Michael J. Schlesinger of Schlesinger & Associates, PA in Miami was on the winning side of Sugar v. Estate of Stern, an interesting 3d DCA case I wrote about here involving a failed attempt to invalidate a settlement agreement based upon alleged oral statements made during the negotiations leading up to the signed contract.
What strategic decisions did you make that were particularly outcome determinative on appeal?
Although the legal issues, the effect of a prior settlement and general releases, are not a difficult area to argue, the record in this case was tremendous. It took me many hours to get my hands around it. I reviewed every single page to show that the positions being taken by the Appellee were totally inconsistent with the facts and prior orders of the court. I had to convince the appellate court that settlement agreement(s) were final, that the general releases covered all known and unknown claims and that the opposing party’s position that the issue sought to be used to open up the settlement was unknown at the time of the settlement agreement and court approval of same, was simply not credible based upon the record. So I then used the opposing parties and their counsel’s own filings made at the time of the settlement and compared them to the clearly contradictory position taken to the trial court below to show that the issues were being improperly re-litigated by the other side.
If you had to do it all over again, would you have done anything different in terms of framing the issues for your trial-court judge?
I did not argue the case to the trial court below but I did review the transcript and I cannot point to an issue that in hindsight should have been raised. Moreover, if you review the transcript, it appeared that the trial court understood that the prior settlement was final and that the general release covered the alleged “new” claim. But for some reason, the trial court found the exact opposite causing my clients to file the subject appeal. As a footnote, the trial court granted my clients’ motion to recuse while the appeal was pending.
Any final words of wisdom for probate litigators of the world based on what you’ve learned in this case?
This case was unique for me and very difficult to write the appeal. My clients were behind the eight ball when I was retained. The opposing counsel as well as the other parties wrongly, in my opinion, demonized my clients to the trial court and it was expected the same tactic would be used on the appeal. However, I knew from experience in the Gil v. Hernandez II case, that the law on settlements in probate litigations seems to be very clear now in the 3rd DCA, that a general release will cover any known or unknown claims and in practice when drafting settlement agreements, it is incumbent of all practitioners in our field to spell out if any claims are “carved” out from the settlement. Also, make sure you check every pleading or filing made by your opponent, as what they argue now may not be what they argued then.