​Entrepreneurs who break up with their business partners could be tied up in years of litigation, following a ruling from a Florida appeals court, some attorneys say.
Florida’s Fourth District Court of Appeals reversed a lower tribunal that dismissed with prejudice a lawsuit suing a travel company executive for breach of fiduciary duty.

The trial court had found arguments from Johnathan Lasko, an operating officer and vice president of Passover FB Inc., weren’t specific enough to defend against his business partner and company president, Harry Taubenfeld. The court decided that allegations Taubenfeld made weren’t supportive to his argument that Lasko had sufficient notice of the specific duty he owed to Passover FB and the connection between him and the damage to the business.
On appeal, the Fourth District rejected Lasko’s argument that he was a former officer who no longer owed a fiduciary duty to Passover FB. This argument was not raised in their motion to dismiss. Nor was it a basis for the trial court’s ruling, according to the decision.

Taubenfeld and Lasko, who served as vice president of Passover FB, were 50% shareholders of the company, which did business under the name of Lasko Kosher Getaways and organized high-end trips at luxury hotels during Passover holidays. There were no shareholder agreements between the two parties, and no bylaws existed for Passover FB, according to the ruling.

Taubenfeld’s complaint— filed by Boca Raton attorney Mark Osherow of Osherow and Donna Greenspan Solomon of Solomon Appeals, Mediation & Arbitration in Fort Lauderdale—also asserted claims against Lasko’s family members who worked for the company or served as his agents. The complaint named Lasko’s father Sam, mother Arlene and brother Avi.
Sam and Arlene held annual Passover events through Lasko family Kosher Tours Inc. However, when they fell into a $2 million debt, Taubenfeld claims he rescued the business by agreeing to become a 50% owner of the new corporation. Passover FB took ownership of all its assets.


In 2017, Taubenfeld and Lasko’s relationship began to diminish, according to the filing. In the same year, American Express acquired a judgment for over $750,000 confirming an arbitration award against Taubenfeld over an unpaid credit card bill for another corporation.
On Dec. 1, 2017, Lasko took over management of Passover FB and made an operational business decision by removing Taubenfeld as president of the company. Taubenfeld then filed the fourth amended complaint as a suit on behalf of Passover FB against Johnathan, Sam, Arlene, Avi and Lasko Getaways for breach of fiduciary duty.
In dismissing the complaint with prejudice, the circuit court found there wasn’t enough reasoning for the actual damage Lasko had caused to Passover FB. In the Wednesday opinion authored by Fourth DCA Judge Robert M. Gross on behalf of Chief Judge Burton C. Connor and Judge Martha Warner, the court reversed the orders of dismissal and remanded the case.
Osherow said to always believe in your case especially when you truly believe you are right.
Greenspan Solomon said, “It is generally more difficult to prevail as the appellant, as we were, than the appellee. Fortunately, we had an excellent trial attorney, which is critical.”

A lesson to be learned 

​Bruce Rogow, of The Law Office of Bruce S. Rogow, is not involved in the case. But Rogow said he agrees with the Fourth District Court of Appeal ruling.
“In the Taubenfeld decision, Judge Gross has taken the bitter herbs of this commercial dispute and taught a brilliant lesson about pleading causes of action for breach of fiduciary duty, conversion and aiding and abetting,” Rogow said. “The decision will be required reading for commercial litigators and a reminder for business partners that an exodus from a business relationship can lead to being enslaved in court proceedings for years.”
Miami attorneys Adam M. Schachter, Gerald E. Greenberg, Freddy Funes and Mikayla Espinosa of Gelber Schachter & Greenberg, who represented the appellees, did not respond to requests for comment by press time.

Anderson v. Am. Gen. Life Ins. Co., 802 Fed. Appx. 548 (11th Cir. 2020) (arbitrator faced with jurisdictional challenge was not required to hear evidence of whether employer breached optional and informal dispute resolution procedure or whether employer’s upper management knew about rigged sales contest used to decide promotion at issue).


Mason v. Midland Funding LLC, 18-14019, 2020 WL 2466370, at *4 (11th Cir. May 13, 2020) (defendant failed to show that plaintiff agreed to arbitrate by assenting to clickwrap agreement that was part of online credit application where evidence did not establish that plaintiff ever received or knew of arbitration agreement).
 
Iglehart v. Mitbank USA, Inc., 285 So. 3d 331 (Fla. 4th DCA 2019) (Co-trustee did not waive right to arbitration under land trust agreement by filing suit under contemporaneous but separate trust management agreement).
4927 Voorhees Rd., LLC v. Tesoriero, 291 So. 3d 668, 673 (Fla. 2d DCA 2020) (arbitration agreement containing improper damages and fees provisions could be severed from arbitration agreement; conflict certified with Novosett v. Arc Villages II, LLC, 189 So. 3d 895 (Fla. 5th DCA 2016)).
 
Hobby Lobby Stores, Inc. v. Cole, 287 So. 3d 1272 (Fla. 5th DCA 2020) (Arbitration agreement was not procedurally unconscionable, even though employee asserted he had a high school education, did not know what arbitration was, and believed he had no choice but to sign it; arbitration agreement’s operative terms were not hidden, minimized, or buried in fine print, there was no evidence that employee could not read the agreement or that corporation pressured, rushed, or coerced him into signing it, and employee did not allege that corporation made false representations to induce him to sign it, or that he asked any questions about the agreement, or that he expressed any confusion about its terms, or that he lacked opportunity to inquire into the agreement’s terms or to enlist help if confused).


Efron v. UBS Fin. Services Inc. of Puerto Rico, 45 Fla. L. Weekly D309 (Fla. 3d DCA Feb. 12, 2020) (trial court erred in confirming $9.7 million arbitration award where panel denied motion for postponement due to withdrawal of counsel, giving no specific reason).


Ciccarello v. Siena Villas at Beach Park Condo. Ass’n, Inc., 45 Fla. L. Weekly D568 (Fla. 2d DCA Mar. 11, 2020) (appellate court lacks jurisdiction to review arbitration award in absence of timely-filed motion for trial de novo in circuit court pursuant to section 718.1255(4)(k), Fla. Stat.).
 
Doe v. Natt, 45 Fla. L. Weekly D712 (Fla. 2d DCA Mar. 25, 2020) (clickwrap agreement stating that any arbitration would be administered by American Arbitration Association (AAA) in accordance with its rules did not constitute clear and unmistakable evidence of parties’ assent; agreement was silent on issue of arbitrability, agreement’s reference to AAA rules was broad, nonspecific, and cursory, and AAA rule that arbitrator shall have power to rule on scope or validity of arbitration agreement or arbitrability of any claim conferred adjudicative power on arbitrator but did not make that power exclusive or contractually remove adjudicative power from court).


H Greg Auto Pompano, Inc. v. Raskin, 45 Fla. L. Weekly D702 (Fla. 3d DCA Mar. 25, 2020) (although section 682.03, Florida Statutes, requires a stay while motion to compel arbitration is pending, the statutory language does not mandate a stay during appeal of denial of motion to compel; noting difference with Eleventh Circuit in Blinco v. Green Tree Servs., LLC, 366 F.3d 1249, 1253 (11th Cir. 2004) (litigation should be stayed so long as appeal is non-frivolous)).
City of Hollywood v. Perrin, 45 Fla. L. Weekly D694 (Fla. 4th DCA Mar. 25, 2020) (employee’s complaint that city erroneously calculated his longevity and seniority contained arguable allegation of unfair labor practice, over which Public Employees Relations Commission (PERC) had exclusive jurisdiction, and thus trial court could not compel arbitration).


Timmons v. Lake City Golf, LLC, 45 Fla. L. Weekly D797 (Fla. 1st DCA Apr. 7, 2020) (final judgment provided former partner with sole recourse process contemplated in arbitration, and thus was not flawed for failing to give him right of execution and final process).


CWELT-2008 Series 1045 LLC v. Park Gardens Ass’n, Inc., 45 Fla. L. Weekly D1001 (Fla. 3d DCA Apr. 29, 2020) (plaintiff waived right to demand arbitration on counterclaim that was “flip side” of claim it had actively litigated).



Donna Greenspan Solomon is one of three attorneys certified by The Florida Bar as both Business Litigator and Appellate Specialist.  Donna is a Member of the AAA’s Roster of Arbitrators (Commercial Panel).  She is a FINRA-Approved and Florida Supreme Court Qualified Arbitrator.  She is also a Certified Circuit, Appellate, and Family Mediator.  Donna is a Member of the Florida Supreme Court Committee on Standard Jury Instructions—Contract and Business Cases.  Donna can be reached at (561) 762-9932 or Donna@SolomonAppeals.com or by visiting www.solomonappeals.com.

Attorney John Carter was sentenced to 30 days in jail on contempt charges after a back-and-forth with County
Judge Marni Bryson during a DUI-case hearing.

WEST PALM BEACH — Two years after Palm Beach County-based lawyer John Carter asked a judge to disqualify herself from the contempt case against him, an appeals court ruled in his favor this month, according to court documents.
On July 1, Circuit Judges Cheryl Caracuzzo, Rosemarie Scher and Scott Suskauer ruled that County Judge Marni Bryson erred when she failed to recuse herself
given the history of the case, as well as agreed she wrongfully ordered Carter undergo a mental-health evaluation and refused to set a bond for him.
Because the case originated in county court, the appeal was handled by the circuit court.
Donna Greenspan Solomon, the attorney who represented Carter in his appeal, said by email Monday the judges “rendered a very well-reasoned decision and we are pleased with the result.”
“The Court found the judge improperly failed to recuse herself in view of the level of animosity between her and Mr. Carter, which was sufficient to give Mr. Carter a reasonable fear that he would not receive a fair hearing before her,” Solomon wrote.
She said Bryson wrongfully jailed Carter twice, once after sentencing him on contempt charges — to which the circuit court released him the next day on appeal — and then again for ordering a mental-health evaluation where he was taken into custody.
 
Attorney John Carter was sentenced to 30 days in jail on
contempt charges after a back-and-forth with County
Judge Marni Bryson during a DUI-case hearing.
WEST PALM BEACH — Two years after Palm Beach County-based lawyer John Carter asked a judge to disqualify herself from the contempt case against him, an appeals court ruled in his favor this month, according to court documents.
On July 1, Circuit Judges Cheryl Caracuzzo, Rosemarie Scher and Scott Suskauer ruled that County Judge Marni Bryson erred when she failed to recuse herself given the history of the case, as well as agreed she wrongfully ordered Carter undergo a mental-health evaluation and refused to set a bond for him.
Because the case originated in county court, the appeal was handled by the circuit court.
Donna Greenspan Solomon, the attorney who represented Carter in his appeal, said by email Monday the judges “rendered a very well-reasoned decision and we are pleased with the result.”
“The Court found the judge improperly failed to recuse herself in view of the level of animosity between her and Mr. Carter, which was sufficient to give Mr. Carter a reasonable fear that he would not receive a fair hearing before her,” Solomon wrote.
She said Bryson wrongfully jailed Carter twice, once after sentencing him on contempt charges — to which the circuit court released him the next day on appeal — and then again for ordering a mental-health evaluation where he was taken into custody.
stated her basis for the recusal was that she ‘can’t take (Carter) seriously,’ ” they wrote.
Solomon said Carter, who has a hearing July 17, will be asking the new judge assigned to the case, County Judge Robert Panse, to dismiss the charges against him.