The Florida Bar v. Germain

957 So. 2d 613, 2007 WL 1437442
CourtSupreme Court of Florida
DecidedMay 17, 2007
DocketSC05-947, SC05-1096
StatusPublished
Cited by40 cases

This text of 957 So. 2d 613 (The Florida Bar v. Germain) 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. Germain, 957 So. 2d 613, 2007 WL 1437442 (Fla. 2007).

Opinion

957 So.2d 613 (2007)

THE FLORIDA BAR, Complainant,
v.
Mark F. GERMAIN, Respondent.
The Florida Bar, Complainant,
v.
Mark F. Germain, Respondent.

Nos. SC05-947, SC05-1096.

Supreme Court of Florida.

May 17, 2007.

*616 John F. Harkness, Jr., Executive Director, Kenneth Lawrence Marvin, Director of Lawyer Regulation, The Florida Bar, Tallahassee, FL, and JoAnn Marie Stalcup, Bar Counsel, The Florida Bar, Orlando, FL, for Complainant.

Mark F. Germain, pro se, Leesburg, FL, for Respondent.

PER CURIAM.

We review a referee's report recommending that Respondent Mark F. Germain be found guilty of unethical conduct and suspended from the practice of law for ninety-one days. We have jurisdiction. See art. V, § 15, Fla. Const. For the reasons explained below, we approve the referee's findings of misconduct but disapprove the referee's recommendation of a ninety-one day suspension and instead suspend the Respondent from the practice of law for one year.

PROCEDURAL BACKGROUND

The Florida Bar filed two separate complaints against Germain, which were consolidated and tried together before a referee. Before the hearing, the Bar and Germain entered into a stipulation about the facts. The stipulation established many of the facts alleged in the complaints, as well as other facts not alleged.

The referee filed two separate reports. The first report made factual findings and conclusions of guilt in both cases. The second and final report, issued after a separate hearing on the issue of discipline, contained the findings and conclusions contained in the first report, factual findings not made in the first report, findings concerning aggravating and mitigating factors, and recommendations of discipline. The facts, as found by the referee or as *617 established by the stipulation, are summarized below.

FACTUAL BACKGROUND

Case No. SC05-947

This case arose from a dispute between Germain and Michael C. Norvell concerning ownership of a building called the Lake Law Center (the building) and the employment of James Cardona, who was a paralegal first for Germain and then for Norvell. In November 2002, Germain executed a promissory note for $100,000 for Norvell in exchange for a one-third ownership of the building, where Germain and Norvell operated separate law firms. In April 2003, Norvell offered to purchase Germain's interest for $100,000. Germain rejected the offer.

In March 2004, Germain fired Cardona, his paralegal. The following month, Norvell increased his offer for Germain's interest in the building to $140,000. He also offered, in writing, to sell his two-thirds share to Germain for $280,000. Germain tentatively accepted the offer to purchase Norvell's interest, but was unable to obtain financing.

That same month, on April 17, Germain filed a police report alleging that Norvell had physically attacked him. The officer reported seeing a "large contusion on Mr. Germain's arm along with several slight abrasions." On April 19, Norvell entered one of the offices in the building, removed Germain's files, and sat behind the desk and in front of the computer. Germain and Norvell disputed ownership of that office. That same day, Cardona reported to work at the building, as Norvell had hired him. Cardona and Germain argued. Germain physically escorted Cardona off the premises.

The next day, April 20, Germain delivered a "no trespass" warning to Cardona's mother. Germain placed a lock on the door to the disputed office and placed a no-trespass warning on the door. The following day, Norvell removed the door from its hinges and entered the office. Germain called the police, who responded. Germain accused Cardona of trespassing even though he knew Cardona had Norvell's permission to be there and that Norvell owned two-thirds of the building. Germain then filed against Norvell a Petition for Injunction for Protection against Repeat Violence (Norvell Petition). In it, Germain swore that Norvell had a "hand gun with ammunition in our office." The court entered a temporary injunction against Norvell.

Germain also filed against Cardona a Petition for Injunction for Protection against Repeat Violence (Cardona Petition). In it, Germain alleged that "Cardona is stalking me and is trying to sabotage my law practice." The petition did not allege any acts of violence or repeat violence by Cardona, as those terms are defined in section 784.046(4)(a)-(b), Florida Statutes (2004), rendering the petition meritless. Cardona responded by filing against Germain a Petition for Injunction for Protection against Repeat Violence (Germain Petition).

A week later Norvell filed a suit for partition of the building and other relief (Partition Action). Germain filed an emergency motion in which he swore that "Norvell is also a convicted felon and Germain has personally observed Norvell handle a loaded pistol in the office."[1]

*618 On June 18, 2004, Germain and Norvell entered into a settlement agreement in the Partition Action. Germain agreed to withdraw the Norvell Petition and to execute an affidavit about the firearm allegation (June 18 Affidavit). The June 18 Affidavit stated: "after some thought, I recall that the pistol was actually in possession of the office paralegal, Rebecca S. Skipper and not Michael C. Norvell." It also stated: "At no time, was the gun ever in Norvell's office or in Norvell's possession" and "[t]hat sometime in 2001 Rebecca S. Skipper removed the gun from the office." Germain signed it under oath.

A few days later, Cardona filed a motion to dismiss the Cardona Petition. The motion also asked the court to award him $30,390 in attorney's fees as a sanction against Germain for filing a frivolous petition. The court held a hearing on the motion. Germain subpoenaed the police officer who took Germain's trespassing complaint, but the court would not allow the officer or Germain to testify. The court did allow Germain to proffer the testimony. The court dismissed the petition, finding that it "does not allege facts supporting an injunction for protection against repeat violence, and the facts proffered by petitioner failed to establish a basis for such an injunction. There was no evidence of violence or imminent fear of violence by respondent toward petitioner."

On July 1, 2004, Norvell paid Germain $140,000 for his one-third share of the building. Two weeks later, the court entered an amended order dismissing the Cardona Petition, denying Germain's motion for reconsideration, and granting Cardona's motion for sanctions. The court found Germain's claims were "so clearly devoid of merit both on the facts and the law as to be completely untenable."

A week later Germain filed a motion to disqualify the judge in the Cardona Petition case. The motion made sworn allegations that the judge should be disqualified, in part, because of a conflict of interest presented by his relationship with Lennon Bowen, an attorney, and Bowen's relationship with Cardona. Two days later he filed a motion for reconsideration of the Cardona Petition's dismissal, arguing the dismissal was improper without an evidentiary hearing. Germain swore the Cardona Petition was not frivolous because "convicted felon Michael C. Norvell's possession of a gun gun [sic] in the office is not frivolous."

Seven months later, in March 2005, Germain again moved the trial court to set aside the order dismissing the Cardona Petition.

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Bluebook (online)
957 So. 2d 613, 2007 WL 1437442, Counsel Stack Legal Research, https://law.counselstack.com/opinion/the-florida-bar-v-germain-fla-2007.