ANTJONY V. ABREU & LAVIELLE

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State: Florida

Court: Florida Third District Court

Docket No: 09-2637

Case Date: 12/15/2010

Preview:Third District Court of Appeal
State of Florida, July Term, A.D. 2010
Opinion filed December 15, 2010. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D09-2637 Lower Tribunal No. 08-79858 ________________

Andrew J. Anthony,
Appellant, vs.

Perez-Abreu & Martin-Lavielle, P.A., etc.,
Appellees.

An Appeal from the Circuit Court for Miami-Dade County, Maxine Cohen Lando, Judge. Andrew J. Anthony and Bradley A. Silverman, for appellant. Cole Scott & Kissane and Scott A. Cole and Kristen A. Tajak, for appellees. Before SUAREZ, ROTHENBERG, and SALTER, JJ. SUAREZ, J. Andrew J. Anthony appeals from a final order dismissing his complaint with prejudice. The only issue raised on appeal was whether the trial court correctly

found that the complaint was not filed within the requisite four-year statute of limitations. We find that the complaint was timely filed and therefore reverse. In 2004, Raquel Anthony, the appellant's now former wife, worked in his law office, The Law Offices of Anthony and Associates, P.A. That year, she sought divorce advice from Javier Perez-Abreu and his law firm, Perez-Abreu & Martin Lavielle, P.A. ["PAML"]. According to Anthony's Complaint, Javier Perez-Abreu and Andy Acosta, both attorneys in PAML, and Raquel Anthony allegedly conspired to wrongfully obtain the business and financial records from Anthony's firm for use during the divorce proceeding. The parties agree that sometime in March, 2004, Ms. Anthony allegedly wrongfully took records from Anthony's law firm. Early in the dissolution proceedings, Anthony became aware that the documents had been taken. He raised the issue of Ms. Anthony's wrongful taking of his business records throughout that litigation. The dissolution litigation settled during mediation. PAML claimed that as a condition to any settlement agreement, PAML insisted upon Anthony signing a release of attorney Perez-Abreu and PAML, relating to any and all claims that he may have against them. Anthony denied he agreed to release PAML. The issue was brought before the trial court which, on January 30, 2006, ordered Anthony to sign the settlement agreement which included his release of PAML. Anthony signed the release as ordered, but timely appealed from that order and

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on January 3, 2007, this Court reversed, holding as a matter of law that no lawyer, other than Perez-Abreu in his individual capacity, was to be released, and on remand that the parties were to execute Anthony's proposed settlement agreement that did not include a release of PAML. Anthony v. Anthony, 949 So. 2d 226 (Fla. 3d DCA 2007). In December 2008, Anthony filed the present complaint for civil conspiracy against PAML and its attorney Andy Acosta, alleging that PAML, along with Acosta, concocted a plan to "wrongfully" obtain Anthony's business records. PAML moved to dismiss, arguing that the four-year statute of limitation for civil conspiracy had run. The trial court heard argument and granted the motion without prejudice, giving Anthony fifteen days to amend his Complaint to address the statute of limitations issue. The order stated that if Anthony declined to amend, the court would dismiss the cause with prejudice. Anthony did not amend, and the trial court issued a final order dismissing the cause with prejudice. This appeal followed. The appellees incorrectly argued to the trial court and on appeal that a cause of action for civil conspiracy1 accrues with the first known overt act in furtherance

A civil conspiracy requires: (a) an agreement between two or more parties, (b) to do an unlawful act or to do a lawful act by unlawful means, (c) the doing of some overt act in pursuance of the conspiracy, and (d) damage to plaintiff as a result of the acts done under the conspiracy." Raimi v. Furlong, 702 So. 2d 1273, 1284 (Fla. 3d DCA 1997). 3

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of the conspiracy. They argue that this occurred when the ex-wife wrongfully took the business records in March 2004, or, in the alternative, when Anthony discovered the theft in September 2004, and thus the four-year statute of limitation had expired by the time the Complaint was filed in December 2008. The trial court followed this reasoning and erroneously focused on the date Anthony discovered that his ex-wife took the documents as the date that the statute of limitation began to run. But the wrongful taking of the business records is but one element of the cause of action. The cause of action does not accrue and become actionable until the final element is satisfied which, in this case, is damages.

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