WILLIAM J. WICHMANN, individually, and WILLIAM J. WICHMANN, P.A., Appellants,
CONRAD & SCHERER, LLP, J. MICHAEL FITZGERALD, individually, and FITZGERALD & ASSOCIATES, P.A., Appellees.
final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Thomas M. Lynch IV, Judge; L.T. Case No.
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.
L. Frevola and Janine R. McGuire of Conrad & Scherer,
LLP, Fort Lauderdale, for appellee Conrad & Scherer, LLP.
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
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").
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
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
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.
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
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
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).
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, ...