129-gottfried v kutner-order of dismissal with prejudice

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IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT IN AND FOR MIAMI- DADE COUNTY, FLORIDA CASE NO: 08-65074 CA 31 SAGIT TOVA GOTTFRIED, an individual, CHAIN DAVID GOTTFRIED, an individual, DANIEL GOTTFRIED and STEFANIE GOTTFRIED, minor children by and through their natural guardians SAGIT TOVA and CHAIN DAVID GOTTFRIED, Plaintiffs, VS. MAURICE JAY KUTNER, an individual, MAURICE JAY KUTNER AND ASSOCIATES, P.A., a Florida Professional Association, Defendants. ORDER OF DISMISSAL WITH PREJUDICE 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 of Mrs. Gottfried's deposition testimony in Page 1 of 15

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Page 1: 129-Gottfried v Kutner-Order of Dismissal With Prejudice

IN THE CIRCUIT COURT OF THE 11THJUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA

CASE NO: 08-65074 CA 31

SAGIT TOVA GOTTFRIED, an individual,CHAIN DAVID GOTTFRIED, anindividual, DANIEL GOTTFRIED andSTEFANIE GOTTFRIED, minor childrenby and through their natural guardiansSAGIT TOVA and CHAIN DAVIDGOTTFRIED,

Plaintiffs,VS.

MAURICE JAY KUTNER, an individual,MAURICE JAY KUTNER ANDASSOCIATES, P.A., a FloridaProfessional Association,

Defendants.

ORDER OF DISMISSAL WITH PREJUDICE

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 of Mrs. Gottfried's deposition testimony in

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CASE NO: 08-65074 CA 31

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 haspower 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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CASE NO: 08-65074 CA 31

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 2003, 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. Keren 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 divorcecase to flatly contradict the present

contentions of Ms. Keren 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.

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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 regardingthe purported depletion of the marital estate,which is blamed on Mr. Kutner's alleged effort toartificially prolong the divorce litigation. Infact, sworn testimony during the divorceproceedings and exhibits that were introduced intoevidence completely belie the Plaintiff'scontention that the assets were depleted because ofanything done by Mr. Kutner. In fact, the evidenceclearly reflects that Mr. Gottfried himself spentextraordinary sums of money after his wife filedfor divorce, liquidating the diamond inventorymaintained by his jewelry company, withoutreplacing those diamonds. Notwithstandingtestimony and exhibits to that effect from theunderlying divorce proceedings, the evidencenevertheless reflects that the net marital estatewas in excess of $3 million at the time that thetrial of the divorce proceedings commenced inJanuary of 2008. Similarly, while Plaintiffalleges that . Mr. Gottfried necessarily spentexorbitant sums of money to pay his attorney's

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fees, due to Mr. Kutner's actions, the evidenceunequivocally reflected that Mr. Gottfried's feeswere paid by his father. And not withstandingmultiple days of testimony, the Plaintiff wasunable to produce any competent evidence tocontradict the suggestion that Mr. Gottfried alonewas responsible for the depletion of the maritalassets.

2. In fact, the Family Court determined that theproceedings were prolonged artificially by Mr.Gottfried's inexcusable decision to leave thecountry after two days of trial, and before theparties could complete a final day of trial inFebruary of 2008. That determination was affirmedby the Third District Court of Appeal, whichrefused to reverse Judge Lando's assessment of some$92,000 in attorney's fees against Mr. Gottfriedand in favor of his wife, due to his misconduct.The Court believes that this finding cannot bechallenged in these proceedings, simply becauseMrs. Gottfried now wishes to take a contraryposition.

3. Mrs. Gottfried repeatedly alleges that Mr. Kutnerfrustrated efforts to settle the case. Herallegations are specifically refuted by the record.Most telling are her allegations and testimony withregard to the so-called "mediation efforts" byRobert Buchwald. In her complaint in this matterand in her sworn testimony before the court, Mrs.Gottfried contends that Buchwald's efforts to actas a mediator - after her husband fled to Israel -were rebuffed by Mr. Kutner, and that Kutner wouldnot permit a good faith effort to negotiate asettlement at that time. In fact, the record fromthe Family Court proceedings reflect that Mrs.Gottfried filed a Sworn Motion with the court afterher husband left for Israel, seeking affirmativerelief, including her husband's incarceration. Atthat time, she testified that her husband refusedto negotiate with her after making a preliminary"settlement offer" through Buchwald which did nottake into consideration the full extent of thefamily's marital estate, child support or alimony.No reasonable construction of the record of theunderlying proceedings should allow Plaintiff'sbelated attempt to characterize Mr. Buchwald'sefforts on behalf of Mr. Gottfried as a "good faithattempt at mediation." This represents just onemore example of a gross distortion of the record,

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which necessarily underlies all of the Plaintiff'sprincipal allegations in these proceedings.

5. Paragraphs 40, 43, 44 and 45 of Plaintiff'scomplaint allege that Kutner intentionally drafteda settlement agreement in May of 2008 that would beeasily voidable, and subsequently "set out toprevent David from complying with the agreement" sothat he could have David arrested, ensuring thatcertain diamonds would be in the United States topay his fees, although Kutner knew David was in theprocess of honoring the agreement, and that thediamonds were merely held up due to a Jewishholiday. Notwithstanding that under questioningKeren was unable to provide examples of how Kutnersupposedly prevented David from complying with theagreement, Keren herself filed a sworn motion inthe divorce action attesting that David hadexpressly advised her that he would not honor themarital settlement agreement. Thus, theimplication that David was somehow in the processof lawfully complying with the order, but washamstrung by Kutner's overzealous tactics to"prevent" his compliance, is demonstrably false. Inthat regard, the Court also feels compelled to notethat Mrs. Gottfried personally disavowed thesettlement with her husband while under oath beforeJudge Lando. As a result, her husband was arrestedand incarcerated. She should not now be allowed toaver this was somehow due to the deliberatemisconduct of her counsel.

6. Notwithstanding the allegations in the Complaint,and the suggestion that Ms. Keren was under thecontrol of her attorneys at all times, the recordreflects that she made the unilateral decision tosettle the marital dissolution case in May of 2008and then again in August of 2008. In fact, Ms.Keren's own testimony established that she chose toavoid her attorneys during this period because shewas afraid they would talk her out of thesettlement, and that David instructed her to avoidthem for this very reason.

7. The complaint alleges that after repeatedly tellingSagit to "roll the dice" and turn down numeroussettlement offers made by David, Kutner finallyadvised Sagit in July 2008 that she would be leftwith nothing if the case went to trial, and thatshe had better settle and finish the matter because"you never know how the judge will rule in atrial." Not only is this contention contradicted

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by Plaintiff's most recent memorandum to the Courtwhich states, for the first time in thislitigation, that Keren settled because she wasafraid that Regions Bank was about to foreclose onthe diamonds, but it is further contradicted bytestimony at the final hearing in the divorce case.A review of those transcripts reflects (1) thatKutner was willing and able to try the last day ofthe case, and was obviously uncomfortable with theprocess which led to the settlement, and (2) thatJudge Lando, who took pains to explain to Sagitthat she was entitled to more, was inclined to rulefavorably towards Keren if she had simply continuedwith the trial and not settled independently withDavid. Judge Lando also rebuffed the efforts byRegions Bank to intervene in the case.

8. Although the complaint alleges that Kutner "pawnedoff" the case on Claudia Capriles late in thelitigation because he had greater interest in moreimportant clients, and implies that Capriles wasnot sufficiently competent to handle therepresentation, the testimony of Capriles, Kutner,Keren, the billing records of the firm, andtranscripts from various hearings proveconclusively that Capriles was heavily involved inthe litigation from the very beginning, and that itwas Capriles who accompanied Keren to the domesticviolence intake center at the very beginning of therepresentation. Keren's allegation, therefore,whether "palpably false" or not, is a grossmisrepresentation of the facts that should not betolerated 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 Voelker 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 any 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 pari 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 (Na. 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" 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

summary 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.

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Liquid Distributes, 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 Complaint are based upon

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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 Well Brumbaught Mirabito &

Christensen, P.A. v. Chernak, 991 So. 2c1 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, LEP 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, Ltd., 685

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 prejudice 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 on0c:trier

this day of Aulligt, 2010.

HONO

Conformed Copy

T 2 0 2010

LE JOHN SCHLEnNOECHLESINGERarcuitCourtJudge

cc: All Counsel of Record

H:\libravy\138\080905\p-GottEried v Kutner\RMX REV 3.wpd

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