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, a Florida Professional Association, Defendants.



Plaintiff, SAG1T TOVA GOTTFRIED, by and through the undersigned counsel, hereby gives Notice of Filing the attached letter with a proposed Order on Defendants' Amended Motion to Strike the Third Amended Complaint as a Sham Pleading from Robert M. Klein, Esq., which letter was handdelivered to the Court on August 18, 2010 but not emailed to or otherwise received by the undersigned until August 19, 2010.

I HEREBY CERTIFY that a true and correct copy of the forgoing was served upon Robert M. Klein, Esq., Stephens, Lynn, Klein, Lacava, Hoffman & Puya, P.A., 9310 South Dadeland Boulevard, PH II, Two Caftan Center, Miami, Florida 33156 STO ASSO
wys for Pin nhff

day of August, 2009. .A.


287 NE 191 st eet, mt 304 A entur4, Flo da 3 ; 180 .:(305)!935 : (305 9 4470 BY: ROBERT A. STOK, ESQ. Florida Bar No: 857051
2575 N.E. 191 5' STREET SUITE 204 Av gNrunA, FLORIDA 33130 - TEL:

305.935.4440 FAX: 305.935.4470 SUPPORT@STOXLAW.COM

Joshua Kon From: Sent: To: Subject: Attachments: Jessica Pierson [ ] Thursday, August 19, 2010 10:21 AM ; ; Gottfried. !mg-819090724.0f


(448 KB)

See attached letter to Judge Schlesinger and attached order.

Jessica Jo Pierson, legal assistant to Robert M. Klein, Esq. Stephens, Lynn, Klein, P.L. 91305. Dadeiand Blvd., Datran Miami, FL 33156 Tel: 305.670.3700 Fax: 305 670 8592 For more information about Stephens, Lynn, Klein, P.L. please visit the firm's web page at: .

Fax: 305.670.8592 Wats: 800.329.2911

*CONFIDENTIALITY NOTICE: This e-mail message including attachments, if any, is intended only for the person or entity to which it is addressed and may contain confidential and/or privileged material. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail, destroy all copies of the original message, and do not disseminate it further. If you are the intended recipient but do not wish to receive communications through this medium, please advise the sender immediately.


STEPHENS LYNN KLEIN LA CAVA & PUYA, PA. Robert M. Klein Attorney At Law Alio Admitted InManschuots E-Mail Two Danan Center -Ph II 9130 South Dockland Boulevard Miami, FL 33156 Telephone 305.6703700 Fax 305.670.8592 Florida Wats 800.329.2911

August 18, 2010.

SENT VIA HAND-DELIVERY 'Honorable John Schlesinger Dade County Courthouse. 73 West Flagler Street, Room 1111 Miami, FL 33130 RE: GOTTFRIED vs KUTNER, et al.

Case No.: 08-65074 CA 31 Our File No.; 08-0905

Dear Judge Schlesinger: Per your instructions, attached is Defendants' proposed Order of Dismissall. If the.. proposed Order meets with your approval, I would appreciate it if you would execute the order and would ask that your Judicial Assistant return conformed copies to counsel for the parties in the enclosed envelopes: Respectfully submitted,

RMK/jp Encl. cc via e-mail:



Mark Sullivan, Esq. (In the Firm) Maurice Kutner, Esq. Robert Stok, Esq.


Fort Lauderdale Oa: Telephone 954.462.4602 -------------

Tampa Office Tcleithonen3.209S611

ec, 011UZUMUU

Fort Myers Office

Telephone 239.939.7855

West Palm Beach Office Telephone 561.655,1500 FlorldaVols 800.329.1501


08-65074 CA 31

MAURICE JAY KUTNER, an individual, MAURICE JAY KUTNER AND ASSOCIATES, P.A., a Florida Professional Association, Defendants.

THIS CAUSE having come on before the Court for an Evidentiary Hearing, commencing July 26, 2010, with a final day of evidence and testimony on August 4, 2010. The Court has considered Defendant's Sworn Motion to Strike, the Plaintiff's Motion to Strike Defendant's Sworn Motion to Strike Plaintiff's Corrected Third Amended Complaint, the exhibits that were attached to both motions, the exhibits that were introduced at the Evidentiary Hearing, the memoranda that had been provided by the parties both before and following the Evidentiary Hearing and the testimony of the parties, both in these proceedings and in the Marital Dissolution proceedings. The Court has also considered extensive portions of the record of the case In Re: The Marriage of Sagit Tova Gottfried and Chaim David Gottfried, et al., Case No. 07-20997 FC 12, including transcripts


Mrs. Gottfried's deposition testimony in Page 1 of 15


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that matter, the transcripts of the first two days of trial, Mrs. Gottfried's testimony at several different hearings where she sought affirmative relief and the hearing that was conducted by Judge Lando in August of 2008, when Mrs. Gottfried (Now Keren) testified that she was prepared to accept a settlement which had been achieved with her husband, Chaim David Gottfried. Based upon the record, the Court has determined to strike the Plaintiff's pleadings. The Court first addresses threshold issues regarding the legal standard governing a motion to strike sham pleadings, and Constitutional issues raised by the Plaintiff in arguing that this proceeding violates her right of access to the Courts, which is of course guaranteed by the Florida Constitution. Simply stated, not every litigant must be afforded the right to a trial by jury. As the Florida Supreme Court observed in 1934, in what appears to be the first discussion approving the striking of sham pleadings, "Its exercise is not objectionable as infringing the right of trial by jury, for the right ... to a jury trial depends upon there being a real issue to be tried. The Court has power to determine as a matter of judicial cognizance whether there is such an issue..."

Rhea v. Hackney, 157 So. 190 (Fla. 1934). Courts have always had
the inherent power to prevent an abuse of their processes, and may peremptorily dispose of a cause of action that is frivolous or wholly vexatious. Id. at 72. Where the allegations contained in a pleading are in fact untrue and where the record reveals they are

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of such character that they could not have been proven at trial, the Court may exercise this power. Id. at 70. Ultimately, this Court must determine whether Plaintiff's complaint is demonstrably false in so many respects that it would be inappropriate to allow Plaintiff to proceed with her complaint. In that regard, this case may be unique, given the sheer quantity and quality of the record evidence from the underlying divorce proceedings, and the extraordinary amount of sworn pleadings and testimony, which contradict in large part the essential allegations that underlie the vast majority of the Plaintiff's claims in this matter. The records of those proceedings utterly belie the Plaintiff's contention that Mr. Kutner and his firm frustrated the Plaintiff's ability to settle her case, and that he artificially prolonged the proceedings in order to ensure a greater fee. In fact, the record of the proceedings and findings by both the Family Court and the Third District Court of Appeal readily reflect that the proceedings would have been completed at some point in February of 2008, but for Mr. Gottfried's decision to flee to Israel, while simultaneously taking the vast majority of the marital assets with him. Aside from the fact that the Court has determined that the findings of the Family Court and the decision by the Third District Court of Appeal establish the law of the case, for the purpose of this proceeding, the record that was presented during the evidentiary hearing also demonstrates with equal clarity that Mr. Gottfried single-handedly frustrated his wife's ability to resolve the Family Court proceedings, and that he

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was intent upon ensuring that the, case would only be settled on his terms, and his terms alone. The Plaintiff's allegations were supported almost verbatim by . an affidavit supplied by Ms. Keren in opposition to Defendant's Motion to Strike the Complaint. That testimony is disputed in material part by numerous instances of testimony in the divorce proceedings which flatly contradict Ms. Keren's present testimony as well as the merits of the entire claim. In many instances, while on the witness stand during the evidentiary hearing on the Sworn Motion to Strike, Ms. Keren was forced to concede that she had either lied under oath - both during Court proceedings and to the Social Service Agencies, as well as the Police-- or otherwise concede that allegations of her complaint were not supported by the record. No jury should be asked to resolve those contradictions,' particularly where Ms. Karen was successful in securing affirmative relief before the Family Court based upon her testimony in those proceedings. Although Plaintiff argues that Defendant's Motion to Strike is merely a "he said/she said" swearing match, and that the Court may not strike the Plaintiff's pleadings based on the mere contradictory testimony of Maurice Kutner and Claudia Capriles, this Court finds that there is sufficient record evidence from the underlying divorce case to flatly contradict the present contentions of Ms. Karen without any actual need to refer to the testimony of Mr. Kutner and Ms. Capriles.

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In other words, the Court has determined not to allow the Plaintiff to advance theories of liability in this matter based upon her own sworn testimony and the affidavit which she filed in opposition to the Defendant's Motion to Strike, where those allegations and that testimony are totally at odds with sworn pleadings and testimony in the underlying Family Court proceedings. This is particularly true where Ms. Keren was able to secure formal relief against her husband in those same proceedings based upon sworn motions and testimony, which she now attempts to refute, or otherwise claims was the product of her "robotic repetition" of theories that were actually advanced by Mr. Kutner, but which she did not otherwise espouse. The Court will not condone a cause of action that is predicated upon this type of outright fabrication, which permeates the very essence of the Plaintiff's claims against Mr. Kutner and his Firm. See Blumberg v. USAA Casualty Insurance Company, 790 So. 2d 1061 (Fla. 2001). "Judicial estoppel is an equitable doctrine that is used to prevent litigants from taking totally inconsistent positions in separate judicial, including quasi-judicial, proceedings." Smith v. Avatar Properties, Inc., 714 So. 2d 1103, 1107 (Fla. 5th DCA 1998). According to the Supreme Court decision in Blumberg, the doctrine of judicial estoppel prevents a party from "'making a mockery of justice by inconsistent pleadings,'" or "'playing fast and loose with the Courts......' Blumberg, supra at 1066, citing American National Bank v. Federal Deposit Insurance Corporation, 710 F.2d 1528, 1536 (11th Cir. 1983) and Russell v. Page 5 of 15


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Rolfs, 893 F.2d 1033, 1037 (9th Cir. 1990). In

Blumberg, the

Supreme Court noted that judicial estoppel may be asserted by an individual who is not formally a party to the underlying proceedings, citing to its prior decision in Zeidwig v. Ward, 548 So.2d 209 (Fla. 1989). Furthermore, applicable law makes it clear to this court that a defendant is not required to negate every single contention in a plaintiff's complaint to justify striking a Plaintiff's pleadings; rather, it is sufficient to demonstrate that the Plaintiff's cause is permeated by demonstrably false misrepresentations which go to the heart of the claim. The Court finds that the clear discrepancies between the record of the divorce proceedings and the allegations contained in Ms. Keren's complaint meet this standard, as set forth in the following non-exhaustive list of examples of contentions which are flatly contradicted by the record: 1. The Complaint is replete with allegations regarding the purported depletion of the marital estate, which is blamed on Mr. Kutner's alleged effort to artificially prolong the divorce litigation. In sworn testimony during the divorce fact, proceedings and exhibits that were introduced into evidence completely belie the Plaintiff's contention that the assets were depleted because of anything done by Mr. Kutner. In fact, the evidence clearly reflects that Mr. Gottfried himself spent extraordinary sums of money after his wife filed for divorce, liquidating the diamond inventory maintained by his jewelry company, without replacing those diamonds. Notwithstanding testimony and exhibits to that effect from the underlying divorce proceedings, the evidence nevertheless reflects that the net marital estate was in excess of $3 million at the time that the trial of the divorce proceedings commenced in January of 2008. Similarly, while Plaintiff alleges that . Mr. Gottfried necessarily spent exorbitant sums of money to pay his attorney's Page 6 of 15


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fees, due to Mr. Kutner's actions, the evidence unequivocally reflected that Mr. Gottfried's fees were paid by his father. And not withstanding multiple days of testimony, the Plaintiff was unable to produce any competent evidence to contradict the suggestion that Mr. Gottfried alone was responsible for the depletion of the marital assets. 2. In fact, the Family Court determined that the proceedings were prolonged artificially by Mr. Gottfried's inexcusable decision to leave the country after two days of trial, and before the parties could complete a final day of trial in February of 2008. That determination was affirmed by the Third District Court of Appeal, which refused to reverse Judge Lando's assessment of some $92,000 in attorney's fees against Mr. Gottfried and in favor of his wife, due to his misconduct. The Court believes that this finding cannot be challenged in these proceedings, simply because Mrs. Gottfried now wishes to take a contrary position. Mrs. Gottfried repeatedly alleges that Mr. Kutner frustrated efforts to settle the case. Her allegations are specifically refuted by the record. Most telling are her allegations and testimony with regard to the so-called "mediation efforts" by Robert Buchwald. In her complaint in this matter and in her sworn testimony before the court, Mrs. Gottfried contends that Buchwald's efforts to act as a mediator - after her husband fled to Israel were rebuffed by Mr. Kutner, and.that Kutner would not permit a good faith effort to negotiate a settlement at that time. In fact, the record from the Family Court proceedings reflect that Mrs. Gottfried filed a Sworn Motion with the court after her husband left for Israel, seeking affirmative relief, including her husband's incarceration. At that time, she testified that her husband refused to negotiate with her after making a preliminary "settlement offer" through Buchwald which did not take into consideration the full extent of the family's marital estate, child support or alimony. No reasonable construction of the record of the underlying proceedings should allow Plaintiff's belated attempt to characterize Mr. Buchwald's efforts on behalf of Mr. Gottfried as a "good faith attempt at mediation." This represents just one More example of a gross distortion of the record,


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which necessarily underlies all of the Plaintiff's principal allegations in these proceedings. 5. Paragraphs 40, 43, 44 and 45 of Plaintiff's complaint allege that Kutner intentionally drafted a settlement agreement in May of 2008 that would be easily voidable, and subsequently "set out to prevent David from complying with the agreement" so that he could have David arrested, ensuring that certain diamonds would be in the United States to pay his fees, although Kutner knew David was in the process of honoring the agreement, and that the diamonds were merely held up due to a Jewish holiday. Notwithstanding that under questioning Karen was unable to provide examples of how Kutner supposedly prevented David from complying with the agreement, Karen herself filed a sworn motion in the divorce action attesting that David had expressly advised her that he would not honor the marital settlement agreement. Thus, the implication that David was somehow in the process of lawfully complying with the order, but was hamstrung by Kutner's overzealous tactics to "prevent" his compliance, is demonstrably false. In that regard, the Court also feels compelled to note that Mrs. ' Gottfried personally disavowed the settlement with her husband while under oath before Judge Lando. As a result, her husband was arrested and incarcerated. She should not now be allowed to aver this was somehow due to the deliberate misconduct of her counsel. Notwithstanding the allegations in the Complaint, and the suggestion that Ms. Keren was under the control of her attorneys at all times, the record reflects that she made the unilateral decision to settle the marital dissolution case in May of 2008 and then again in August of 2008. In fact, Ms. Keren's own testimony established that she chose to avoid her attorneys during this period because she was afraid they would talk her out of the settlement, and that David instructed her to avoid them for this very reason. The complaint alleges that after repeatedly telling Sagit to "roll the dice" and turn down numerous settlement offers made by David, Kutner finally advised Sagit in July 2008 that she would be left with nothing if the case went to trial, and that she had better settle and finish the matter because "you never know how the judge will rule in a trial." Not only is this contention contradicted Page 8 of 15




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by Plaintiff's most recent memorandum to the Court which states, for the first time in this litigation, that Keren settled because she was afraid that Regions Bank was about to foreclose on the diamonds, but it is further contradicted by testimony at the final hearing in the divorce case. A review of those transcripts reflects (1) that Kutner was willing and able to try the last day of the case, and was obviously uncomfortable with the process which led to the settlement, and (2) that Judge Lando, who took pains to explain to Sagit that she was entitled to more, was inclined to rule favorably towards Keren if she had simply continued with the trial and not settled independently with David. Judge Lando also rebuffed the efforts by Regions Bank to intervene in the case. 8. Although the complaint alleges that Kutner "pawned off" the case on Claudia Capriles late in the litigation because he had greater interest in more important clients, and implies that Capriles was not sufficiently competent to handle the representation, the testimony of Capriles, Kutner, Keren, the billing records of the firm, and transcripts from various hearings prove conclusively that Capriles was heavily involved in the litigation from the very beginning, and that it was Capriles who accompanied Keren to the domestic violence intake center at the very beginning of the representation. Keren's allegation, therefore, whether "palpably false" or not, is a gross misrepresentation of the facts that should not be tolerated by this Court. While the preceding specific examples refute some permanent themes in the plaintiff's complaint, the combined effect of the falsehoods demonstrate that the entire substance of Keren's complaint is a sham, with no basis in truth. The overarching theme of Keren's case is that she experienced a protracted, bitter, drawn out, and generally unpleasant divorce from her husband; this court can agree with that portion of Plaintiff's claim. What the court can not agree with is the Plaintiff's attempt to blame her own
knowing conduct and the actions of her former husband on her

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divorce attorney, Maurice Kutner. If one was to believe the contents of the complaint, the only obstacle between Keren and an amicable divorce from David was Maurice Kutner; yet the record reveals that the acrimony which was purportedly fomented by Kutner predated his appearance as counsel in this matter by quite some time. This court takes judicial notice of the statements of Family Court Judge Maxine Cohen Lando, who as the presiding judge in the underlying divorce, described David's behavior as follows: "Based upon the history of this case, the husband's failure to honor the terms of recently executed Marital Settlement Agreement, the husband's prior threats to leave the U.S. to Israel with the parties' minor child and the Husband's willful violations of prior orders of this Court, The Court issues this 2 nd civil writ of bodily attachment." As was noted earlier, it has already been determined by the Third District Court of Appeal as a matter of law in this case that approximately $90,000 in attorneys fees, and the attendant delays in litigation that accompany those fees, are the sole fault of David Gottfried, and therefore simply can not be attributed to Defendant Kutner. A thorough review of the underlying record further reveals that many of the contentions pled in the Plaintiff's complaint are simply too illogical to support any inferences in her favor for purposes of this motion. Although Plaintiff's counsel has correctly stated that the court is to draw all inferences in favor

of the nonmoving party when Considering a dispositive motion, the

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court is not required to draw inferences that are either unreasonable, illogical, or that do not accord with human experience. See VoeIker v. Combined Ins. Co. Of America, 73 So. 2d 403, 406 (Fla. 1954). AlthoUgh not necessarily dispositive, this court must question either the accuracy of Ms. Keren's memory or her credibility, where she appeared to have no memory whatsoever of any event that tended to be exculpatory of Kutner, while simultaneously protesting that the events in question happened two to three years ago, where she was able to recall with remarkable precision minute details of events which tended to paint Kutner in a negative light. Similarly, while Ms. Keren was generally unable to answer env of the questions posed by Mr. Kutner's counsel without a protracted explanation, Or the suggestion that she did not understand a question, she appeared to respond remarkably well to questions posed by her own counsel during cross-examination, which were no more or less complicated or confusing than any of the questions that were posed by Mr. Kutner's counsel. The degree of direct contradiction between the record of the divorce , case, and the allegations raised in the complaint are sufficient to justify striking this Complaint as a sham pleading. However, upon considering the authority submitted by Defendant on judicial estoppel, and in part delicto, this Court also holds that Keren is precluded from asserting positions here that are either (1) contrary to positions she had already taken on the record in the divorce Court, or (2)based on the contention that positions

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asserted before the family Court in the dissolution proceedings were based on Kutner' instruction to lie to the Court in the divorce proceedings. See Blumberg v. USAA Casualty Insurance Company, 790 So. 2d 1061 (Fla. 2001) (Expanding scope of judicial estoppel doctrine while re-iterating that doctrine is designed to prevent parties from making a mockery of justice by asserting inconsistent positions in different lawsuits); Turner v. Anderson, 704 So.2d 748 (Fla. 4 th DCA 1998.) Given the sheer quantity of allegations that are either (1) demonstrably false when compared to the record, or (2) based on positions that Keren would be legally precluded from asserting at trial, the Court finds that this case meets the admittedly high burden set forth in Rhea v. Hackney and other cases discussing summery disposition of frivolous cases. The court also finds that in light of the evidence presented at the evidentiary hearing, that the Plaintiff's case is subject to dismissal for fraud upon the Court, for the same policy reasons that support striking the complaint as a sham pleading. While this court is conscious that such a remedy should be employed with restraint, and is reserved only for the most egregious misrepresentations, Florida Courts including the Third District Court of Appeal have consistently recognized a trial Court's ability to dismiss claims which attempt to mislead the Court concerning material issues that go to the very heart of the claim. Where a plaintiff perpetrates a fraud that "permeates the proceeding," dismissal of the entire case is proper. See Austin v. Page 12 of 15


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Liquid Distributos, Inc., 928 So. 2d 521 (Fla. 3d 2006); Cabrerizo

V. Fortune International Realty, 760 So. 2d 228 (Fla. 3d DCA 2000).

Whether a pleading is stricken because it is demonstrably false or because it represents a fraud upon the Court, the policy justifications, and result reached, should be the same. The integrity of the civil litigation process depends on truthful disclosure of facts. A system that depends upon an adversary's ability to uncover falsehoods is doomed to failure, which is why such conduct must be discouraged in the strongest possible way. Cox v. Burke, 706 So. 2d 43, 47 (Fla. 5th DCA 1998). See Austin v. Liquid Distributors, Inc., 928 So. 2d 521 (Fla. 3d DCA 2006). This court has an obligation to deter fraudulent, frivolous, vexatious, or palpably false claims. It is apparent that.Ms. Keren's complaint is predicated on false and fraudulent allegations that go to the heart of the liability and damage issues in this case. This court will not turn a blind eye to such conduct. The only appropriate sanction, therefore, is the striking of Plaintiff's complaint. Defendants argue here that the claim itself is a sham, yet also ask this Court to dismiss portions of the claim because of the Plaintiff's inability to state a cause of action. The court does not feel that it needs to address that issue, given its determination that the entire complaint is permeated with demonstrably false allegations of fact which, when stricken, will leave the complaint devoid of any factual underpinnings whatsoever. In that regard, the court takes specific note of the fact that virtually every count of the Third Amended Comp laint are based upon

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CASE NO: 08-65074 CA 31 the same core facts, which are adopted and incorporated by reference throughout the Complaint. Finally, this court declines any invitation to make any rulings regarding the disposition of the charging lien filed by Kutner in the underlying dissolution proceedings. A charging lien is an 'equitable remedy to have costs and fees due an attorney for service in the suit secured to him in the judgment or recovery in that particular suit." Richman Greer Weil Brumbaught Mirabito & Christensen, P.A. v. Chernak, 991 So. 2d 875, 878 (Fla. 4th DCA 2008)(emphasis supplied). Generally, a summary proceeding in the "original action represents the preferred method of enforcing an attorney's charging lien." Baker & Hostetler, LLP V. Swearingen, 998 So. 2d 1158,1161 (Fla. 5th DCA 2008). Thus, it would be improvident for this court to assert jurisdiction over the charging lien, where jurisdiction has already been vested in the Family Court. See, Carman v. Guardianship of Potter, 768 So. 2d 1156, 1157 (Fla. 1st DCA 2000) (where attorney filed charging lien in one proceeding, could not file a subsequent charging lien for the same fees in another proceeding as original Court expressly reserved jurisdiction over the charging lien, which remained pending). See, e.g., Paramount Engineering Group, Inc. v. Oakland Lakes,



So. 2d 11, 13 (Fla. 4th DCA 1996). For the same reason, the court will not determine the count for rescission or the claim for declaratory relief. Those matters should be addressed uniquely by the Family Court at the time that it disposes of Kutner's charging lien.

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For all . of the foregoing reasons, this matter is dismissed with prejudice, with the exception of Counts VI and VII. Those counts of the complaint are dismissed without prejuace to the Plaintiff's right to raise those issues before the Family court, if appropriate. The Court reserves jurisdiction to assess attorney's fees and costs upon further motion and hearing before this Court. DONE AND ORDERED in Chambers at Miami-Dade County, Florida on this day of August, 2010.


R:\librvE Y\RV\OROROR\P - Gottfried v Rutner\RMR REV R.wPd

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