Developer’s Miami attorney ends up withdrawing motion that sought to remove Shumaker Loop as Knight’s representative
The filing this summer of an amended complaint in a Live Local Act lawsuit against Sarasota County that targeted Commissioner Tom Knight in an individual capacity — not just in his elected capacity — led to a series of more filings over the past week and, ultimately, the decision of the developer to cease a longstanding relationship with a Sarasota law firm, The Sarasota News Leader has learned.
Moreover, at one point this summer, the attorney representing Knight threatened legal sanctions against the developer’s attorney.
On Aug. 4, the Sarasota attorney representing Knight filed a motion in the 12th Judicial Circuit Court, seeking the dismissal of the developer’s claims against Knight.
The same day, the developer’s attorney filed an expedited motion to disqualify Knight’s attorney and the attorney’s legal colleagues as counsel for Knight.
Yet, exactly a week later — on Aug. 11 — the developer’s attorney filed a formal Notice of Withdrawal of the Aug. 4 motion.
Nonetheless, the withdrawal came hours after Knight’s attorney — Daniel J. DeLeo of the Sarasota firm Shumaker, Loop & Kendrick — filed a response to the disqualification motion. Subsequently, DeLeo sent a letter to Christopher G. Oprison, of the Miami firm DLA Piper LLP, who is the lead attorney for the developer, SITC Inc. (The registered agent for SITC is John “Jack” Cox III, president of Halfacre Construction Co. in Lakewood Ranch.) In that letter, DeLeo wrote that he believed Oprison had filed the withdrawal “because [he knew] it [was] not well taken and would certainly fail.”
Months earlier — in May — Oprison had filed SITC’s initial complaint against Sarasota County over the County Commission’s unanimous April 7 vote to implement a policy for county staff that declared no property in the county that is zoned for open use, residential or agricultural purposes can be used for a Live Local Act project. (See the related article in this issue.)
Then, on July 2, Oprison filed an amended complaint that specifically cited actions by Knight. Among them, Oprison contended that, just before SITC formally submitted its Live Local Act application to county staff — with its representatives already having discussed the plans with the staff — the County Commission modified the process that Live Local Act developers would have to follow. When SITC objected to that change, Oprison continued, “staff reportedly stated that the process was ‘continuing to evolve’ as staff explored purported ‘best practices.’ ”
However, based on staff’s actions, Oprison alleged that it appeared that “County officials were … attempting to run out the clock while legislative changes were pending.” He was referring to a 2026 bill in the Legislature that made it clear that property “intended to retain the open character of land, including, but not limited to, open space districts, open space recreation districts, open use estate districts, open use rural districts, and park and open space districts” could not be the site of a Live Local Act project, as the Bilzin Sumberg law firm of Miami explained it. That bill became law on July 1.
The SITC application involves property that is zoned Open Use Estate-1.
Further, Oprison contended that while SITC’s “application remained pending, Defendant Knight publicly expressed hope that [the above] new Live Local amendment would go into effect … and ‘give a lot of clarity to the community,’ reinforcing [SITC’s] understanding that County officials were attempting to delay pending applications until state-law changes could narrow or eliminate Live Local Act eligibility.”
As the News Leader has reported, Knight and Commissioner Joe Neunder have been the most vocal members of the county board in opposition to developers targeting county parcels with very low residential density standards for Live Local Act projects that would significantly increase that density.
‘An extraordinary conflict’
Then, on Aug. 4 attorney Oprison filed the motion seeking the removal of Shumaker Loop from representing Knight. In that, Oprison wrote, “This Motion arises from an extraordinary conflict. Shumaker has appeared in this action for Defendant Knight in litigation adverse to SITC. At the same time, it maintains an active, decades-long attorney-client relationship with Halfacre Construction Company … whose owner and sole principal and decision-maker, John J. Cox III, is also the sole owner, principal, and decision-maker for SITC.”
Orison added, “Through that longstanding relationship with Halfacre and Mr. Cox, Shumaker acquired confidential information concerning Mr. Cox’s business practices, litigation philosophy, and approach to dispute resolution. Shumaker now seeks to represent Defendant Knight in litigation where those very strategic considerations are directly at issue.”
“[T]he law does not permit Shumaker to continue” as Knight’s counsel in this litigation, Oprison contended. “That Shumaker never raised this potential conflict or sought a waiver prior to engagement by Defendant Knight bespeaks an intent (and very real risk) to capitalize on and leverage intelligence only obtained through candid, unguarded and un-chilled communications within the protective confines of a privileged relationship.”
Further, Oprison explained that, on July 14 — after Shumaker Loop had filed notice with the court that it would be representing Knight in the Live Local Act case — Shumaker Loop sent Oprison what Oprison referenced as a “Section 57.105 safe-harbor letter threatening sanctions … based on the claims asserted against Defendant Knight in his individual capacity.” He was referring to a Florida Statute that deals with legal action that is “not supported by the material facts necessary to establish the claim or defense; or … not be supported by the application of then-existing law to those material facts.”
Oprison included with his motion a copy of DeLeo’s letter, which, he wrote, “amounts to a frivolous and bad faith litigation tactic.”
Moreover, Oprison pointed out that a reporter with the nonprofit journalism organization Suncoast Searchlight interviewed both attorney DeLeo and Knight for an article about what Oprison later called the “Sanctions Letter.” Oprison noted that DeLeo told the reporter that he was “ ‘calling for sanctions to penalize’ [Oprison],” as well as SITC.
“The article further quoted the draft motion enclosed with the Sanctions Letter,” which confirmed that Knight and/or DeLeo had “disseminated and publicly promoted the threatened [sanctions action] immediately after serving it on [Oprison] and before it could lawfully be filed with the Court.”
Oprison characterized that conduct as “wholly inappropriate and [making] clear that Shumaker and Defendant Knight were seeking publicity and strategic leverage” instead of participating in what is known as the “confidential safe harbor process contemplated by Section 57.105 or attempting to resolve the issues in good faith.”
The Shumaker-Halfacre connection
Shumaker and its predecessor firm have been counsel for Halfacre “continuously since the 1980s,” Oprison’s motion for withdrawal of the firm as Knight’s counsel, added, noting, “Throughout that decades-long representation, Mr. Cox has served as Halfacre’s exclusive point of contact and corporate representative.”
On July 17, Oprison “identified [during a conferral of parties in the case] that Shumaker has a conflict that would need to be resolved,” he added in his motion. “Shumaker did not respond to that assertion,” he continued. “Nor did it take any action to address or cure the conflict.”
In fact, Oprison pointed out, Shumaker did not request a waiver from Halfacre or Cox “or even [acknowledge] the existence of the conflict.”
Oprison further wrote that he had sent DeLeo a letter on Aug. 3, “demanding Shumaker immediately withdraw from this case.”
The withdrawal of the SITC motion
Late in the morning of Aug. 11, Oprison filed the formal Notice of Withdrawal of his Aug. 4 expedited motion, noting that the action was “without prejudice.”
The latter term means that a revised form of the motion could be filed at a later date.
Oprison explained that he “has taken corrective action in an attempt to mitigate any continuing conflict by terminating with immediate effect all legal and business relationships with the Shumaker Firm per a letter of termination,” a copy of which he attached to the motion.
However, he continued, SITC “reserves the right to renew the Motion should it become apparent that the Shumaker Firm or Defendant Knight have used or relied upon any confidential information obtained through the prior attorney-client relationship concerning Mr. Cox, SITC, or any of their business interests.”
Seeking ‘an extraordinary remedy’
In DeLeo’s Aug. 11 response, on Knight’s behalf, to Oprison’s expedited withdrawal motion, DeLeo described that motion as “the extraordinary remedy of disqualifying Commissioner Knight’s chosen counsel based on a theory that has no foundation in Florida law.” He pointed out that SITC had conceded — “expressly and unequivocally — that it ‘is not a Shumaker client,’ nor has it … ever been one. Shumaker has never represented SITC, never billed SITC, never advised SITC, and never asserted any right on SITC’s behalf.”
Further, DeLeo wrote, Oprison’s “entire theory rests on the fact that Shumaker has a longstanding attorney-client relationship with [Halfacre Construction], a separate corporate entity, organized under the laws of Florida,” even though Cox “serves as the common owner and corporate representative of both Halfacre and SITC.”
The theory, DeLeo continued, “fails as a matter of law. Under Florida Rule of Professional Conduct 4-1.13” and a judicial precedent set by Florida’s Second District Court of Appeal, “when a lawyer represents an organization, the entity is the client, not its constituents or representatives. Any confidences Cox communicated to Shumaker were communicated in his capacity as Halfacre’s corporate representative; those confidences belong to Halfacre, the entity client, not to Cox individually and certainly not to SITC, a wholly separate corporation.”
DeLeo added, “Because SITC was never a ‘prior or current client’ of Shumaker, the Rules of Professional Conduct addressing the use of information to the disadvantage of another party simply do not apply.”
Then, citing the Second District Court of Appeal’s 2011 ruling in Frye v. Ironstone Bank— “the very case on which SITC principally relies” — DeLeo wrote, “ ‘[T]he Rules of Professional Conduct addressing the use of information to the disadvantage of another party only contemplate situations where information is gained from and used against a prior or current client.’ ”
He added, “Plainly, SITC attempts to attach an irrefutable presumption to prevail on its Motion where no such presumption could exist under Florida law. No irrefutable presumption of shared confidences can attach where no attorney-client relationship ever existed. SITC’s Motion should be summarily denied.”
Moreover, in response to Oprison’s report of his having raised the conflict issue on July 17, DeLeo explained that one of his Shumaker associates, Arianna Hernandez, “[invited, via email] a phone call to discuss the issues … [Oprison] never responded to this email nor called [DeLeo].”