Legal Malpractice Lawsuit to Proceed

By Braga, Michael | Sarasota Herald Tribune, March 26, 2013 | Go to article overview

Legal Malpractice Lawsuit to Proceed


Braga, Michael, Sarasota Herald Tribune


The Icard Merrill law firm had hoped to put a quick end to a malpractice suit filed by the Federal Deposit Insurance Corp. against one of its top attorneys, Robert Messick.

But U.S. District Court Judge Virginia Hernandez-Covington's March 15 ruling on the firm's motion for summary judgment not only denied that request, it also removed the expectation that the case might wither away.

In her ruling, the judge said she had concluded that a "reasonable" juror could find Messick guilty of the FDIC's accusations against him.

"Under the undisputed facts before the court, a jury could find that the defendants committed legal malpractice," Hernandez- Covington wrote.

Dennis Waggoner, a Tampa attorney who represents Messick and Icard Merrill, said the judge's ruling simply means that the case will now proceed to trial sometime in May.

"It's extremely difficult to get a summary judgment," Waggoner said. "We're disappointed, but we're ready to move ahead and show a jury that Bob Messick and Icard Merrill did absolutely nothing wrong when representing First Priority Bank."

The FDIC sued Messick and Icard Merrill in December 2011 in connection with a $5.3 million loan that the now-defunct First Priority Bank made to a company led by former Longboat Key real estate investor Mark Brivik during the boom.

Brivik was trying to develop a 22-acre property along the Upper Manatee River, and its lender -- Siesta Key-based US Funding Group - - was putting pressure on him to pay off an existing $4.3 million loan.

With Messick's help, Brivik secured fresh funding from First Priority. But Brivik's company ended up defaulting 18 months later.

After shuttering First Priority, the FDIC accused Messick of breaching his fiduciary duty by failing to inform the bank's board of directors that he also represented Brivik and US Funding in the loan transaction. According to the FDIC's lawsuit, the conflict of interest allegedly prevented Messick from providing unbiased counsel to the bank.

"A reasonable juror could determine that when Messick should have had the bank's best interest in mind, he was actually acting at the behest of other entities -- constituting a breach of fiduciary duty," Hernandez- Covington stated in her March 15 order.

The FDIC also claimed that Messick failed to advise First Priority's board that an option to buy another 25-acre parcel of land -- part of the bank's collateral for the loan -- did not exist.

In October, Waggoner filed a motion for summary judgment, arguing the case should be dismissed because the allegations in it were false.

"Undisputed evidence" shows that Messick told the bank about his conflict of interest and obtained a waiver, Waggoner stated in his motion. …

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