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Wichmann v. Conrad & Scherer, LLP

Florida Court of Appeals, Fourth District

January 10, 2018

WILLIAM J. WICHMANN, individually, and WILLIAM J. WICHMANN, P.A., Appellants,

         Not final until disposition of timely filed motion for rehearing.

         Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Thomas M. Lynch IV, Judge; L.T. Case No. 09-011600 (05).

          Nichole J. Segal of Burlington & Rockenbach, P.A., West Palm Beach, and William J. Wichmann of Law Offices of William J. Wichmann, P.A., Fort Lauderdale, for appellants.

          Albert L. Frevola and Janine R. McGuire of Conrad & Scherer, LLP, Fort Lauderdale, for appellee Conrad & Scherer, LLP.

          KLINGENSMITH, J.

         Appellee Conrad & Scherer, LLP ("Conrad") filed suit against appellants William J. Wichmann and his law firm in a multi-count complaint following Wichmann's separation from Conrad. Wichmann responded by filing five counterclaims against Conrad, alleging misconduct on the part of his former employer. The trial court dismissed all five counterclaims, finding they were permissive and brought outside the applicable statute of limitations. We find that counts one through three were compulsory counterclaims, but counts four and five were permissive. Therefore, we dismiss this appeal as to the compulsory counterclaims for lack of jurisdiction, and affirm the trial court's dismissal of the permissive counterclaims.

         According to Conrad's complaint, Wichmann was a partner at the firm before he abruptly resigned in February 2009. Days before his resignation, Wichmann "stealthily" took 120 files, original documents, work product, and software from Conrad. Wichmann also used the firm's resources to file "Notices of Change of Law Firm" in several pending state and federal cases, and informed the court that these clients were now being represented by his new law firm, Rothstein, Rosenfeldt, and Adler ("RRA").

         Conrad was granted leave to amend its complaint four times. Finally, in April 2016, the court approved Conrad's fifth amended complaint as the operative complaint. This complaint added another attorney as a defendant and had a total of twelve counts, including claims for breach of fiduciary duty, fraud, conspiracy, and defamation. Conrad requested damages and the imposition of a constructive trust for any income Wichmann acquired in the future because of this "massive client-grabbing scheme."

         Wichmann filed his answer and included five counterclaims arising from a fact scenario rivaling those that might be found in a John Grisham novel. Wichmann averred that since 2008, while he was a contract partner with the firm, Conrad and its employees "perpetuated a scheme to manufacture, file and maintain frivolous and fraudulent cases against U.S. corporations." Wichmann also claimed that Conrad and its employees engaged "in illegal acts, including but not limited to witness bribery, suborning perjury and money laundering."

         Wichmann claimed he objected and refused to participate in these illegal activities, but the firm nonetheless continued, which "caused or contributed to Wichmann's disassociation from [Conrad]." Under counts one through three, Wichmann alleged that Conrad not only breached its fiduciary duty and contract with Wichmann by engaging in such illegal activities, but Conrad also committed fraud by attempting to conceal the unlawful conduct.

         Under counts four and five, Wichmann alleged that after he resigned from Conrad and accepted a position at RRA, Conrad unlawfully and intentionally interfered with Wichmann's business relationship by immediately contacting RRA, making false statements about him, and convincing RRA to revoke its offer of employment.

         Conrad moved to dismiss Wichmann's counterclaims, arguing that all five were permissive, not compulsory, because they did not bear a logical relationship to its complaint. As permissive counterclaims, Conrad argued that they were barred by the statute of limitations because they involved facts that occurred seven years prior to Wichmann's filing. The trial court agreed with Conrad and entered an order dismissing Wichmann's counterclaims with prejudice. This appeal followed.

         The issue of whether the trial court correctly characterized Wichmann's counterclaims as permissive, rather than compulsory, presents a pure question of law subject to de novo review. See Whigum v. Heilig-Meyers Furniture Inc., 682 So.2d 643, 646 (Fla. 1st DCA 1996).

         A counterclaim is compulsory if "it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim." Fla. R. Civ. P. 1.170(a). In determining whether a counterclaim is compulsory, ...

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