Visoly v. Security Pacific Credit Corp.
2000 Fla. App. LEXIS 10508, 2000 WL 1153879, 768 So. 2d 482 (2000)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
An individual who actively participates in, controls, or directs litigation can be considered a "party" subject to sanctions for frivolous conduct, even if not formally named in the pleadings. An appeal is frivolous, warranting sanctions against both the party and their attorney, if it presents no justiciable issue and is so devoid of merit that there is little prospect of success.
Facts:
- Aviad Visoly sued Security Pacific, claiming a mortgage held by Security Pacific on a shopping center owned by Westburry Shoppes Corporation was void.
- During a deposition in that initial suit, Aviad Visoly admitted he owned no stock in Westburry and that the mortgage had been properly executed by Westburry's president.
- After the mortgage defaulted and Security Pacific began foreclosure proceedings, Aviad Visoly entered into a settlement agreement with Westburry's actual owners which acknowledged their stock ownership.
- Despite his prior admissions, Aviad Visoly and Miri Mayost Visoly filed affidavits in the foreclosure action claiming they each owned 50% of Westburry's stock and that the mortgage was a forgery.
- This false claim contradicted a prior court finding, Aviad's deposition testimony, and the settlement agreement he had signed.
- For the next nine years, the Visolys engaged in a series of delay tactics, including filing motions to recuse three different judges, having multiple lawyers withdraw, and filing personal letters with the court.
- The Visolys moved to Israel during the course of the litigation.
- The Visolys' actions caused Security Pacific to incur over $750,000 in legal fees to foreclose a mortgage that had been deemed valid at the outset of the litigation.
Procedural Posture:
- Security Pacific Credit Corporation filed a suit to foreclose a mortgage against Westburry Shoppes Corporation in the trial court.
- The trial court entered a final judgment of foreclosure in favor of Security Pacific.
- Security Pacific then filed a motion for attorney's fees against Miri and Aviad Visoly personally, pursuant to Florida Statute § 57.105, alleging their conduct during the litigation was frivolous and intended to cause delay.
- The trial court granted the motion, finding the Visolys' positions were a sham and assessing attorney's fees against them in the amount of $347,321.75.
- The Visolys (appellants) appealed the order assessing attorney's fees to the District Court of Appeal of Florida, Third District, with Security Pacific as the appellee.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a trial court have personal jurisdiction to assess attorney's fees against individuals who, although not formally named as parties in the underlying action, actively participated in and controlled the litigation by filing false affidavits and engaging in years of vexatious delay tactics?
Opinions:
Majority - Gersten, J.
Yes, a trial court has jurisdiction to impose sanctions on individuals who function as parties to the litigation. A "party" is not limited to those formally named in pleadings but includes anyone who is concerned with, conducts, or takes part in the proceeding. The Visolys clearly participated in and controlled this litigation by employing counsel, contributing to its expenses, filing numerous documents and false affidavits, and directing the course of the proceedings for nine years. Therefore, the trial court correctly found them to be parties subject to its jurisdiction for the purpose of assessing attorney's fees. The assessment of fees was proper under Florida Statute § 57.105 because the Visolys' claims, based on false affidavits and re-litigating settled issues, were a "complete sham" and "plainly frivolous," presenting no justiciable issue of law or fact. Furthermore, the present appeal is also frivolous, warranting additional sanctions against both the Visolys and their appellate counsel, who had a professional duty to refrain from pursuing an appeal so clearly devoid of merit.
Analysis:
This decision reinforces the court's inherent power to sanction vexatious litigants who abuse the judicial process. By adopting a broad, functional definition of a "party," the court prevents individuals from using corporate shells or their status as non-parties to escape accountability for frivolous litigation. The opinion serves as a stern warning to both litigants and their attorneys, emphasizing that an attorney's duty as an officer of the court supersedes the duty of zealous advocacy when a client insists on pursuing baseless claims or appeals. This strengthens the ethical obligation of lawyers to act as gatekeepers against frivolous litigation, holding them jointly liable for sanctions when they fail to do so.
