by S. D. Thames
“December.”
“In fact, you began seeing her while she still lived with me?”
Justin glanced at Chaska, and then answered reluctantly. “I guess you could say that.”
“And you recall the night I found out that you were seeing her?”
“Yes.”
“We were in Miami?” David’s voice cracked. Justin just nodded. “I was angry?”
“You could say that.”
“I assaulted you?”
Chaska stood. “Your Honor, he’s admitting to committing a crime in open court.”
“And I see where he’s going with it. If their relationship was strained, it makes it less likely that there was an attorney-client relationship.”
David nodded. “Precisely, Your Honor.” Back to Justin: “Now Mr. Baxter, you and I never spoke after the night I assaulted you until the day we met in your office. Is that correct?”
“That’s right.”
“So for all you knew, I was going to assault you again that day?”
“It certainly had crossed my mind. But what you’re leaving out is that I had had extensive conversations with Mackenzie Alderman about your firm representing Meridian Bank.”
“But you and I never had those discussions?”
“Not until we met in my office.”
“I’ll come back to that. You never told Ms. Alderman about our altercation?”
“No. She talked like you and I were great friends.”
“Which we were, before you began having relations with my former girlfriend?”
“Yes, we were.”
David glanced at the judge, hoping she was listening and getting it. “And when we met that day in your office, you never disclosed anything confidential to me?”
“I don’t agree with that.”
“I mean, your mortgage loans, they are all public records?”
“Presumably.”
“You never named one of your borrowers when we talked?”
“I already said I didn’t.”
“You certainly never discussed Pinnacle Homes & Investments?”
Growing impatient, Justin let his eyes roll a bit. “Obviously not.”
David paused, just to build a little suspense. “And didn’t you even ask me at one point whether we could talk in confidence?”
“I don’t recall that being the precise question.”
“But something to that effect?”
Justin reluctantly nodded. “Possibly. Yes.”
David narrowed his eyes, focused intently on his adversary. “And do you recall my answer?”
“I don’t.” Justin was losing his confidence. And credibility.
“Didn’t I answer your question with a question?”
“You tell me,” Justin said.
“Didn’t I ask you whether you had signed an engagement letter?”
“I think you did.”
“And that was a rhetorical question, wasn’t it?”
“You asked it, David.”
“Because we both knew that Meridian Bank had not signed an engagement agreement?”
“We knew that,” Justin said with a tone of defeat.
“And we both know there’s no attorney-client relationship until that’s signed?”
“I would not agree with that.”
“Well, you would agree that I told you not to disclose anything confidential until an engagement was signed?”
“I would not disagree with that.”
Judge Leblanc, clearly frustrated, leaned in Justin’s direction, shaking her head. “Mr. Baxter, either you agree or you don’t. Please answer the question clearly so I can make my ruling.”
“I would agree, Your Honor. Sorry.” Justin gave Chaska a hopeless, if not guilty, stare. The attorney was just sitting back, disgruntled, like a child watching his sand castle wash away in the tide.
“Nothing further, Your Honor.” David took his seat and noticed that Terry was sitting in the back row of the gallery now. He gave David a quick thumbs-up.
Judge Leblanc kept her head down, apparently reading something that David couldn’t see. She finally looked up. “Mr. Chaska, what other evidence do you have that an attorney-client relationship was formed?”
Chaska returned to the lectern, this time with a little less zeal in his step. “Your Honor, that’s the evidence, and that’s enough. Florida law does not require a signed engagement agreement. It does not require payment of a retainer. It requires only a subjective belief on behalf of the client that he is consulting a lawyer for legal services.”
Judge Leblanc nodded in agreement. David finally realized that she nodded at everything. “Mr. Friedman. Your response?”
David stood. “Your Honor. I direct you to my written submission, at page five. Yes, Florida law requires only a subjective belief, but the law is clear that it has to be a reasonable one. That’s the key. Mr. Baxter, even assuming he really believed I was his attorney when we talked, his subjective belief was not reasonable. He is sleeping with my girlfriend, the woman he knew I wanted to propose to in the near future. He knew I was very angry about that, too, and only a few weeks earlier I had busted his nose outside a tapas restaurant in Miami for dating her. For him to trust me as his lawyer under these facts is simply unreasonable.”
Judge Leblanc sat stone-faced for a moment. She finally nodded. “I have to agree with him, Mr. Chaska. Under these circumstances, I find that Mr. Baxter could not have formed a reasonable subjective belief that he was speaking to the bank’s lawyer at the time he and Mr. Friedman met in his office.” She paused for a moment before ruling. “The motion to disqualify is denied.”
David turned and grinned at Terry, who returned a quick wink.
Judge Leblanc looked at the clock. “Now we’ve already exceeded the thirty minutes I gave you, Mr. Chaska. What else did you have set for today?”
Chaska returned to the lectern. “Judge, we also have a motion to dismiss and a motion to appoint a receiver. The motion to appoint a receiver will require more evidence and discovery. So we will reschedule that.”
“Please call chambers to get ample hearing time. I’ve briefly reviewed the motion. You need at least half an hour more for that.”
Chaska flipped over a few papers on the lectern. “Yes, Your Honor. So that leaves only the motion to dismiss on the table.”
The judge glanced at the clock. “Yes, and I’ve reviewed that one more closely. I’ve also read Mr. Friedman’s submission in opposition. I find that the motion is due to be denied. Your arguments may prevail, Mr. Chaska, but they raise factual issues that cannot be decided on the face of the pleadings. Feel free to file a motion for summary judgment on those issues at the close of discovery.” Judge Leblanc gathered her papers. “Anything else we need to address today?”
David was trying to play it cool, doing his best to conceal his relief.
But Chaska wasn’t ready to throw in the towel yet. “Yes, Your Honor. For the receiver motion we’re going to reschedule, we will need discovery before the hearing. So we had requested expedited discovery.”
David stood. “Judge, we have objections to that discovery.”
“What are you requesting, Mr. Chaska?”
“For purposes of the hearing, the main issue is escrow records for Gaspar Towers. We have reason to believe that those escrow monies have not been handled in accordance with the Florida Condominium Act. There should be about ten million dollars there, and my client has a security interest in that money. If what is alleged in some of these lawsuits brought by the purchasers is true, it would not only be a crime but also a breach of the loan agreement.”
The judge settled back into her seat. “I’m familiar with those lawsuits. Those are my cases.”
Chaska smiled, seeming to see his opening. “I know they are, Your Honor, and the mishandling of those funds also supports our application for a receiver to manage the property pending the foreclosure.”
The judge turned to David. “Mr. Friedman
, what are your objections to those records?”
David felt Frank’s nauseating grip squeezing his torso on the balcony. “Relevance and overbroad, Judge, among others.”
“They have a security interest in those monies, do they not?”
David had to concede that point.
“So how are they overbroad?” the judge moaned.
“It’s the volume of documents. We can give them a summary of the deposits, but they want much more. They want all documents relating to them and all supporting documents. Essentially, it would require us to produce anything tangentially related to the escrow accounts.”
Chaska interrupted. “That’s not true, Judge. We just want all the account statements for the past eighteen months.”
The judge shrugged. “Sounds plenty reasonable to me. Pinnacle Homes will have twenty days to produce those records. Put it in an order along with my other rulings and submit it to chambers within two days.” And with that the judge left the courtroom.
Terry rushed to David and patted him on the back. “Just when I’m ready to throw you to the curb, I see you in action. Excellent job, kid.”
“Yeah, another pyrrhic victory.”
“Why do you say that?”
David eyed Chaska walking toward them.
“Twenty days should be ample time, eh?” Chaska said.
David nodded. “We’ll abide by her order.”
Justin passed Chaska and stopped a few feet from David. “You know you’re never going to win this case, don’t you?” He turned and followed Chaska out the courtroom.
Terry turned to console David. “Don’t worry about that little prick. That’s why we fired him.”
“I don’t care anymore, Terry. I don’t care about anything but this case.”
“Well, in any event, just do whatever you have to and get those escrow records.”
David sighed as he considered that. Any pleasure he felt from winning this hearing was quickly fading with the thought of trying to compel Frank to produce the escrow records.
“What’s wrong?” Terry asked.
“I’m going to need a lot of sunscreen.”
CHAPTER FOURTEEN
The sun hadn’t risen, but the humid air enveloping the marina was a sure sign that the day would be a scorcher. David was sweating before he reached the dock, which wasn’t saying much—he sweated even just thinking about getting hot. That he practiced law in southwest Florida and had to track to the courthouse wearing a suit in this climate year-round was typical of his good fortune. Fortune aside, he just wanted to get through today in one piece and impress upon Frank the importance of producing the escrow records. If he could further impress Frank by catching a tarpon, so be it.
He arrived at the Katherine Anne to find Frank and Robbie tying up loose ends.
Frank chuckled when he saw David. “Hey, Robbie, look who made it.”
Robbie muttered something about tying up his line.
“I figured this is the only way to get your ear,” David said. He stared at the boat, unsure how to board it.
“You figured right.” Frank cranked the motor, and the abrasive shrieking noise cut through the quiet morning.
Robbie untied the mooring from the dock and stared blankly at David. “You coming or not?” The boat began drifting away.
“Get on, David,” Frank yelled.
David put his left leg on the boat as it pulled away. He grabbed the rail and hiked his right leg over it. Before both feet were onboard, the boat was speeding away from the dock. David eased along the rail toward the console, where Frank stood at the helm.
Frank steadied the wheel and checked the gauges on the console. “You know, Friedman, you’re the first lawyer I’ve taken on this boat.”
“Is that a good thing?”
“We’ll see how the day goes.”
“How far out we going?”
Frank raised a lever to accelerate. “Not too far. Tarpon like the flats.”
David looked ahead as the Gulf came into view. He felt the sun rising behind him and, with it, the temperature. He glanced at his pale arms that hadn’t seen a full day of summer since he’d started practicing law. “So what’s your fascination with tarpon?” he asked Frank.
“You want to answer that, Robbie?” Frank hollered over the screaming motor.
“You’d have to catch one to understand,” Robbie yelled in a cynical tone that suggested David would never understand.
The boat reached the opening of the Gulf as rays of sunlight scattered across the horizon. On cue, Robbie stepped in front of Frank and took the wheel, while Frank stepped back, pulled open a cooler, and produced a blood-red glass jug. He poured a drink. “We always start the day with a Bloody Mary.”
Though his empty stomach already felt queasy from riding the swells, David took the drink from Frank, who poured another for himself.
“All right, hotshot,” Frank said. “Tell me what happened at that hearing the other day.”
“For starters, I’m allowed to continue representing you against Meridian Bank.”
“And I was hoping you’d be disqualified.”
“And the judge denied the motion to dismiss.”
“You’re talking Greek again.”
“It means we get to take discovery and a shot at proving our case.”
“Good work. So let’s fish.” Frank looked over the hull and directed Robbie’s attention to one of the gauges. Robbie veered the boat to the left.
“That’s the good news,” David said. “Are you ready for the bad?”
“Why’s there have to be bad news? Just fix it.” Frank took a few steps toward David and sipped his drink, reminding David he hadn’t touched his yet. David took a gulp. The acidity of the tomato juice and vodka burned on the way down, settling into his gut like embers in an empty gas can.
“So what’s the problem?” Frank asked.
“It’s about their motion to appoint a receiver.”
Frank shook his head.
David didn’t know if Frank couldn’t hear him or just didn’t understand. “A receiver,” David yelled, “is appointed by the court to take over the property. They’re claiming you’re not taking care of the Towers. And that you’ve mishandled the escrow money.”
“That’s not their money,” Frank said.
“It’s not yours either. More importantly, their mortgage attaches to it too.”
“Fuck them.” Frank wiped glistening sweat off his brow.
David wiped his own brow. “The main thing that concerns me is the escrow records.”
“Why?”
“Because I don’t feel like you’ve ever been straight with me.” David glanced around for land. Saw none.
“I’m not being straight with you? That’s your concern?”
David nodded. “Look, times are tough. You wouldn’t be the first developer to use escrow deposits to fund construction or maintenance.”
“Is that what you think I did?”
“I don’t know what you did. But I can’t help you solve your problems if you don’t tell me what they are.”
Frank slid off his sunglasses and left them dangling on a rubber band around his neck. “Well, let’s assume your hunch is right. Let’s assume I spent some of the money. So what?”
“It would be a breach of the loan agreement. It could also be a crime.”
“A felony?”
“Third degree.”
“Scary.”
Robbie killed the motor. Then he nodded to Frank and stepped away from the console. The boat began drifting with the current.
David knew there was little time before Frank would be paying attention to nothing but catching a tarpon. “Frank?”
“So what do you need?” Frank’s voice grew impatient.
“I need the escrow records. Account statements for every purchase contract at the Towers. For the past eighteen months.”
“They’re not ready yet,” Frank said.
“How can they not be rea
dy?”
“Why do you think?”
“When will they be ready? You or Katherine will have to testify about them at the next hearing.”
“Leave her out of this.” Frank’s voice rose. “This is her fault to begin with. I’ll get you the records.” He paused for another moment of deliberation. “When’s our deadline?”
“Next week.”
Frank nodded. “I’ll have them for you then.”
“So these records, are they going to be real?”
Frank laughed. “As far as you’re concerned.”
David noticed the current swarming around the boat, and he realized that this was about as much information as he was going to get out of Frank. “I guess that’s all I need to know for now.”
Frank nodded a smile. “Good. Let’s get busy. Have you ever fly-fished?”
Robbie turned to see David’s response, but David just shook his head.
“Don’t worry,” Frank said. “Robbie tied you a fly. Just follow our lead.”
Robbie handed a rod to David. Then Frank aimed his rod over the rear right of the boat and cast his fly in short, abrupt pulses. Robbie did the same from the rear left. David huddled next to Frank and watched him throw a few more casts.
Frank raised his rod to cast again, and noticed David standing nearby. “You gonna watch me all day or fish?”
David took his rod and crossed the deck, as far away from Robbie and Frank as he could get. By now, the sun was a quarter into the sky and cooking everything under its glow, including David’s back and the deck under his feet.
David glanced around to make sure no one was watching his first cast. He raised his rod to ninety degrees, and then flicked the fly forward. It seemed to move out in the right direction, at least at first, until David heard his reel make a clanging sound as though it had shattered. He glanced down and saw his line was tangled into a jumble of knots around the reel. He glanced to his left, where Frank was preoccupied with his fly lure dancing along the current of the Gulf. David carefully began unwinding the mesh of knots in his reel, hoping Frank would not notice. But the more line he released, the more of a tangled mess he uncovered. He realized he’d probably need scissors to fix this.
“What have you done?” Robbie was peering at him over the console.
