Daily Business Review: Litigation Departments of the Year — Small Firms

By Catherine Wilson

Daily Business Review

The Daily Business Review is recognizing litigation departments at small law firms with fewer than 70 attorneys in Florida for their powerhouse practices as part of the annual Professional Excellence Awards.

Many firms have carved out courtroom specialties serving major clients and government agencies, and a select few have been chosen for their noteworthy litigation achievements in 2018.

Awards will be presented to the honorees at a recognition event set May 23 at the Rusty Pelican in Miami.

REAL ESTATE-SMALL FIRMS: KLUGER KAPLAN

The 10-year-old Kluger Kaplan litigation boutique distinguished itself in an assortment of hypertechnical real estate cases in 2018.

When the joint developers of the 19-unit boutique condominium at 300 Collins Ave. fought for control of the five-story building in Miami Beach’s resurrected South of Fifth neighborhood, Kluger Kaplan attorney Marko Cerenko succeeded in enforcing a buy-sell reverse option for his client, PSB Collins LLC, led by the Goldman Sachs’ youngest partner, Dhruv Piplani. Developer Jason Halpern’s JMH Development refused to surrender the property until Miami-Dade Circuit Judge William Thomas ruled for PSB last October.

Kluger Kaplan’s Alan Kluger and Josh Rubens, along with Todd Legon of Legon Fodiman, represented the minority owner of Miami Beach’s Seagull Hotel in obtaining a forced partition of the property and the $31 million sale of the beachfront hotel in January 2018 after 14 months of litigation.

The Third District Court of Appeal last August affirmed a decision in favor of Florida Pritikin Center LLC and its long-term lease at the Trump National Doral Miami golf resort. Kluger and Philippe Lieberman maintained soon-to-be President Donald Trump wrongly tried to force the center out of its leased space and out of business.

The appellate court last June also affirmed a decision favoring the sellers represented by Kluger and Ashley Frankel, along with Scott Kravetz of Duane Morris, in a $2.8 million home sale contract. The decision strictly upheld the termination provisions of the Florida Bar’s standard contract for real estate home purchases.

The founders of the 28-attorney Miami law firm sought to build a strong niche practice that would complement rather than compete with full-service firms. In the process, the firm has turned some previous adversaries into clients.

The Real Deal: JMH Development must turn over remaining interest in 300 Collins: judge

The Real Deal features Kluger Kaplan’s recent win on behalf of PSB Collins LLC.  

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A judge has ordered Jason Halpern’s JMH Development to turn over its remaining interest in Three Hundred Collins to its silent partner, amid ongoing litigation.

The five-story, 19-unit boutique condo at 300 Collins Avenue in Miami Beach’s South of Fifth neighborhood was completed this summer, and has just one unsold unit remaining: Penthouse 2 priced at $5.3 million. JMH must turn over that unit and any cash in the bank to its partner PSB Collins LLC, led by Dhruv Piplani, according to an order signed by Miami-Dade Circuit Judge William Thomas.

Piplani’s attorney Marko Cerenko said Piplani’s entity is also entitled to the cash proceeds of the $1.6 million sale of unit 3-A, which was purchased just before the lawsuit went to trial last week. The value of the total owed to Piplani’s entity is estimated at $6 million to $7 million, said Cerenko, a partner at Miami-based Kluger, Kaplan, Silverman, Katzen & Levine…

Continue reading in The Real Deal. 

Anatomy of a Case: Kluger Kaplan Sets New Standard for Upholding Residential Real Estate Contract

Case: Diaz v. Kosch, Third District Court of Appeal of The State of Florida

Thanks to the arguments of Kluger Kaplan attorneys, Alan Kluger and Ashley Frankel, along with Scott Kravetz of Duane Morris, the Third District Court of Appeal of The State of Florida recently set a new standard for strictly upholding the provisions of the Florida Bar’s standard contract for real estate home purchases.

AJK High ResolutionBackground:

The case began in 2012 with a real estate transaction gone bad.  Coral Gables homeowners, David and Tiffany Kosch, entered an agreement with Miami attorney, Richard Diaz, to sell their home “as-is” for nearly $2.8 million.  The purchase agreement followed the standard form for a real estate contract established by the Florida Bar.

As part of the purchase agreement the sellers completed a disclosure statement affirming, among other things, that they had no knowledge of improvements constructed in violation of applicable building codes, without necessary permits, or with any open permits not closed with a final inspection to the property or the presence of toxic substances. The prospective buyer deposited $50,000 in escrow for the purchase with a further deposit of $235,000 due when the 10-day right of inspection and right to cancel period expired.

AFrankel232During the 10-day inspection/termination period, the buyer raised concerns regarding unpermitted renovations; however, they did not negotiate an extension of the inspection period or terminate the transaction. On the final day of the right to terminate period, the buyers deposited the additional $235,000 in escrow, per the agreement, but also threatened legal action against the sellers.

Shortly before the closing date on the purchase, the buyers terminated the transaction demanding return of the money deposited in escrow. The buyers also filed a lawsuit against the sellers and brokers asserting claims for breach of contract, conversion, fraud in inducement, fraud in concealment, negligent misrepresentation, and conspiratorial fraud, with a claim for punitive damages asserted as well. The buyers also alleged the property contained radon contamination requiring extensive remediation.

The Ruling:

The litigation over the failed sale was extensive, lasting more than four-and-a-half years during which the buyer filed multiple motions for punitive damages. Ultimately, Judge Eric Hendon of the Circuit Court for Miami-Dade County issued a summary judgement in favor of the sellers, ruling the buyers did not properly exercise their right to terminate in the period allowed by the contract, and so were not entitled to a return of the money held in escrow. Additionally, the judge awarded the sellers attorneys fees in the case. In June 2018, the Third District Court of Appeal affirmed Judge Hendon’s decision.

The court ruled that the allegations in the plaintiffs’ complaint were contradicted by the language in the “As Is” Residential Contract for Sale and Purchase, which included non-reliance provisions. The court further ruled that the buyers could not attempt to get around these provisions by effectively creating a “conditional tender” of the second deposit, which would make the sellers liable for repairs, permitting issues and other circumstances.

Impact:

This was a landmark decision that reinforces the strict, but enforceable provisions in contracts governing residential real estate transactions. It affirms that purchasers and sellers must carefully review and comply with the letter of each provision in the Florida Bar’s standard form.

Parties in a home purchase must adhere to the wording of the “As Is” contract, which states that once a deposit is in escrow, the purchaser cannot change the terms of the agreement, and must either move forward or walk away. Purchasers are not allowed to create a “conditional tender” with a second deposit to reserve their right to purchase but hold the sellers liable for repairs.

South Florida Condo Boards Rip Off Consumers with High Application Fees

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Kluger Kaplan’s Josh Rubens weighs in on the condo controversy in the front cover of the Miami Herald story.

Condo associations across South Florida are ripping off consumers with high application fees in violation of state law, a Miami Herald investigation has found.

DBR: Lawyers See Boom in Construction Practice

A total of $723 million in contracts for future commercial and residential construction were awarded in South Florida in June, up 101 percent from $360 million in the same month a year before, according to Dodge Research Analytics.  Kluger Kaplan founding member Alan Kluger spoke to John Pacenti of the Daily Business Review about what this construction boom means for litigation.

“It’s what I call good-economy construction litigation, meaning that things are being built and they are selling,” said Kluger.  “We are in a boom. There is no doubt about it.”

View the entire article here.