Consent Judgment

(“Consent Judgment”), which provides for a Public Reprimand.

       The position of The Florida Bar, as approved by a Designated Reviewer of

the Eleventh Judicial Circuit, is that Respondent’s plea be accepted.

II.    FINDINGS OF FACT:

             A.     Jurisdictional Statement:

       Respondent is and was at all times hereinafter mentioned, a member of The

Florida Bar, and subject to the jurisdiction and disciplinary rules of the Supreme

Court of Florida.

             B.     Narrative Summary of Case and Facts:

       In this Consent Judgment, Respondent conditionally admits certain factual

matters, which I hereby accept and adopt as the findings of fact in this cause, to-

wit:

       1.    On March 17, 2003, Australia Mejia (“Mejia”) claimed injuries when

she fell at the Carmel Apartments (“Carmel”). At the time of the accident, Carmel

was owned by Respondent and by Anthony Davide (“Davide”). Each was a

director and fifty percent (50%) shareholder in Carmel.            On the Florida

Department of State’s Division of Corporations website Respondent was listed as


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President, Director and Registered Agent of Carmel.

      2.     Carmel’s only asset was the apartment complex, which was the site of

the alleged accident. Carmel had placed the apartment complex under contract for

sale in November 2002, prior to the date of the alleged injuries, but the closing,

which originally had been scheduled for a date before Mejia’s alleged fall, had

been delayed.

      3.     On March 20, 2003, Mejia sent a letter to Carmel putting it on notice

of her injuries and making a statutory demand for insurance information.

Respondent advised Mejia’s original lawyer that Davide had allowed the insurance

policy on the property to lapse and, therefore, the property was uninsured. Mejia

then proceeded to file suit against Carmel on May 15, 2003. Davide was served

on May 20, 2003 as the corporate representative of Carmel.

      4.     On June 9, 2003, Respondent filed a notice of appearance on behalf

of Carmel, as well as a motion for extension of time to respond to the complaint.

During the ensuing weeks Respondent was working on other matters and was out

of the country for a period of time.

      5.     Upon returning from the Bahamas, Respondent filed an answer on

July 15, 2003 on behalf of Carmel, which included eleven (11) affirmative

defenses. Respondent’s answer made no mention of the fact that he was fifty



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percent (50%) shareholder in Carmel.

      6.    On that same date, July 15, 2003, Carmel sold its only asset, the

apartment complex, for $2.225 million. Respondent received a cash distribution

of $168,000.00 and over $207,000.00 of income from the closing. Respondent,

through his law firm, investigated Mejia’s claim and concluded it had no merit and

since the corporate entity, Carmel, had no assets the decision was made that the

claim did not need to be defended.

      7.    On October 31, 2003, after Mejia noticed the case for trial,

Respondent moved to withdraw as counsel for Carmel stating that Respondent

“has discovered irreconcilable differences.” Respondent certified in his Motion

that it was not made in an effort to delay the action and that it was made in good

faith. Respondent withdrew on the thirtieth day following Mejia’s request for

production and Carmel, in essence, no longer defended the case.

      8.    Carmel’s pleadings were stricken, and on January 30, 2004, Mejia

obtained an uncontested final judgment of $51,377.50.

      9.    At no point during the proceedings did Respondent disclose to the

Court that he was a director and fifty percent (50%) shareholder of Carmel or that

Carmel had sold its only asset.

      10.   Unbeknownst to Mejia or to Respondent, on April 13, 2004, Davide



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filed Articles of Dissolution for Carmel. The Articles asserted an effective date of

December 31, 2003. Respondent had no advance knowledge of Davide’s filing

Articles of Dissolution for Carmel and only learned of it several years later.

      11.      Pursuant to Section 607.1406, Florida Statutes (2009), the provision

governing the manner in which corporations should be liquidated or dissolved,

Carmel was required to give notice to persons with known claims at the time of the

dissolution.    Davide, on behalf of Carmel, failed to give any notice of the

dissolution to Mejia.

      12.      Carmel subsequently failed to satisfy the judgment in favor of Mejia,

and therefore, Mejia instituted proceedings supplementary.

      13.      Mejia sought relief from the trial court arguing that Carmel had

sought to delay, hinder, or defraud her as a judgment creditor. The Honorable

Robert Scola, the judge presiding over the case, denied the relief, finding no

evidence of fraud. The trial court’s findings were based in good part on its

findings that the contract for Carmel’s sale was in existence prior to the date of the

alleged injuries.

      14.      Mejia appealed, and on May 14, 2008, the Third District Court of

Appeals (“Third DCA”) reversed, finding that “Mejia clearly satisfied her burden

by presenting numerous undisputed facts which supported several badges of fraud,



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as well as additional facts and circumstances buttressing a finding that Carmel did

‘delay, hinder or defraud’ Mejia.” In sum, the Third DCA concluded that “Mejia

[had] presented the trial court with [] prima facie proof of evidence of several

badges of fraud.” The Third DCA also found that appellees, Respondent and

Davide, put forth no evidence to rebut Mejia’s showing.

       15.   The Third DCA ordered that the transfers from Carmel to Respondent

and Davide be set aside to the extent necessary to satisfy Mejia’s judgment.

       16.   On June 9, 2009, the Supreme Court of Florida declined jurisdiction

to hear Carmel’s further appeal.

       17.   Mejia has since been made entirely whole. Her judgment was paid

and her attorney’s fees, which were in excess of $200,000, were paid totally from

Respondent’s personal funds.

III.   RECOMMENDATION AS TO GUILT:

       Based on the foregoing, I recommend that Respondent be found guilty of

violating the following Rule Regulating The Florida Bar: Rule 4-8.4(d) (conduct

prejudicial to the administration of justice) of the Rules Regulating The Florida

Bar.




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IV.   RECOMMENDATION AS TO DISCIPLINARY MEASURES TO BE

APPLIED:

      Having reviewed the record of these proceedings, I find that Respondent’s

plea and the recommendation of The Florida Bar as to the terms of discipline are

both fair to Respondent and in the best interests of the public. Accordingly,

Respondent’s Conditional Guilty Plea for Consent Judgment and the terms of

discipline recommended by The Florida Bar are accepted and hereby adopted as

the recommendation of this Referee in this matter.

V.    PERSONAL HISTORY AND PAST DISCIPLINARY RECORD:

      Prior to recommending discipline pursuant to Rule 3-7.6(k)(l), I considered

the following:

      A.    Personal History of Respondent:

            Age: 44
            Date admitted to The Florida Bar: March 24, 1992
            Prior Discipline: None

      B.   Factors Considered in Mitigation: I find that the following factors,

      which were submitted by Respondent, apply in mitigation:

            9.32(a)    - absence of prior disciplinary record
            9.32(d)    - timely good faith effort to make restitution or to rectify
                         consequences of misconduct
            9.32(e)    - full and free disclosure to disciplinary board or
                         cooperative attitude toward proceedings
            9.32(k)    - imposition of other penalties or sanctions

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VI.   STATEMENT OF COSTS:              I find that pursuant to Rule 3-7.6(q) of the

Rules of Discipline, reasonable costs are to be awarded to The Florida Bar as the

prevailing party in this disciplinary proceeding.    The amount to be assessed

against Respondent shall be determined by the undersigned following a further

submission by The Florida Bar regarding its taxable costs.

      Dated this _____ day of _________________, 2011.


                              _______________________________________
                               HONORABLE WENDELL M. GRAHAM
                               Referee

Copies to:
     John Hasan Ruiz, Respondent, c/o John A. Weiss, Attorney for Respondent
     Daniela Rosette, Bar Counsel
     Kenneth Lawrence Marvin, Staff Counsel




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