Michael Gerstein v. International Asset Value Group, LLC, etc., Stuart Schulman and Aaron Schulman

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
MICHAEL GERSTEIN,
Appellant,
v.
INTERNATIONAL ASSET VALUE GROUP, LLC, A Florida Limited
Liability Company, STUART SCHULMAN and AARON SCHULMAN,
Appellees.
No. 4D14-4379
[June 15, 2016]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Peter D. Blanc, Judge; L.T. Case No.
502009CA023969XXXXMB.
G. William Allen, Jr., Fort Lauderdale, for appellant.
Daniel A. Bushell of Bushell Appellate Law, P.A., Fort Lauderdale, for
appellees.
CIKLIN, C.J.
Michael Gerstein timely appeals an order dismissing his fourth
amended complaint with prejudice, entered in favor of International
Asset Value Group, LLC, Stuart Schulman, and Aaron Schulman (“the
defendants”). Because the trial court afforded the plaintiff numerous
attempts to state a viable cause of action, and each time the plaintiff
failed to do so, we affirm.
In July 2009, Gerstein filed a twenty-page complaint against the
defendants. Paragraphs one through eighteen contained confusing
allegations surrounding certain business relationships of the parties.
The complaint alleged seven different counts, each of which incorporated
paragraphs one through eighteen without providing an explanation as to
the manner in which each allegation pertained to the claims.
The defendants moved to dismiss the complaint, alleging it failed to
state a cause of action. Following a hearing, the trial court granted the
motion and directed Gerstein to file an amended complaint within twenty
days.
Gerstein filed an amended complaint. The defendants again moved to
dismiss for failure to state a legally cognizable claim. The motion was set
for hearing and an agreed order was entered granting the motion and
permitting the plaintiff to file a second amended complaint within
twenty-five days.
A second amended complaint with even more allegations was filed and
was once again followed by a motion to dismiss. This resulted in still
another order granting leave to amend and accordingly, a third amended
complaint was filed in January 2011. The defendants once again filed a
motion to dismiss for failure to state a cause of action and failure to join
indispensable parties.
Because over a year passed with no record activity, the trial court sua
sponte set a status conference. After the status conference, the trial
court entered an order granting Gerstein twenty days to move to file a
fourth amended complaint.
The fourth amended complaint was deemed filed by order dated
October 12, 2012. The defendants moved to dismiss the fourth amended
complaint in January 2013 for failure to state a cause of action, lack of
standing, failure to join indispensable parties, and failure to comply with
well-established rules of pleading.
A year and a half later, after no further record activity, a notice of lack
of prosecution was issued by the court. The motion to dismiss was
heard on October 20, 2014. At the hearing on the motion to dismiss, the
trial court recognized that the facts as alleged by Gerstein might be
complex, but patiently explained that the causes of action are not
cognizable from the complaint:
It’s very confusing. I spent probably over an hour trying to
read through it and understand it and you seem to mix
causes of action.
....
You have allegations where you talk about defamation where
it kind of reads like a tortious interference claim, and you’ve
talked about some defamatory comments in Paragraphs 1
through 33, which you incorporate in all of these, but I just
had a very, very difficult time sorting out the relevant facts
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from the irrelevant facts to determine what is supporting the
different causes of action.
....
[T]here is that quote in [Barrett v. City of Margate, 743 So. 2d
1160, 1163 (Fla. 4th DCA 1999)] that says, “It’s not
permissible for any litigant to submit a disorganized
assortment of allegations and argument in hope that a legal
premise will materialize on its own.”
....
I understand what you’re saying, that these gentlemen
apparently played fast and loose with the rules of contracts
and any legal niceties that would have helped them clearly
define what was going on here, but my problem is I just – I
don’t understand the causes of action and I don’t think it’s
appropriate for me or for the party answering to have to try
and sort it out and figure it out.
....
I am going to dismiss with prejudice, but one of the factors I
am considering is the fact that for eighteen months, we’ve
had what I perceive to be a defective complaint hanging out
there with no activity, no effort to move it forward, no effort
to improve it, correct it, whatever needed to be done. . . .
But based upon the problems with the complaint, not only
those that I have identified and that [defense counsel] has
identified, but numerous other problems that result in my
inability to find the causes of action within it, I think that
the dismissal with prejudice is appropriate[.]
On appeal, Gerstein argues that the trial court abused its discretion
in dismissing the complaint with prejudice because he contended that he
did not exhibit a “repeated refusal to comply with the rules of pleading.”
For reasons glaringly revealed in the record, we disagree.
“A trial court’s determination on a motion to dismiss is reviewed de
novo.” Visor v. Buhl, 760 So. 2d 274, 275 (Fla. 4th DCA 2000). This
court has reviewed a trial court’s decision to dismiss a case with
prejudice after multiple attempts at amendment for abuse of discretion.
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See Barrett v. City of Margate, 743 So. 2d 1160, 1162 (Fla. 4th DCA
1999).
“Dismissing an action with prejudice due to defective pleading is not
proper unless the plaintiff has been given an opportunity to amend.” Id.“Although there is no magical number of amendments which are allowed,
dismissal of a complaint that is before the court on a third attempt at
proper pleading is generally not an abuse of discretion.” Id. “There is
simply a point in litigation when defendants are entitled to be relieved
from the time, effort, energy, and expense of defending themselves
against seemingly vexatious claims.” Kohn v. City of Miami Beach, 611
So. 2d 538, 539 (Fla. 3d DCA 1992) (citation omitted) (affirming dismissal
with prejudice after four unsuccessful attempts to amend pleading to
state a cause of action).
All of the prior versions of the complaint, now including the fourth
amended complaint, are byzantine at best with no coherence whatsoever
to the stated claims. Prior to the dismissal with prejudice, four separate
orders dismissing the complaint with leave to amend were entered.
Gerstein thus had four opportunities to amend his complaint to state a
cause of action, yet failed to do so each time. Accordingly, the trial court
did not err in dismissing the complaint with prejudice. No litigant
should ever be required to endure this type of endless and vexatious
litigation. Our system demands nothing less.
Gerstein next argues that the trial court improperly dismissed the
case due to a lack of record activity. However, the record makes it clear
that the inactivity was merely one factor considered, and because the
court properly dismissed the case on the basis that the complaint had
been unfruitfully amended four times, it is irrelevant whether the trial
court considered record inactivity.
Consequently, we affirm.
Affirmed.
TAYLOR and LEVINE, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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