Fla. Bar v. Marcellus

• Decision Date: 19 July 2018
• Docket Number: No. SC16-1773,SC16-1773
• Citation: 249 So.3d 538
• Parties: THE FLORIDA BAR, Complainant, v. Madsen MARCELLUS, Jr., Respondent.
• Court: Florida Supreme Court

249 So.3d 538

THE FLORIDA BAR, Complainant,

v.Madsen MARCELLUS, Jr., Respondent.

No. SC16-1773

Supreme Court of Florida.

[July 19, 2018]

Joshua E. Doyle, Executive Director, Tallahassee, Florida, Jennifer R. Falcone, Bar Counsel, Miami, Florida, and Adria E. Quintela, Staff Counsel, The Florida Bar, Sunrise, Florida, for Complainant

Kevin P. Tynan of Richardson & Tynan, P.L.C., Tamarac, Florida, for Respondent

PER CURIAM.

We have for review a referee's report recommending that Respondent, Madsen Marcellus, Jr., be found guilty of professional misconduct and suspended from the practice of law for one year. We have jurisdiction. See art. V, § 15, Fla. Const. We approve the referee's findings of fact and recommendations as to guilt, but disapprove the referee's recommended sanction, and instead suspend Madsen Marcellus, Jr., from the practice of law for eighteen months, as set forth below.

BACKGROUND

The Florida Bar (the Bar) filed a complaint with the Court alleging that Respondent, Madsen Marcellus, Jr., violated various Rules Regulating the Florida Bar (Bar Rules). The case was referred to a referee, and the referee filed his report with the Court. Both Marcellus and the Bar sought review of the referee's report.

The referee made the following findings of fact in his report. Marcellus was a party to dissolution of marriage proceedings that were initiated in 2009; the final hearing in the case took place in November 2009 and the Final Order on Petition for Dissolution of Marriage and Other Relief (Final Order) was issued on April 23, 2010. As reflected in the Final Order, the family court ordered Marcellus and his ex-wife, Kellie Peterson Gudger, to either refinance the marital home into solely Marcellus's name within thirty days of that hearing or sell the home. Although there was conflicting testimony at the final hearing before the referee, the referee found that Marcellus vacated the marital home sometime during the pendency of the divorce, and that the couple had arranged for sale of the home. Two days prior to the closing, after Gudger vacated the house and completed her portion of the paperwork for the sale of the home, Marcellus moved back into the home and refused to complete his portion of the paperwork; as a result, the sale fell through. Thereafter Marcellus refused to leave the home. After Marcellus reinhabited the home, he made several attempts to refinance the mortgage into his name alone. However, he was unable to do so based on his income.

In March 2010, Marcellus pursued another mortgage modification, this time with the help of a family friend, Curt Francis. Marcellus and Francis testified that while applying for the mortgage modification, Marcellus contacted Gudger and asked her to apply for the modification with him, but she refused. Francis told Marcellus that he would call Gudger and convince her to sign the document. Francis left the room as if to call her, and returned shortly thereafter indicating that Gudger had agreed to allow him to execute the mortgage modification on her behalf. Francis signed the document, purportedly on Gudger's behalf, and notarized the signature which he himself affixed to the document. Marcellus knew that Francis signed the document and notarized his own signature. However, contrary to assertions by Marcellus and Francis, Gudger testified that neither Marcellus nor Francis called her regarding the modification application. She maintained that she never agreed to have Francis sign the modification application on her behalf. As a result of this action, Francis lost his notary commission in Florida. Ultimately, the mortgage modification application with the fraudulent signature was accepted and approved by the lender.

Gudger first learned of Marcellus's modification of the mortgage using the forged signature upon being served a foreclosure complaint filed by the lender on December 8, 2011, after Marcellus failed to make payments on the mortgage following modification thereof.¹ In June 2013, Gudger filed a motion for contempt with the family court as a result of Marcellus's failure to comply with the terms of the Final Order in their divorce case, requiring him to either refinance the home into solely his name within thirty days of the November 2009 final hearing or sell the home. The family court ordered Marcellus to pay Gudger $2,500 in fees charged to prepare and file the contempt motion but ultimately declined to hold him in contempt of court.

Additionally, in May and June 2013, Gudger served Marcellus with various discovery requests regarding his alleged noncompliance with family court orders concerning child support and other matters. At a July 24, 2013, hearing, the family court found that Marcellus had not responded to any of the discovery requests and ordered him to do so within ten days of that hearing. Marcellus did not comply with that order and did not comply with any of the discovery requests for the next year of litigation. Gudger filed several motions to compel discovery. The family court granted Gudger's motions to compel on September 24, 2013, July 1, 2014, and September 11, 2014. The family court sanctioned Marcellus for his failure to comply with its orders and ordered him to pay Gudger's attorneys' fees within thirty days. Additionally, the September 11, 2014, order fined Marcellus $50 per day until he provided proof of compliance with the discovery requests. Subsequently, the family court issued an order directing Marcellus to appear before it on September 15, 2014, to show cause why he failed to comply with the court's prior orders and why he should not be sanctioned. Marcellus failed to appear, and the family court issued a writ of bodily attachment. Ultimately, the family court dissolved the writ after Marcellus's appearance at the next scheduled hearing so that the case could go forward, but expressed disbelief at Marcellus's excuse that his newly hired counsel, who also happened to be his law partner, failed to notify him of the Monday morning show cause hearing until after close of business on the preceding Friday.

The referee found that Marcellus remained in violation of several family court orders as of the date of the final hearing in this case. Specifically, the referee found that Marcellus had failed to pay the attorneys' fees or fines ordered by the family court on September 24, 2013, July 1, 2014, and September 11, 2014. He also found that Marcellus remained in violation of the family court's April 23, 2010, Final Order by remaining in the marital home and failing to refinance it out of Gudger's name. Additionally, the referee found that Marcellus took actions to evade arrest on the writ of attachment, such as exchanging vehicles with his current wife so that he would not be found driving the vehicle described in the writ and avoiding his children's activities for fear of being arrested.

RULE VIOLATIONS

The referee recommended that Marcellus be found to have violated Bar Rules 3-4.3 (Misconduct and Minor Misconduct); 4-3.4(a) (a lawyer must not unlawfully obstruct another party's access to evidence or otherwise unlawfully alter, destroy, or conceal a document or other material that the lawyer knows or reasonably should know is relevant to a pending or reasonably foreseeable proceeding); 4-3.4(b) (a lawyer must not fabricate evidence); 4-3.4(c) (a lawyer must not knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists); 4-3.4(d) (a lawyer must not in pretrial procedure make a frivolous discovery request or intentionally fail to comply with a legally proper discovery request by an opposing party); 4-8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation); and 4-8.4(d) (a lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice).

Marcellus challenges several of the referee's findings of fact and argues that the referee's recommendations as to guilt with regard to Bar Rules 4-3.4(a), (c), and (d), and 4-8.4(c) are not sufficiently supported by the referee's findings of fact. Marcellus does not challenge the referee's recommendations that he be found guilty of violating Bar Rules 3-4.3, 4-3.4(b), and 4-8.4(d).

When reviewing a referee's findings of fact, "the Court will not reweigh the evidence and substitute its judgment for that of the referee" if the referee's findings of fact are supported by competent, substantial evidence in the record. Fla. Bar v. Gwynn , 94 So.3d 425, 428 (Fla. 2012). Additionally, it is the referee's responsibility to make credibility determinations and resolve conflicts in the evidence presented at the final hearing. Fla. Bar v. Niles , 644 So.2d 504, 506 (Fla. 1994). Further, the referee's findings of fact must be "sufficient" to support the recommendations as to guilt. See Fla. Bar v. D'Ambrosio , 25 So.3d 1209, 1216 (Fla. 2009) ; Fla. Bar v. Shoureas , 913 So.2d 554, 557-58 (Fla. 2005).

In this case, many of Marcellus's challenges to the referee's factual findings represent no more than credibility arguments. However, it is the respondent's burden to demonstrate that the referee's factual findings lack support, and simply "pointing to contradictory evidence where there also is competent, substantial evidence in the record that supports the referee's findings" will not suffice. Fla. Bar v. Glick , 693 So.2d 550, 552 (Fla. 1997). Accordingly, those findings of fact are hereby approved without further discussion.

Marcellus does present several more substantive challenges to factual findings by the referee. Marcellus contends that he did not violate the family court's April 23, 2010, Final Order on Petition for Dissolution of Marriage and Other Relief by obtaining a mortgage modification using Gudger's name because the Final Order was not issued until after the modification had occurred. However, the referee's finding...