Motion to Strike Def's Mtn Summ Jgmt

IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT OF FLORIDA IN AND FOR MIAMI-DADE COUNTY

GENERAL JURISDICTION DIVISION

NORMAN LANSON, CASE NO.: 99-21062 CA 15
MERYL LANSON, and
BARON’S STORES, INC., a Florida
Corporation,

Plaintiffs,

vs.

RONALD C. KOPPLOW, ESQ.,
KOPPLOW & FLYNN, P.A., a Florida
Professional Association, MARK
COOPER, ESQ., COOPER & WOLFE, P.A.,
a Florida Professional Association,
SONYA L. SALKIN, ESQ., and
MALNIK & SALKIN, P.A., a Florida
Professional Association,

Defendants.
_______________________________________/

PLAINTIFFS’ JOINT MOTION TO STRIKE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AS TO ALL CLAIMS BROUGHT BY “BARON’S
STORES, INC.”… FILED FEBRUARY 8, 2008, FOR FRAUD ON THE COURT

COMES NOW, the Plaintiffs, Baron’s Stores, Inc., Norman Lanson, by and through their undersigned counsel, and Meryl Lanson, Pro Se, files their Motion to Strike the Defendants’ Motion for Summary Judgment as to all Claims Brought by “Baron’s Stores, Inc.”… filed on February 8, 2008, for Fraud on the Court, and further states:
1. Attached as Exhibit “1” is a copy of the Defendants’ Motion for Summary Judgment as to all Claims Brought by “Baron’s Stores, Inc.”… .

2. Attached to the Defendants’ Motion as Exhibit “B”, is the First Amended Joint Plan of Liquidation of Debtor and Committee, and as Exhibit “D”, is the First Amended Joint Disclosure Statement of Debtor and Committee. Both Exhibits “B and D” have been modified, altered, mutilated, and/or falsified, as they are not identical copies of the original documents signed by Norman Lanson, nor authorized by the Plaintiffs in the Bankruptcy Court.

3. The first time the Plaintiffs became aware of the fraudulent documents was on February 4, 2008, when the Defendants filed their Motion for Summary Judgment. The only Plan of Liquidation and Disclosure Statement known to the Plaintiffs were the original Plan and Disclosure Statements dated July, 1998. (Exhibit “2 and 3”)

4. The Defendants are attempting to use the fraudulent documents, Exhibits “1B” and “1D”, as legal support for their Motion for Summary Judgment. More specifically, at Page 7 of the Motion, the Defendants present the following argument:
C. The Liquidating Plan Did Not Provide for the Retention and Enforcement of the Instant Legal Malpractice Claims By New Baron’s

The Confirmed Liquidating Plan filed by Old Baron’s and the Committee did not provide for the retention or enforcement of the instant legal malpractice claims by New Baron’s (or by any other person or entity).

1. The Liquidating Plan Does Not Even Disclose The Existence of the Claims

Neither the Liquidating Plan, the accompanying Disclosure Statement , nor the confirmation Order even mentions the possible existence of these claims, let alone their “retention and enforcement.”

The Liquidating Plan does contain the following generic provision in Article IX:

Pursuant to Section 1123(b)(3) of the Bankruptcy Code, the post-Confirmation Debtor shall retain and may enforce any and all claims of the Debtor and/or the Debtor, as debtor-in-possession, including the Morrison Litigation Rights and other Bankruptcy Claims , except such claims as are waived, relinquished or released in accordance with the Plan.

This general language -- which does not put creditors on notice of the nature, value, or even the existence of the subject legal malpractice claims, -- is insufficient, as a matter of law, to preserve the claims asserted in this action by New Baron’s. (Exhibit “1”)

The Defendants’ are attempting to use a fraudulent document to gain an unfair advantage in this litigation, which warrants sanctions.

5. The Plaintiffs strongly disagree with Defendants’ assertions that Plaintiff’s did not properly preserve their malpractice claim, as the only Joint Plan of Liquidation and Disclosure ever signed by the Plaintiff, Norman Lanson, included negotiated and stipulated language under Article 16 - Exculpation, and Section X of the Joint Disclosure Statement. (See Exhibits “2 and 3”) Article 16 was a negotiated stipulation agreed to by the parties that provided notice of future litigation such as this instant legal malpractice action. (See Exhibit 4 - Affidavit of Meryl Lanson, and Exhibit “5” - Affidavit of Norman Lanson)

6. Clearly, the stipulated Exculpation Clause/Reservation of Rights Clause is specifically directed to claims against the attorneys.
“for any act or omission in connection with, or arising out of, the Debtor’s bankruptcy case, the Plan, including without limitation, the negotiation, formulation, preparation, confirmation, or consummation of the Plan, the Disclosure Statement, any sale of assets pursuant to the Plan, or any contract, instrument, release or other agreement, document, or election made, created or entered into in connection with the Debtor’s bankruptcy case, the Plan, any sale of assets pursuant to the Plan or the funds to be distributed under the plan, and/or the administration of the Debtor’s bankruptcy case.” (Exhibit “2 - 3”)

7. On a closer look at the Defendants’ Exhibit “1B” and Exhibit “1D”, it is easy to tell, for even a lay person, that the document has been altered or modified as follows:

there are duplicative page numbers, such as two pages numbered 24 and 25; the first page 25 stops in the middle of a sentence and the remaining page is blank; and a variety of the dates at the footer of the documents are inconsistent, evidencing an altered document. (Exhibit #1-B and #1-D)

8. The Plaintiffs have hired an Independent Expert Fraud Examiner, who submitted his Verified Statement, that in his professional opinion, the First Amended Joint Plan of Liquidation of Debtor and Committee and the First Amended Joint Disclosure Statement of Debtor and Creditors Committee were both altered, modified, falsified and/or forged documents. (Exhibit “6A” - Expert’s opinion)

Memorandum of Law in support of Plaintiffs’ Motion to Strike Defendants’ Motion
for Summary Judgment as to all Claims Brought by “Baron’s Stores, Inc.”…

“Bankruptcy petition is a legal nullity if the signature on the petition is forged, even if the party forging the signature had a Power of Attorney,…” In re Washington, 297 B.R. 662 (S.D. Fla. 2003); In re Brown, 163 B.R. 596, 598 (N.D. Fla. 1993); In re Harrison, 158 B.R. 246, 248 (M.D. Fla. 1993).
Likewise in Baron’s, Norman Lanson, the Officer of the Debtor, never signed the First Amended Plan of Liquidation and Disclosure Statement filed in the bankruptcy court. Therefore, it is a legal nullity as it lacked any legal authority to bind the Debtor. A false document cannot be relied on for any purpose whatsoever. No one can legitimize a falsified document by a signature.
The Plaintiffs do not know at whose hand(s) the documents were falsified but the Court can only surmise from the facts and the circumstances that the only parties that could have falsified the documents were the attorneys who had care, custody and control of the documents submitted to the court. Therefore, it is incumbent upon this Court to allow discovery and conduct an investigation to determine who the responsible party or parties were and fashion a remedy appropriate to the situation. The Defendants have “unclean” hands and should not be allowed to benefit from a forged, fraudulent document. “It should be noted that a litigant’s destruction or alteration of evidence harmful to that litigant may naturally give rise to an unfavorable inference against the litigant. As Judge Learned Hand observed: ‘When a party is once found to be fabricating or suppressing documents, the natural, indeed, the inevitable conclusion is that he has something to conceal, and is conscious of guilt.’ ” Warner Barnes & Co. v. Kokosai Kisen Kabushiki Kaisha, 102 F.2d 450, 453 (2nd Cir.) modified 103 F.2d 430 (2d Cir. 1939).; Trammel v. Bass, 672 So.2d 78 (1st DCA 1996)
“Federal [and State] Courts have the inherent power to dismiss an action for misconduct that abuses the judicial process and threatens the integrity of the process - including misconduct unrelated to the merits of the case.” Vargas v. Peltz, 901 F.Supp 1572 (S.D. Fla. 1995); Link v. Wabash Railroad Co., 370 U.S. 626, 633, 82 S.Ct 1386, 1390, 8 L.Ed.2d 734 (1962).
“Litigants must know that the courts are not open to persons who would seek justice by fraudulent means.” Vargas, supra.
“Dismissal is appropriate where:
a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party’s claim or defense. ….
See Aoude, 892 F.2d at 1118 (cause of action dismissed for “fraud on [sic] the court” where plaintiff attached a bogus agreement [sic] to the complaint). The undisputed evidence presented to the Court establishes that such a fraud has been perpetrated here by Plaintiff and her husband Gerardo Vargas justifying imposition of the sanction of dismissal with prejudice and related sanctions.”

Fraudulent means a fraud upon the court was perpetrated and accordingly, the action was dismissed with prejudice.
In McDowell v. Seaboard Farms of Athens, Inc., Not reported in F.Supp., 1996 WL 684140 (M.D.Fla.), the Court held:
“A party commits “fraud upon the court” when clear and convincing evidence demonstrates that

a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party’s claim or defense.

Vargas, 901 F.Supp at 1579 (citing Aoude, 892 F.2d at 1118)

When a party fabricates evidence purporting to substantiate its claims, Federal case law is well established that dismissal is appropriate. See Vargas 901 F.Supp. at 1581; Aoude, 892 F.2d at 1118; Pope, 138 F.R.D. at 682-83 (involuntary dismissal of the case because plaintiff submitted a fabricated document); TeleVideo Systems, Inc. v. Heidenthal, 826 F.2d 915, 917 (9th Cir. 1987) (default entered as a result of defendant’s elaborate scheme involving perjury designed to deceive the court); Sun World, 144 F.R.D. at 390 (default entered because plaintiff submitted false document and committed perjury in furtherance of the fraud on the court); Eppes v. Snowden, 656 F.Supp. 1267, 1279 (E.D. Ky. 1986) (as a result of defendant’s committing fraud on the court by submitting “backdated” letters, defendant’s answer and counterclaim were stricken.)”

Striking Defendants’ Motion for Summary Judgment, as well as striking
Defendants’ Answer and Affirmative Defenses is a proper remedy.

Defendants, as officers of the Court, knowingly submitted a forged or altered document to the Court, which warrants striking the Defendants’ pleadings. Trammel v. Bass, 672 So.2d 78 (1st DCA 1996).
In Trammel, the defendants attached a video tape as support for their motion for summary judgment, but excluded a critical portion of the video tape that directly contradicted the defendant’s position and deposition testimony. As a sanction, the Plaintiff, Bass, sought to have the defendant, Trammel’s answer stricken and a default judgment entered against him.
The defendant Trammel withdrew his motion for summary judgment and the cause proceeded on plaintiff’s hearing on sanctions. Eventually, the trial court struck defendant’s answer and affirmative defenses and entered a default.
On appeal, the appellate court found that a trial court has inherent authority to impose severe sanctions when fraud has been perpetrated on the court. (Id. Pg. 8) Tri-Star Investments, Inc. v. Miele, 407 So.2d 292 (Fla. 2nd DCA 1981); Harold v. Computer Components International, Inc., 252 so.2d 576 (Fla. 4th DCA 1971).
The appellate court in Trammel affirmed the trial court’s sanction in striking the defendant’s answer and affirmative defenses and entering a default judgment upon the following:
“The most severe in the spectrum of sanctions… must be available… in appropriate case, not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a detriment. A drastic sanction that denies the availability of the court’s process is therefore appropriate to one who defiles the judicial system by committing a fraud upon the court.” Aoude v. Mobil Oil Corp., 892 F.2d 1115 (Fla. 1st Circ. 1989) (claim dismissed for fraud upon the court where plaintiff attached a bogus agreement [sic] to the complaint.)

What is beyond comprehension is that these three defendants, officers of the court, being represented by officers of the court, did not immediately withdraw their Motion for Summary Judgment upon notification from a Forensic Expert that the documents they rely upon to support their Summary Judgment are falsified.

Florida Bar Rule 4-3.3 Candor Toward the Tribunal states:

False evidence: Upon ascertaining that material evidence is false, the lawyer should seek to persuade the client that the evidence should not be offered, or,if it has been offered that its false character should immediately be disclosed. If the persuasion is ineffective, the lawyer must take remedial measures. If necessary to rectify the situation, an advocate must disclose the existence of the client’s deception to the court. Such a disclosure can result in grave consequences to the client, including not only a sense of betrayal but also loss of the case and perhaps a prosecution for perjury. But the alternative is that the lawyer cooperate in deceiving the court, thereby subverting the truth-finding process that the adversary system is designed to implement. If perjured testimony or false evidence has been offered, the advocate’s proper course ordinarily is to remonstrate with the client confidentially. If that fails, the advocate should seek to withdraw if that will remedy the situation. If withdrawal will not remedy the situation or is impossible and the advocate determines that disclosure is the only measure that will avert a fraud on the court the advocate
should make disclosure to the court.

Rule 4-1.2(d) prohibits the lawyer from assisting a client in conduct that the lawyer knows or reasonably should know is criminal or fraudulent.

Rule 4-3.4(b) prohibits a lawyer from fabricating evidence or assisting a witness to testify falsely.

Rule 4-8.4(a) prohibits the lawyer from violating the Rules of Professional Conduct or knowingly assisting another to do so.

Rule 4-8.4(b) prohibits a lawyer from committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer.

Rule 4-8.4(c) prohibits a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.

Rule 4-8.4(d) prohibits a lawyer from engaging in conduct that is prejudicial to the administration of justice.

Rule 4-1.6(b) requires a lawyer to reveal information to the extent the lawyer reasonably believes necessary to prevent a client from committing a crime.

Rule 4-3.3(a)(2) requires a lawyer to reveal a material fact to the tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client.

Rule 4-3.3(a)(4) prohibits a lawyer from offering false evidence and requires the lawyer to take reasonable remedial measures when false material evidence has been offered.

Rule 4-1.16 prohibits a lawyer from representing a client if the representation will result in a violation of the Rules of Professional Conduct or law and permits the lawyer to withdraw from representation if the client persists in a course of action that the lawyer reasonably believes is criminal or fraudulent or repugnant or imprudent.


This egregious conduct is all the more heinous because the perpetrators are “officers of the court.” Leo’s Gulf Liquors v. Lakhani, 802 So.2d 337 (Fla.App. Dist.3 09/05/2001).

In Leo’s Gulf Liquors, the Court, stated in its ANALYSIS:

Plaintiff refers us to trial manuals that teach lawyers to instruct deponents to provide abbreviated responses and not to volunteer any information beyond what is specifically requested. We stand firm upon our precedent, which categorically rejects this type of gamesmanship during pretrial or trial proceedings when
such tactics ultimately serve to subvert the truth. Witnesses who
give sworn testimony by way of interrogatories, at depositions, pretrial hearings and trial, swear or affirm to tell the truth, the whole truth, and nothing but the truth. We expect and will settle for nothing less. Lawyers who advise their clients and/or witnesses to mince words, hold back on necessary clarifications, or otherwise obstruct the truth-finding process, do so at their own, and their clients' peril.

Canon 3D(2) of the Code of Judicial Conduct reads as follows: "A judge who receives information or has actual knowledge that substantial likelihood exists that a lawyer has committed a violation of the Rules Regulating The Florida Bar shall take appropriate action." Based on our review of this record,
we believe that there is substantial likelihood that Roy Lustig has violated those rules and therefore we refer him to The Florida Bar for a determination as to whether he should be professionally disciplined for his behavior in this case. We further refer this case to the State Attorney for the Eleventh Judicial
Circuit of Florida for a determination of whether charges of perjury should be brought against both Arturo Munder and Roy Lustig. Leo’s Gulf Liquors v. Lakhani, 802 So.2d 337 (Fla.App. Dist.3 09/05/2001.

These officers of the court continue engaging in a pattern of utter disrespect for the court, and in total disregard for their ethical responsibilities pursuant to the Rules Regulating The Florida Bar.
This Court should not only strike the Defendants’ Motion for Summary Judgment, it should also strike Defendants’ Answer and Affirmative Defenses and enter a default; and, to allow the Plaintiffs to pursue their trial on damages.

“Litigants must know that the courts are not open to persons who would seek justice by fraudulent means.” Vargas, supra. There is no one who should be more keenly aware of that than “officers of the court.”

At the April 22, 2008 hearing, this Court was troubled by the fact that this case has been ongoing for nine years and that nine attorneys withdrew. This Court should first understand the difficulty of any Plaintiff obtaining and maintaining representation in a legal malpractice action, generally. When you add the factor that this case involves three high profiled, seasoned, connected attorneys, one being a Region 21 United States Panel 7 Trustee, as defendants, represented by high profiled, connected firms, one being a Special Counsel for the Judicial Qualifications Commission, and one firm’s senior partner appointed on April 24, 2008 by Governor Charlie Crist to the Eleventh Circuit Judicial Nominating Commission, this Court should completely understand and express sympathy for what the Plaintiffs have had to endure during these past nine years at the hands of those who pledge to uphold the law but instead protect the wrongdoing of their brethren.

A clear manifest injustice will occur if the Defendants, who are officers of the Court, and now their counsel, are allowed to proceed with a continuation of their dishonest conduct in presenting fraudulent documents in order to further the fraud on the Court and to give Defendants an unfair advantage in this litigation.

WHEREFORE, the Plaintiffs respectfully request this Court for the following relief:
a. to hold an evidentiary hearing and specific discovery on this fraud on the Court;
b. to strike the Defendants’ Motion for Summary Judgment;
c. to strike the Defendants’ Answer and Affirmative Defenses;
d. to proceed to trial on damages only;
e. to grant attorneys’ fees and costs to the Plaintiffs; and
f. for other and further relief the Court deems appropriate.










CERTIFICATE OF SERVICE

I HEREBY CERTIFY that true and exact copies of the foregoing were forwarded by electronic mail, facsimile and/or U.S. Mail on June 12, 2008, to all parties on the attached Service List.



___________________________
Mary Alice Gwynn, Esq.
Fla. Bar. No.: 879584
805 George Bush Boulevard
Delray Beach, Florida 33483
(561) 330-0633



____________________________

John B. Thompson, Esq.
Fla. Bar No.: 231665
1172 South Dixie Highway, Suite 111
Coral Gables, FL 33146
(305) 666-4366




____________________________
Meryl M. Lanson, Pro Se















SERVICE LIST




Robert M. Klein, Esq.
Stephens Lynn Klein, et al.
9130 South Dadeland Boulevard
Penthouse II
Miami, Florida 33156

Charles W. Throckmorton, Esq.
Kozyak Tropin & Throckmorton
2525 Ponce de Leon Boulevard
9th Floor
Coral Gables, Florida 33134

Lewis N. Jack, Jr., Esq.
Joseph, Jack & Miranda, P.A.
Post Office Box 330519
Miami, Florida 33233

Lauri Waldman Ross, Esq.
Ross & Girten
Two Datran Center, Suite 1612
9130 South Dadeland Boulevard
Miami, Florida 33156