Smith, Taylor, Bergstresser, Dymond & Benton
Subject: Smith, Taylor, Bergstresser, Dymond & Benton
Date: 12 Mar 2000 00:00:00 GMT
Message-ID: <8ah1oq$i1k$1@nnrp1.deja.com>
New Orleans Times-Picayune April 12, 1962 S2-P23
Cuba is Seeking Judgment Void
Suit Grows out of Seizure of Vessel
The Republic of Cuba, through a New Orleans attorney, filed a suit Wednesday [11th] in federal district court seeking to have annulled a $5000,000 judgment against the Cuban government which was recorded in civil district court on April 12, 1962.
The suit was filed by Benjamin E. Smith against the Mayan Line, United States Marshal Victor H. Wogan, Llewellan Scanlon, civil sheriff for the parish of Orleans, and Thomas Buckley, clerk of the civil district court.
The judgment grew out of the seizure here of the SS Henrich Schulte on Nov. 15, 1960 to satisfy a claim of $1,0006,550.81 by the Mayan Line against the Cuban government. Cargo aboard the ship [w]as sold to satisfy the claim, the suit states.
It is alleged that on April 12 [1961] Cuba allegedly appeared in civil district court through attorney F. Irvin Dymond who had been associated in the case by the Miami, Fla., law firm of Taylor and Bergstresser, and a stipulation was entered with counsel for the Mayan Line compromising the claim for $500,000.
The suit filed Wednesday claims that Cuba at no time employed Dymond or the Miami firm and that the stipulation was a derogation of the Cuban rights and made without authority.
[end of article]
Ben Smith, the attorney for Cuba, was later one of the three SCEF defendants. It turns out that Taylor and Bergstresser at that time employed an investigator named Sam Benton, who I'm guessing may be the same guy arrested at the McLaney arms cache:
PRICHEC, a Cuban entity, known as Primero Central Hidroelectrica Cabana, Institute of National Agrarian Reform, and Republic of Cuba, Petitioners, v. TECON CORPORATION, a Delaware corporation, Respondent.
Nos. 61-734, 61-735.
District Court of Appeal of Florida, Third District.
139 So. 2d 712; 1962 Fla. App. LEXIS 3512
April 10, 1962.
COUNSEL: [**1]
Carr & Warren and Sam Daniels, Miami, for petitioners.
Taylor & Bergstresser and Kenneth L. Ryskamp, Miami, for respondent.
JUDGES: Before PEARSON, TILLMAN, C.J., and CARROLL and HENDRY, JJ.
OPINION BY: CARROLL
OPINION: [*712] CARROLL, Judge.
By the two above styled petitions for certiorari which were consolidated by this court the Republic of Cuba and certain of its agencies, who were the defendants in a law action in the circuit court of Dade County, challenge the correctness of two orders of that court, one denying defendants' motion to disqualify the attorneys appearing for the plaintiff, and the other being an order denying their renewed motion for the same purpose.
The attorneys, Taylor and Bergstresser, represented Cuba and certain of its agencies in litigation in 1960 and as late as April, 1961. Thereafter, in June of 1961, they commenced this action, as attorneys for the plaintiff, resulting in a default and judgment thereon against the defendants for $1,447,483.10.
Jurisdiction over defendants was gained through acceptance of service of process by one Janu de Dios Tejada. As evidence [*713] of Tejada's status and authority to accept service, plaintiff's attorneys [**2] filed an affidavit of Sam Benton, employed as an investigator by said attorneys, whose information so given and used in the case sufficiently appears to have been acquired in and through his activities as an investigator for Taylor and Bergstresser while they represented Cuba.
There is now pending in the trial court a motion to vacate the judgment. Important to the determination of such motion is the question of whether Tejada was authorized to accept service for the defendants. The defendants contend he was without such authority. The knowledge of the plaintiff's attorneys, and of their investigator, bearing on this question, obviously gained through their representation of Cuba and its agencies, is information which, under the Canons of Ethics and established law, the attorneys and their employees may not use against the former client.
[...]
[end of excerpt]
More on the Mayan case:
REPUBLIC OF CUBA v. MAYAN LINES, S.A., the Civil Sheriff for the Parish of Orleans, Honorable Llewellyn J. Scanlon and the Clerk of the Civil District Court for the Parish of Orleans, Honorable Thomas S. Buckley
No. 789
Court of Appeal of Louisiana, Fourth Circuit
145 So. 2d 679; 1962 La. App. LEXIS 2459
September 4, 1962
SUBSEQUENT HISTORY: [**1]
Rehearing Denied October 29, 1962.
COUNSEL:
Benjamin E. Smith, New Orleans, for Republic of Cuba, plaintiff-appellant.
Cobb & Wright, Joseph V. Ferguson, II, New Orleans, for Mayan Lines, S.A., defendant-appellee.
George J. Haylon, New Orleans, for Civil Sheriff, Parish of Orleans, defendant-appellee.
Thomas Barr, III, New Orleans, for Clerk of Civil District Court, defendant-appellee.
JUDGES: Before LANDRY, RUSSELL and HUMPHRIES, JJ.
OPINION BY: LANDRY
OPINION:
[*680] LANDRY, Judge. The Republic Cuba instituted this action in the Civil District Court, Parish of Orleans, against Mayan Lines, S.A., a Panamanian Corporation; the Civil Sheriff of the Parish of Orleans, Llewellyn J. Scanlon; and the Clerk of the Civil District Court, Orleans Parish, Thomas S. Buckley, to annul a money judgment rendered in favor of Mayan Lines, S.A. in a previous action by said corporation against plaintiff herein. From the judgment of the trial court dismissing the present action upon an exception of lack of procedural capacity tendered on behalf of defendant, Mayan Lines, S.A., plaintiff herein, the Republic of Cuba, has taken this appeal.
It is believed that a narration of the events and circumstances [**2] leading to the present suit will afford a better understanding of the sole issue involved herein, which, as will hereinafter be shown is purely and simply a question of law.
On November 15, 1960, appellant herein, the Republic of Cuba, was named defendant in Suit Number 385 -- 779 on the docket of the Civil District Court for the Parish of Orleans, instituted against appellant by Mayan Lines, S.A., in which action said plaintiff sought judgment against defendant in a sum in excess of $ 1,000.000.00. Jurisdiction over the Republic of Cuba was obtained by attachment of various properties alleged to be owned by said defendant and located aboard a certain vessel then in the Port of New Orleans. Pursuant to a writ of attachment the property in question was taken into custody by the Civil Sheriff of the Parish of Orleans. The Republic of Cuba then appeared in the proceeding through a reputable local attorney duly authorized to represent said sovereign therein and who, on behalf [*681] of the Cuban Government, filed an exception to the Court's jurisdiction perdicated upon a plea of sovereign immunity. Subsequently the Republic of Cuba, through its said attorney, moved that its [**3] exception be dismissed, admitted some of the indebtedness claimed by plaintiff and ultimately confected a compromise of plaintiff's claim in the form of a stipulation appearing in the record of said former suit. The stipulation in question provides that plaintiff Mayan Lines, S.A. agreed to reduce its claim to $ 500,000.00; that the property of defendant under attachment be sold; and, after payment of costs incurred in the suit, the balance remaining in the hands of the Civil Sheriff be divided on a pro rata basis of 25% To the Republic of Cuba and 75% To plaintiff Mayan Lines, S.A. During the pendency of the proceeding, various parties filed actions in the State and Federal Courts attaching the interest of Mayan Lines, S.A. in the aforesaid claim and judgment. Each of said parties were duly represented by counsel who participated in the discussion which preceded the preparation and execution of the stipulation of compromise hereinbefore mentioned. On the basis of the aforesaid stipulation, judgment was rendered in the court below on April 12, 1961, in favor of plaintiff Mayan Lines, S.A. and against defendant Republic of Cuba incorporating therein all of the provisions of the [**4] aforementioned stipulation. The Republic of Cuba did not timely appeal said judgment either suspensively or devolutively.
In essence the instant action is one by the Republic of Cuba to annul and set aside the judgment rendered against it April 12, 1961, in favor of Mayan Lines, S.A., on the ground of fraud, error and ill practice, the asserted nature of which is not essential to a disposition of the sole issue before this Court.
[...]
'The only evidence of representation in this record is a document dated 'Havana, October 27, 1961, addressed 'TO WHOM IT MAY CONCERN',' wherein it is stated that Benjamin E. Smith, Esq., of New Orleans, Louisiana, is authorized to represent the Republic of Cuba, and which document is reputed to be signed by Raul Roa, on behalf of the Ministry of Foreign Affairs.[']
[...]
[end of excerpt]
Taylor and Berstresser also represented Cuba in the Florida part of the Harris Advertising case mentioned below. Charles Ashmann is mentioned in the Turner & Hinckle (_Deadly Secrets_) book and in Nodule 10 on the Weberman site. He was a lawyer for Interpen.
New York Times September 16, 1960 p8
Writ Served on Cuban Airliner
The $3,500,000 luxury airliner Britannia of the Cubana Airlines was seized here yesterday by Queens deputy sheriffs on a writ of attachment issued by Supreme Court Justice Henry Epstein.
The seizure at New York International Airport, Idlewild, Queens was made in connection with a suit brought by the Harris Outdoor Advertising of Miami, Fla., against the Republic of Cuba, owner of the line, to recover $237,000 for loss advertising.
Action was taken after Bernard M. Bloom, a lwayer, obtained the writ on behalf of the advertising company's Miami counsel, James G[u]ilmartin and Charles Ashmann.
At Mr. Bloom's office last evening it was said the Miami law firm had taken similar action there recently.
[...]
New York Times September 22, 1960 p14
Seized Airplane Can Fly to Cuba
FAA Says Craft Held in Stock Suit Will Get Idlewood Clearance on
Request
[...]
Mr. Lambert [Cubana attorney] said that on Tuesday an earlier seizure of two Cubana planes had been voided by a ruling of Federal Judge Edward J. Dimock. A Miami advertising agency had contended that the Cuban Government owed it money.
[end of excerpts]
HARRIS AND COMPANY ADVERTISING, INC., a Florida corporation, Appellant, v. REPUBLIC OF CUBA, Appellee.
No. 60-412.
District Court of Appeal of Florida, Third District.
127 So. 2d 687; 1961 Fla. App. LEXIS 2967
March 2, 1961; Rehearing Denied March 24, 1961.
COUNSEL: [**1]
Guilmartin & Schneiderman, Miami, for appellant.
Bergsresser & Taylor, Miami, for appellee.
OPINION BY: BARNS
OPINION: [*688] BARNS, PAUL D., Associate Judge.
The appellant-plaintiff, Harris and Company Advertising, Inc., brought an action in assumpsit against the appellee-defendant, Republic of Cuba, and procured the issuance and execution of various writs of attachment against chattels of the defendant and attachments by garnishment of debts owing the defendant by various garnishable defendants. The action was in personam but the remedy sought was in rem; hence a quasi-in-rem action.
Thereafter, a pseudo motion to dismiss was filed on July 15, 1960; and motions to strike said motion to dismiss were filed July 26, 1960. On July 26, 1960, plaintiff's attorneys gave notice of a hearing of all pending motions, said hearing to be on July 27th. At said hearing, the judge sustained the motion to dismiss and overruled the motions to strike the motion to dismiss, and orders were entered accordingly.
After the conclusion of the foregoing hearing, an ex parte motion to dissolve excessive attachments was presented to the judge by one not a party to the action, and an order was made, [**2] on July 27, 1960, dissolving all attachments and garnishments other than the attachment by garnishment of some $98,000 in United States currency held by the Florida National Bank & Trust Company.
Thereafter, on August 3, 1960, the plaintiff entered its appeal from (1) the order dismissing the action; (2) the order dissolving writs of attachment and garnishment as excessive; and (3) the order denying plaintiff's motions to strike the motion to dismiss. Of course, the latter order was not an appealable order, but it was assigned as error in the appeal from the judgment of dismissal. The other two orders were also assigned as error.
Before proceeding to treat the questions of jurisdiction and immunity of the Republic of Cuba, we will address ourselves to the pseudo motion to dismiss. The motion is as follows:
"Motion to Dismiss by Virtue of Special Appearance Solely to Contest Jurisdiction
"Comes now Bergstresser & Taylor, by and through Abelardo A. Leon Blanco, Consul General of the Republic of Cuba, a foreign nation, and alleges:
"(1) That the above styled cause is not within the jurisdiction of this Court without the consent of the Defendant;
"(2) That the above styled [**3] Court has no jurisdiction of or over the defendant, a foreign nation;
"(3) That any jurisdiction of the defendant by and before this Court be and the same is hereby expressly denied, refuted, [*689] and in addition thereto, the defendant specifically alleges the immunity of a foreign nation from being made a defendant in an action of this kind, specifically asserting said immunity herein.
"Further that all writs of attachment or garnishment specifically levied against the defendant Republic of Cuba or its privileged assets by virtue of the above, be and the same be forthwith dissolved.
"Bergstresser & Taylor
"By /s/ Richard G. Taylor"
It will be noted that said motion does not purport to be made on behalf of the Republic of Cuba. Neither does the body of the motion move for anything on behalf of anyone. Doubtless, the lower court judge treated the title as a part of the motion. It is not clear who appears on behalf of whom; the law firm for the consul or the consul for the law firm. In either case, the Republic of Cuba is not sufficiently represented to present questions of immunity for reasons hereinafter stated, and the lower court erred in not striking the [**4] motion.
The consul of a foreign country is not entitled under general international law, as well as under Consular Convention between Cuba and the United States of 1926, 44 U.S. Statutes 2471, and the Pan-American Consular Convention of 1932, 47 U.S. Statutes 1976, to represent the government of Cuba; such authority being exclusively within the privilege of diplomatic agents received as such by the United States. The local consul was unable to authorize the law firm to do something that he lacked authority to do. The claim of sovereign immunity is usually reserved to diplomatic representatives of the country involved, combined with suggestions to be obtained through the Department of State addressed to the court.
[...]
[end of excerpt]
There are obviously some gaps and uncertainties in this story, but I thought that I'd post what I'd found so far, FWIW.
Jerry Shinley
Sent via Deja.com http://www.deja.com/
Before you buy.