IN THE SUPREME COURT OF FLORIDA
(Before a Referee)
THE FLORIDA BAR,
Case No. SC02-2563
TFB File No. 2000-11,312(12A)
DARYL JAMES BROWN,
REPORT OF THE REFEREE
SUMMARY OF PROCEEDINGS
Pursuant to the undersigned being duly appointed as referee to conduct
disciplinary proceedings herein according to R. Regulating Fla. Bar 3-7.6, the
following proceedings occurred:
The Florida Bar filed its Complaint with the Florida Supreme Court on
December 6, 2002. The adjudicatory portion of the disciplinary proceedings was
held over a period of four days, beginning on September 9, 2003. At the request
of the parties, the proceedings were bifurcated, with the penalty portion of the
proceedings thereafter held on October 13, 2003.
All orders, pleadings, responses, relevant correspondence and exhibits
received in evidence constitute the record in this case and are forwarded to the
Supreme Court of Florida along with this Report.
Jurisdictional Statement. The Respondent, Daryl James Brown, is, and at all
material times was, a member of the Florida Bar subject to the jurisdiction of the
Supreme Court of Florida.
The Respondent, a member of the Florida Bar for over 30 years, has been
charged by the Florida Bar with violations of Rules 3-4.3 and 4-8.4(c) of the Rules
Regulating the Florida Bar. The salient facts as proven by the Bar by clear and
convincing evidence are as follows:
FINDINGS OF FACT
1. At some point in 1995, the Respondent formed Hillview Development
Corporation (“Hillview”). The sole owners of this corporation were the
Respondent and his wife, with each being 50% shareholders.
2. At the time Hillview was formed, and at the time of the conduct alleged
in the Bar’s Complaint, the Respondent was a partner and shareholder in a law firm
known as Brown, Clark & Walters, P.A. (“BC&W”). The law firm is now known
as Brown, Clark, Christopher & Demay, P.A.
3. The purpose of Hillview Development Corporation was to develop a
piece of property in the resort area of Vail, Colorado. Toward that end, Mr.
Brown undertook, on behalf of Hillview, to build a duplex in Vail, and he hired J.L.
Viele Construction Company, Inc. (“Viele”) to build it.
4. At some point during the construction of this duplex, a dispute arose
between Viele and Hillview. The contract between Hillview and Viele is not
particularly germane to this proceeding, except insofar as it serves as background
for the underlying Complaint.
5. On or about June 9, 1995, Respondent, in his capacity as president of
Hillview, executed an engagement letter prepared by his own law firm for the
representation of Hillview in the course of the duplex construction.
6. The duplex contained two parcels, “Parcel A” and “Parcel B.” Parcel
B was sold by Hillview on October 1, 1996. However, according to Hillview, the
construction had not been completed, so Hillview did not pay Viele completely for
its work on the duplex. Then, on or about October 28, 1996, Viele filed a
mechanic’s lien in the amount of $279,700.81 against both “Parcel A” and “Parcel
7. Approximately two weeks later, Hillview filed a lawsuit in Colorado
state court against Viele alleging breach of contract, wrongful filing of a lien and
other claims. Within days of that, Viele filed a lawsuit against Hillview for breach
of contract and foreclosure of its lien. The cases were then consolidated in the
District Court for Eagle County, Colorado. The Referee was provided with the
relevant suit papers from that litigation.
8. Approximately three months later, Hillview entered into a contract for
the sale of “Parcel A” for $1,440,000 with a closing scheduled for March 28, 1997.
However, Hillview could not sell the property with clear title until Viele’s
mechanic’s lien was discharged.
9. Under Colorado law, the owner of property subject to a mechanic’s
lien may substitute a surety bond in its place, thereby clearing title to the property.
However, Colorado Statute § 38-22-131(2) expressly states the following:
Such bond or undertaking plus costs allowed to date
shall be in an amount equal to one and one-half times the
amount of the lien plus costs allowed to date and shall be
approved by a judge of the district court with which such
bond or undertaking is filed.
10. Pursuant to the express provisions of Colorado law, the very act of
securing a mechanic’s lien discharge bond confers jurisdiction upon the District
Court over the parties until the obligation has been satisfied.
11. On or about March 6, 1997, the Respondent sought a mechanic’s lien
discharge bond pursuant to the cited statute. Apparently the only company Mr.
Brown contacted was Pioneer General Insurance Company (“Pioneer”), a licensed
surety company in Denver, Colorado. The Respondent spoke with the president of
the company and identified himself as an attorney from Florida.
12. After discussing the matter with the president of Pioneer General
Insurance Company, Bob Warburton, the Respondent reduced to writing the nature
of the obligation that Pioneer would undertake on behalf of Hillview.
13. The resulting letter dated March 6, 1997 from the Respondent to
Pioneer confirmed the relationship between Hillview and Pioneer, and specifically
makes reference to a “Mechanic’s Lien Transfer Bond/J.L. Viele Construction,
14. On page two of that letter, which was received in evidence as the
Bar’s Exhibit 1, the Respondent expressly states the following:
. . . my intent is to purchase a certificate of deposit or the
equivalent at First Bank of Vail in the approximate
amount of $420,000.00, so that the bank will, in turn,
pledge the certificate of deposit or otherwise obligate
itself directly to Pioneer General, as full cash collateral to
Pioneer General for issuing the proposed bond in the
amount of $420,000.00. [Emphasis supplied by the
15. In reliance upon the representations of Respondent, Pioneer General
Insurance Company issued a bond to cover the mechanic’s lien. The application
for bond signed by the Respondent as president of Hillview Development
Corporation was received in evidence as the Bar’s Exhibit 2. It contains an
indemnity agreement which provides, in pertinent part, the following:
(4) The Surety shall have the sole right, for itself and for
the Undersigned, to determine whether any claim,
demand, suit or judgement [sic] shall be paid, settled,
defended or appealed, which determination shall be
binding upon the Undersigned.
16. The “Undersigned” was Daryl J. Brown. He signed the application on
March 28, 1997 as president of Hillview Development Corporation. On the same
date, the Respondent signed a discharge of mechanic lien drafted by Pioneer
General Insurance Company and signed on its behalf by Bruce H. Lowdermilk.
The amount of the bond was $419,551.21 to discharge the lien under Colorado law
(representing one and one half times the amount of the lien).
17. On the same date, March 28, 1997, Hillview filed an “Uncontested
Motion for Substitution of Bond and Release of Lis Pendens,” with the District
Court in Eagle County, Colorado. The Colorado state court granted this
Uncontested Motion and entered an Order for Substitution of Bond and Release of
Lis Pendens. All of this occurred on the same date, March 28, 1997.
18. Hillview simultaneously sold Parcel A and a portion of the proceeds
were used to purchase a Certificate of Deposit in the amount of $420,000 from
First Bank of Vail. This was the CD that was used to secure the bond.
19. At all times material to these transactions, it is plain to the Referee that
Pioneer General Insurance Company issued the bond based solely upon
Respondent’s unequivocal representation that the CD would serve as “full cash
collateral” for the bond. The testimony presented by the principals of Pioneer to
this transaction makes it equally obvious to the Referee that Pioneer would not have
issued the discharge bond had the CD not served as “full cash collateral.”
20. One week later, on April 4, 1997, the Respondent, on behalf of
Hillview, executed a security agreement for the benefit of his law firm, BC&W,
pledging the very same Certificate of Deposit that he had previously pledged to
Pioneer as full cash collateral.
21. In the security agreement, which is 11 pages long, it is expressly and
repeatedly stated that “HILLVIEW intends that this security interest of BC & W in
the CD have priority over all other claims or interests to the CD by any other
creditors of HILLVIEW whatsoever.” The security agreement was received in
evidence as subpart “B” of the Bar’s Exhibit 23.
22. In addition to establishing a priority interest in the CD for the benefit
of his own law firm, the Respondent expressly stated in paragraph 20 of the
security agreement the following:
The person executing this Security Agreement on behalf
of HILLVIEW hereby personally represents and warrants
to BC & W that he is authorized to do so and that this
Security Agreement is fully enforceable against
HILLVIEW. Further, the undersigned officer hereby
personally represents and warrants that HILLVIEW is the
sole owner of the CD and that HILLVIEW has good and
marketable title to the CD free and clear of any claims,
liens and encumbrances except liens and encumbrances
granted to BC & W. For breach of this warranty,
HILLVIEW shall be liable to BC & W for all losses,
damages and costs of collection of the same, including
but not limited to attorneys’ and legal assistants’ fees and
legal expenses. [Emphasis supplied by the Referee.]
23. At several points during the testimony presented in this disciplinary
proceeding, the Respondent and his partners, Mr. Christopher and Mr. Clark,
testified that this security agreement was an “internal document” that was not
designed to do anything except protect the law firm in the event of Mr. Brown’s
“untimely demise.” They further testified that the security agreement was generated
by a law clerk working at the firm and prepared using boilerplate provisions.
24. In essence, the Respondent and his partners suggested that this
security agreement is an ordinary commercial document and that the multiple
references to BC&W having the priority interest in the CD and the express
representations and warranty of Hillview as the sole owner of the CD were
inadvertently produced provisions in a document signed by Mr. Brown without first
25. Indeed, that is precisely what the Respondent testified to at the
disciplinary hearing. He expressly stated that he did not read the security agreement
before he signed it. He stated under oath that in retrospect he might do things
differently today, and further that he regrets not having read it before signing it.
The Referee finds this testimony incredible and unworthy of belief.
26. In particular, on page two, paragraph three, the security agreement
specifically recognizes the following:
This security interest is given to secure payment and
performance for the full amount of all legal services
rendered and to be rendered in the future, as billed, or as
accumulated and not billed, and all costs advanced and to
be advanced, to HILLVIEW, in connection with BC &
W’s representation of HILLVIEW on the project and in
the litigation (The “indebtedness”).
There is no recognition within this security agreement that it was intended in
any way to protect the firm in the event of Mr. Brown’s untimely demise.
27. If, in fact, Respondent and his partners intended to merely protect the
firm’s interests, there are myriad other ways to do so (as by will or partnership
agreement amendment) without subjugating Pioneer’s interests.
28. In essence, the Respondent pledged to Pioneer General Insurance
Company as “full cash collateral” a certificate of deposit in the amount of $420,000
as security for the discharge of a mechanic’s lien, and then seven days later turned
around and pledged this very same certificate of deposit to his own law firm as
security for its legal fees for representing the Respondent and his alter ego, Hillview
29. At no time did Respondent ever advise Pioneer General Insurance
Company that he had pledged the same security to another party for a different
obligation, notwithstanding his representation to the president of Pioneer General
that the CD served as “full cash collateral.”
30. Respondent knew that his conduct was contrary to honesty and
31. In June 1998, the consolidated case of Hillview v. Viele was tried in
Colorado state court. It resulted in a jury verdict for Viele in the amount of
$147,000, but this was only for breach of contract. The jury verdict did not
dispose of Viele’s claims on the mechanic’s lien and for attorney’s fees under the
contract or Hillview’s claims for statutory breach of trust and excessive lien.
32. On or about August 12, 1998, Hillview filed for bankruptcy, claiming
the certificate of deposit held by First Bank as its sole asset. The bankruptcy
created an automatic stay of the state court action.
33. In August 1998, the Respondent received statements for legal services
from his own law firm totaling $198,688.62 for legal services provided to Hillview.
34. After Hillview filed for bankruptcy and the state court action was
automatically stayed, the federal court allowed the state court claim to proceed in
35. Once the stay was lifted and the state court proceeding involving
Hillview and Viele was allowed to proceed, the Colorado state trial court judge
issued a ruling on the remaining issues in that case. This ultimately resulted in the
entry of a Final Judgment on all claims against Hillview in the amount $353,336.11.
This judgment was entered on February 17, 1999. The Court also awarded Viele
$198,234.95 for attorneys fees, $2,300 for expert witness fees, and costs in the
amount of $19,116.75.
36. The judgment against Hillview specifically ordered Pioneer to pay the
judgment. Pioneer thereafter paid $375,374.30 in satisfaction of the judgment
against Hillview. The arguments of counsel notwithstanding, pursuant to
paragraph (4) of the indemnity agreement signed by Respondent as president of
Hillview Development Corporation, Pioneer had the absolute legal right to do that
which it did, and that was to pay the judgment.
37. Put another way, for the purposes of this proceeding, it matters not
that Hillview could have, should have, or did appeal the judgment. It also matters
not that Hillview might have succeeded in the appeal. The right of Pioneer to do
what it did was absolute, and guaranteed by the document Respondent himself
signed as President of Hillview.
38. Much has been made throughout this proceeding of the fact that Daryl
Brown never anticipated that a judgment might be rendered against Hillview in an
amount that would consume the entire certificate of deposit. The Referee finds that
the Respondent believed at one time that the certificate of deposit was large enough
to pay Viele after the conclusion of the lawsuit, as well as attorneys’ fees and costs
39. However, this also matters not, for Mr. Brown pledged the CD to
Pioneer as “full cash collateral.” Afforded its common meaning, that term plainly
means that the CD, for all intents and purposes, belonged to Pioneer, for it had
been pledged as the sole and only collateral for the release of a mechanic’s lien
which had been placed upon property previously owned by Hillview.
40. Throughout the bankruptcy proceeding, the sole asset of Hillview was
the CD. This may account for the fact that the federal court allowed the state court
lawsuit between Hillview and Viele to proceed as it did. However, the Referee
specifically finds that that it is likewise not germane to this disciplinary proceeding.
41. Although alleged in paragraph 42 of the Complaint against the
Respondent, it was never demonstrated to the Referee that Pioneer filed and/or
recorded a UCC-1 financing statement with the Colorado Secretary of State on
April 29, 1999 against the proceeds of the certificate of deposit held by First Bank.
42. However, it was demonstrated that BC&W filed and recorded a UCC-
1 financing statement with the Colorado Secretary of State on or about May 7,
1999 against the proceeds of the certificate of deposit held by First Bank. This
financing statement and the security agreement are what ostensibly provided
BC&W with a priority interest in the proceeds of the CD.
43. Because Pioneer, Viele and BC&W were asserting competing claims
against the certificate of deposit, the parties agreed to deposit the funds into the
registry of the court in Colorado. A short while thereafter, following settlement
negotiations, the Respondent (acting in his capacity as president of Hillview),
executed a settlement agreement and mutual release of claims on October 18, 1999.
44. Pursuant to the settlement agreement, BC&W received $100,000 in
proceeds from the certificate of deposit, $227,254.98 went to Pioneer and the
remainder to Viele and First Bank. The settlement agreement was received in
evidence as the Bar’s Exhibit 24 in the disciplinary proceeding.
45. The Bar essentially charges Respondent with rule violations as set
forth above through his pledging of the certificate of deposit proceeds twice: first
to Pioneer General Insurance Company as full cash collateral for a debt or potential
debt up to the amount of the CD, and second to his law firm seven days thereafter
as security for legal fees for representing Hillview in the very dispute which caused
the filing of the mechanic’s lien and litigation in the first place.
46. Because the Respondent pledged the certificate of deposit proceeds
twice, (something the Bar aptly describes as a “double pledge”), Pioneer lost
substantial sums of money, and the Respondent’s law firm received $100,000 at
47. Specifically, as was proven at the disciplinary hearing, Pioneer
suffered a net loss of $148,119.32 on the judgment rendered against it, and further
suffered legal expenses in the amount of $34,485.90.
48. As a result of the foregoing, the Bar charged the Respondent with
violating Rule 3-4.3 entitled “Misconduct and minor misconduct,” and Rule 4-
8.4(c) regarding dishonesty, fraud, deceit or misrepresentation.
49. Rule 3-4.3 is a general provision which proscribes any act by a lawyer
that is “unlawful or contrary to honesty and justice, whether the act is committed in
the course of the attorney’s relations as an attorney or otherwise, whether
committed within or outside the state of Florida, and whether or not the act is a
felony or misdemeanor. . . .” Rule 4-8.4(c) specifically proscribes any conduct
which involves dishonesty, fraud, deceit or misrepresentation.
50. The Referee finds violations of both rules.
51. The Respondent presented the testimony of Dr. Anthony V. Alfieri in
an effort to demonstrate that the Respondent committed no ethical violations. Dr.
Alfieri testified that although he basically knows little about the commercial
transactions which serve as the underlying basis for the charges leveled against the
Respondent by the Bar, this does not prevent him from rendering an opinion to the
effect that the Respondent did not intend to do that which the Bar has clearly
proven he did.
52. The arguments advanced by Dr. Alfieri are a non sequitur. If he is
not an expert in the underlying transactions or in commercial law, it is impossible
for him to render the opinions he did without first concluding that Mr. Brown was
telling the truth. That is a credibility determination more appropriate for the Referee
53. On the issue of the credibility of the Respondent, this Referee is not
the first judge to evaluate Mr. Brown’s credibility. In that regard, in the order
rendered by the District Court for Eagle County, Colorado (received in evidence as
the Bar’s Exhibit 17), the Court made the following observations:
11. The testimony revealed that Brown made and
directed numerous framing changes and then claimed that
he never approved these numerous changes in writing and
therefore did not have to pay for them. The Court got a
flavor for Mr. Brown during the jury instruction
conference when Brown agreed off the record to the
slander of title instruction and then, after the jury had
been charged and it was impossible to work out the issue,
voiced his objection to the instruction. Brown did the
same thing repeatedly on this project - he would order
changes to be done immediately and then would deny
doing so after the work had been accomplished.
[Emphasis supplied by the Referee.]
54. Although not specifically charged, the Bar argues that the affidavit
submitted by the Respondent in opposition to the Motion for Summary Judgment
in the adversary bankruptcy proceeding involving Hillview Development
Corporation contains misrepresentations by the Respondent. Because this has not
been charged, the Referee may only look to this in evaluating the Respondent’s
credibility before the Referee.
55. This affidavit was received in evidence as the Florida Bar’s Exhibit 25.
In that document, the Respondent, as president of Hillview Development
Corporation, states on numerous occasions that Pioneer General Insurance
Company did not specifically agree to require an actual security interest in the funds
on deposit with the First Bank of Vail. That was clearly not the case and the
Respondent’s assertions to the contrary adversely reflect upon his credibility
before the Referee.
In its filings with the Referee and argument presented at the disciplinary
hearing, the Bar urges the Referee to recommend a two-year suspension from the
practice of law. The bases for this argument are the Respondent’s prior
disciplinary record (see Florida Bar v. Brown, 790 So. 2d 1081 (Fla. 2001)) and the
fact that the same rule violation is at issue here once again.
The Respondent, while not conceding that he has done anything wrong,
argues instead for a maximum penalty of a public reprimand like that which the
Referee recommended in the case cited above. The Florida Supreme Court
rejected the recommendation and instead imposed a 90-day suspension.
There is both substantial aggravation and mitigation of the Respondent’s
conduct. The potential aggravators that the Referee may consider before imposing
lawyer sanctions are as follows:
1. Prior disciplinary offenses
2. Dishonest or selfish motive
3. A pattern of misconduct
4. Multiple offenses
5. Bad faith obstruction of the disciplinary proceeding
6. Submission of false statements or submission of false evidence
7. Refusal to accept responsibility
8. Vulnerability of victim
9. Substantial experience in the practice of law
10. Indifference to making restitution
The Referee finds that five of these aggravators are present here. There is a
prior disciplinary history as set forth above. The conduct with which the
Respondent is charged and which the Bar has proven evinces a selfish motive. The
Respondent and his wife owned Hillview Development Corporation, and his “deal”
with his law firm was less than an arms-length transaction. The security agreement
that he signed selfishly placed the interests of his own law firm above the bonding
company. He did this even though it was the bonding company that accepted the
Respondent’s representations regarding “full cash collateral,” and thereafter stuck
its neck out by issuing the mechanic’s lien discharge bond, a bond that
automatically subjected it to the jurisdiction of a court of law in Colorado.
That Respondent thought his obligations were fully satisfied at the time of the
double pledge is of no consequence to this Referee, for it is the signing of the
security agreement with his own law firm and the nondisclosure to Pioneer that was
dishonest and selfish, and not the subsequent court order that made it so.
Throughout this proceeding, the Respondent has refused to accept
responsibility for anything other than not reading the security agreement. Of course
not reading the security agreement flies in the face of substantial so-called
“mitigation” testimony from the Respondent’s partners, clients, and a circuit court
judge to the effect that the Respondent is a “detail man” and one who is always
prepared. In short, failing to read something before he signed it is contrary to the
Respondent’s nature and the Referee affords all the testimony that seems to ignore
that fact very little weight.
There is also a great deal of evidence before the Referee to support the fact
that the Respondent has substantial experience in the practice of law. But the
Referee will go one step further, and state unequivocally that the “substantial
experience” was garnered in this very area of law, i.e., construction litigation.
According to Respondent’s own witness, Charles Bartlett, Esq., he is considered
“one of the top litigators in Sarasota.”
In addition, the Respondent has, through his actions and the argument of his
counsel during this proceeding, expressed some indifference to making restitution.
In that regard, when counsel continually argues that Pioneer’s payment of the
judgment was “voluntary,” or when the argument is made to the effect that “we
would have won on appeal,” or “Pioneer deprived us of the opportunity to win on
appeal,” or any species of similar argument, this flies in the face of the document
that the Respondent himself signed in order to obtain the mechanic’s lien discharge
bond in the first place.
The bottom line is simply this: the application for bond specifically gives
Pioneer the sole discretion to settle or pay any claim or judgment that is rendered
against it or Hillview. That experienced counsel would ignore that provision leads
to the conclusion that he is indifferent to making restitution.
1. Absence of prior disciplinary record
2. Absence of dishonest or selfish motive
3. Personal emotional problems
4. Timely good faith effort to make restitution or rectify misconduct
5. Full and free disclosure to disciplinary agency or cooperative attitude
in disciplinary proceedings
6. Inexperience in the practice of law
7. Character or reputation
8. Physical or mental disability or impairment
9. Unreasonable delay in the disciplinary proceedings not caused by the
10. Interim rehabilitation
11. Imposition of other penalties or sanctions
13. Remoteness of prior offenses
Among the mitigators that the Referee should and must consider are those
listed above. Upon close examination of the testimonial and documentary evidence
presented at this disciplinary hearing, the Referee finds that only one of these
mitigators has been demonstrated. That mitigator is the character or reputation of
Notwithstanding the Respondent’s prior disciplinary record, Mr. Brown has
a lengthy and distinguished record of and reputation for charitable and other
philanthropic involvement in the community. In that regard, Respondent has served
on the Board of Directors for United Way, has participated in or otherwise been
involved with United Cerebral Palsy, Cystic Fibrosis, the American Heart
Association, the American Cancer Society, the Sarasota County Educational
Foundation, Special Olympics, the Humane Society, and the Boys and Girls Clubs.
Over the years, the Respondent has coached basketball, baseball, T-ball, football
and soccer for young children.
The Respondent has also been actively involved in the Ringling Museum, the
American Jewish Committee, and has received several awards from the Sarasota-
Manatee Lawyer Referral Service in recognition of his contributions to the
provision of pro-bono service in Sarasota.
The Referee has no doubt but that the Respondent has made substantial
contributions to his community. As he stated in his testimony before the Referee,
he is generally regarded as a “soft touch” when it comes to giving back to his
All that said, however, the Referee finds it most difficult to reconcile the
Respondent’s philanthropic efforts with his conduct in this and the prior case cited
Throughout the course of these proceedings, counsel have, at various times,
characterized this matter as “complicated.” And while the transactions that serve as
the underlying basis for the allegations made against the Respondent were anything
but ordinary, the Referee does not agree with this characterization.
This is essentially a simple matter. Mr. Brown, a member of the Florida Bar
with over 30 years experience in the field of construction contract litigation, sought
a mechanic’s lien discharge bond from an insurance company. He represented that
a certificate of deposit that he would post as collateral for the issuance of that bond
would serve as “full cash collateral.” It matters not that at the time he made that
representation, his potential liability as a principal of Hillview would have been or
could have been less than the amount of the CD. In the end, that turned out not to
be the case.
Within days of pledging the CD as “full cash collateral” to Pioneer General
as consideration for the issuance of a mechanic’s lien discharge bond, the
Respondent, also a member of a law firm in Sarasota, Florida, turned around and
pledged the same collateral to his own law firm. The Bar’s characterization of this
as a “double pledge” is most apt, as it plainly indicates that which the Bar has
proven, and that is that the Respondent essentially sought to secure for his law firm
legal fees incurred by a corporation he founded. These fees were incurred as the
corporation was on the threshold of bankruptcy, with the Respondent all the while
knowing that he had pledged the same collateral to a surety company as “full cash
At the time Respondent signed the security agreement inuring to the benefit
of his own law firm, Respondent knew that his conduct was contrary to honesty
and justice. Further, he did not disclose the existence of the security agreement to
Pioneer General. Even more troubling is the fact that he sees nothing wrong with
any of this.
The Referee is unpersuaded by testimony elicited from the Respondent and
his partners to the effect that the security agreement was an “internal document”
which was never intended to be used to undermine the interests of Pioneer General.
The very fact that the law firm derived the benefit of $100,000 through so-called
settlement negotiations during the course of the underlying state court litigation
suggests to the Referee that it was the law firm’s intent from the very beginning to
protect its interests, even if it came at the expense of Pioneer.
In addition, there is nothing about the security agreement that even remotely
suggests that it was a boilerplate document. There are numerous references to the
fact that the law firm had a priority interest and that Hillview was the sole owner of
the CD. There was no reference whatsoever to Pioneer’s interest, even though it
was the procurement of the CD and its pledge by the Respondent to Pioneer
General that caused Pioneer General to issue the bond and allowed Hillview to sell
the property in the first place.
That experienced lawyers did not know and understand the import of the
document that they created for their own benefit defies both common sense and
The Referee disagrees with the recommended sanctions of the Bar and the
Respondent, and after due consideration of the record and relevant case law,
instead recommends a six-month suspension from the practice of law.
STATEMENT OF COSTS AND MANNER TAXED
It is the finding of the Referee that reasonable costs have been incurred by
The Florida Bar and that they should be taxed against the Respondent.
Grievance Committee Level
1. Administrative costs pursuant to Rule 3-7.6(o)(1)(I) $750.00
2. 8/22/01 Grievance Committee Meeting
Travel/Tolls – Brett A. Geer 52.90
3. 7/15/02 Meeting with Daryl Brown in Sarasota
Travel – Jodi Anderson 49.40
4. 8/28/02 Grievance Committee Summary Hearing
Travel – Jodi Anderson 28.50
5. 4/22/03 Summary Judgment Hearing, Fort Myers
Travel/Parking – Jodi Anderson 105.50
6. 6/9/03 Deposition of Leo Meirose, Jr.
Riley Reporting Services fees 215.25
7. 6/17/03 Depositions of Brown, Christopher & Clark, Sarasota
Travel – Jodi Anderson and Debra J. Davis 49.40
Meals – Jodi Anderson and Debra J. Davis 15.00
8. 6/17/03 Depositions of Christopher, Brown & Clark
Demby & Associates, Inc. Court Reporter fees 995.00
9. 6/18/03 – 6/20/03 Depositions, Denver, Colorado
Airfare – Jodi Anderson 423.00
Lodging (2 nights) 224.00
Meals/Tips – Jodi Anderson 51.83
Auto Rental 75.00
Hotel Tips/Shuttle 20.00
10. 6/19/03 Depositions of Lowdermilk, Warburton, Meer, Neel
Bruno Reporting Company fees 463.20
11. 6/30/03 Mediation, Tampa
Travel/Parking – Jodi Anderson 7.20
Travel/Parking – Susan V. Bloemendaal 10.84
12. 7/25/03 Colorado Secretary of State
Certified Copies Re: Hillview Development Corporation 7.00
13. 8/18/03 Deposition of Anthony Alfieri
Personal Touch Reporting fees 617.80
14. 8/25/03 Nolen-Martina Reporting Services
Hearing Appearance fee 45.00
15. 8/26/03 Depositions of Krahenbuhl, Madagan, Sugar, Tampa
Travel – Jodi Anderson 5.70
16. Depositions of Krahenbuhl, Madagan, Sugar
Clark Reporting Service fees 855.55
17. 9/4/03 Deposition of Randolph Braccialarghe, Tampa
Travel – Jodi Anderson 5.70
18. 9/4/03 Deposition of Randolph Braccialarghe
Riley Reporting Service fees 273.25
19. 9/8/03 – 9/12/03 Final Hearing, Fort Myers
Lodging – Jodi Anderson and Debra J. Davis (3 nights) 258.88
Lodging (5 witnesses) 304.00
Travel/Tolls – Jodi Anderson 161.80
Meals – Jodi Anderson and Debra J. Davis 102.93
Parking/Tips – Debra J. Davis 15.00
20. 6/19/03 – 9/12/03 Robert Warburton
Travel – Automobile 176.40
9/8/03 – 9/9/03 Trial:
Witness Fee 15.00
Travel – Automobile 176.40
21. 9/8/03 – 9/9/03 Bruce Lowdermilk
Witness Fee 10.00
Travel – Automobile 25.92
Meals-Lowdermilk and Warburton 80.19
22. 9/9/03 – 9/10/03 Robert Meer
Witness Fee 5.00
23. 8/14/03 – 9/10/03 Michael J. Sugar
Expert Witness Consultation 4,000.00
Fax and copies 22.40
24. 8/18/03 – 9/10/03 Randolph Braccialarghe
Expert Witness Fee 4,590.00
25. Fort Myers Court Reporting
9/9/03 – 9/11/03 Final Hearing 4,093.35
10/12/03 – 10/13/03 Sanctions Hearing 935.00
26. 10/12/03 – 10/13/03 Sanctions Hearing, Fort Myers
Lodging – Jodi Anderson and Susan V. Bloemendaal 84.00
Meals – Jodi Anderson and Susan V. Bloemendaal 79.92
27. Copy costs (1.624 @ $.15 per page) 243.60
It is recommended that the reasonable costs should be charged to the
Respondent and that interest at the statutory rate shall accrue and be payable
beginning 30 days after the judgment in this case becomes final unless a waiver is
granted by The Board of Governors of The Florida Bar.
DATED this_______ day of November, 2003.
Leigh Frizzell Hayes
1700 Monroe Street
Fort Myers, Florida 33901
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that the original of the foregoing Report of Referee
has been mailed to THE HONORABLE THOMAS D.HALL, Clerk, Supreme
Court of Florida, 500 South Duval Street, Tallahassee, Florida 32301, and that
copies were mailed by regular U.S. Mail to JOHN A. BOGGS, Staff Counsel, The
Florida Bar, 650 Apalachee Parkway, Tallahassee, Florida 32399-2300; Jodi
Anderson, Assistant Staff Counsel, The Florida Bar, 5521 West Spruce Street,
Suite C49, Tampa, Florida 33607-5958; and Scott K. Tozian, Esquire, Smith and
Tozian, P.A., 109 North Brush Street, Suite 200, Tampa, Florida 33602, on this
_______ day of November, 2003.