The Florida Bar v. Brown

905 So. 2d 76, 2005 WL 1355026
CourtSupreme Court of Florida
DecidedJune 9, 2005
DocketSC02-2563
StatusPublished
Cited by20 cases

This text of 905 So. 2d 76 (The Florida Bar v. Brown) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
The Florida Bar v. Brown, 905 So. 2d 76, 2005 WL 1355026 (Fla. 2005).

Opinion

905 So.2d 76 (2005)

THE FLORIDA BAR, Complainant,
v.
Daryl James BROWN, Respondent.

No. SC02-2563.

Supreme Court of Florida.

June 9, 2005.

*78 Lawrence M. Hankin, Vice Chair, Twelfth Judicial Circuit, Grievance Committee "A," Sarasota, Florida, John F. Harkness, Jr., Executive Director, John Anthony Boggs, Staff Counsel, and Jodi Anderson, Assistant Staff Counsel, The Florida Bar, Tallahassee, FL, for Complainant.

Scott K. Tozian and Gwendolyn H. Hinkle of Smith and Tozian, P.A., Tampa, FL, for Respondent.

PER CURIAM.

We have for review a referee's report regarding alleged ethical breaches by Daryl James Brown. We have jurisdiction. See art. V, § 15, Fla. Const. For the reasons that follow, we approve the referee's report and suspend Daryl James Brown from the practice of law for six months.

PROCEDURAL AND FACTUAL HISTORY

On December 2, 2002, The Florida Bar filed a complaint against Daryl James Brown, alleging violations of Rules Regulating the Florida Bar 3-4.3 (misconduct and minor misconduct) and 4-8.4(c) (misconduct involving dishonesty, fraud, deceit, or misrepresentation). After a formal hearing, the appointed referee made the following findings of fact.

In 1995, Brown was a partner and shareholder in a law firm known as Brown, Clark & Walters, P.A. (BC & W). During this same period, Brown formed Hillview Development Corporation (Hillview), of which he and his wife were the sole owners, each holding 50% of the shares. The purpose of Hillview was to develop a piece of property in Vail, Colorado. On behalf of the corporation, Brown hired J.L. Viele Construction Company, Inc. (Viele) to build a duplex. Unfortunately, a dispute arose between Viele and Hillview. Brown, as president of Hillview, retained BC & W to represent Hillview.

On October 1, 1996, Hillview sold Parcel B of the duplex. However, since Hillview alleged that Viele did not complete its work on the duplex, it did not pay Viele in full. On October 28, 1996, Viele filed a mechanic's lien against both parcels of the duplex in the amount of $279,700.81. Hillview then filed a lawsuit in Colorado state *79 court, alleging that Viele breached the contract and wrongfully filed a lien. Shortly thereafter, Viele filed a lawsuit against Hillview for breach of contract and foreclosure of its lien. The cases were consolidated.

About three months later, Hillview found a buyer who was willing to pay $1,440,000 for Parcel A of the duplex, but Hillview could not sell the property with clear title until either the mechanic's lien was discharged or a proper surety bond was in place and approved by a judge. See generally Colo.Rev.Stat. § 38-22-131 (2000). On March 6, 1997, Brown contacted Pioneer General Insurance Company (Pioneer), a licensed surety company in Denver. Brown spoke to the president of the company, Bob Warburton, about issuing a mechanic's lien discharge bond and identified himself as an attorney from Florida. After the conversation, Brown wrote a letter to Pioneer expressly stating:

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.

In reliance on these statements, including the representation that the certificate of deposit would serve as "full cash collateral," Pioneer agreed to issue a bond to cover the mechanic's lien. Brown then filed an "Uncontested Motion for Substitution of Bond and Release of Lis Pendens" with the Colorado court, which the court granted. Hillview was then able to proceed to closing on Parcel A and used a portion of the proceeds to purchase a certificate of deposit in the amount of $420,000 from First Bank of Vail in order to secure the bond.

One week later, Brown, as president of Hillview, executed a security agreement for the benefit of his law firm, pledging the very same certificate of deposit that he had previously pledged to Pioneer as full cash collateral. The security agreement 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." In addition to establishing a priority interest in the certificate of deposit for the benefit of his law firm, Brown expressly stated in the agreement:

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 [Brown] 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.

In June 1998, the consolidated breach of contract case was tried before a Colorado jury, resulting in a jury verdict in favor of Viele in the amount of $147,000 for the breach of contract claims. In August, Hillview filed for bankruptcy, and the state court action was stayed. After the federal court allowed the state court claim to proceed in rem, the Colorado state court judge issued a ruling on the remaining claims, including Viele's claim for attorney's *80 fees. On February 17, 1999, final judgment was entered against Hillview in the amount of $353,336.11, plus costs, and the judgment further directed Pioneer to pay the judgment. Pioneer thereafter paid $375,374.30 in satisfaction of the judgment against Hillview.

On May 7, 1999, BC & W filed and recorded a UCC-1 financing statement with the Colorado Secretary of State against the proceeds of the certificate of deposit held by First Bank, providing the law firm with a priority interest in the proceeds of the certificate of deposit. Since BC & W, Pioneer, and Viele asserted competing claims against the certificate of deposit, the parties deposited the funds into the registry of the Colorado court. Following settlement negotiations, Brown, as president of Hillview, executed a settlement agreement and mutual release of the claims, whereby BC & W received $100,000, Pioneer received $227,254.98, and the remainder went to Viele and the bank.

On these facts, the referee found that because Brown engaged in "double pledging," Pioneer suffered a net loss of $148,119.32 on the judgment, and further suffered legal expenses of $34,485.90, while Brown's law firm received $100,000 at Pioneer's expense. The referee also expressly found that Brown knew that his conduct in "double pledging" was contrary to honesty and justice. Accordingly, the referee recommended that Brown be found guilty of violating rule 3-4.3 (misconduct and minor misconduct)[1] and rule 4-8.4(c) (dishonesty, fraud, deceit, or misrepresentation)[2]. In light of these violations and after considering certain aggravating and mitigating circumstances, the referee recommended a six-month suspension and the imposition of costs in the amount of $23,006.05.

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Bluebook (online)
905 So. 2d 76, 2005 WL 1355026, Counsel Stack Legal Research, https://law.counselstack.com/opinion/the-florida-bar-v-brown-fla-2005.