Evidence Presented of Farah & Farah Misconduct

Case 3:17-cv-00192-MMH-MCR Document 87 Filed 01/28/20 Page 1 of 26 PageID 899
UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA
CASE NO. 3:17-cv-192-J-34MCR
JUANITA JOHNSON,
Plaintiff,
v.
PIER 1 IMPORTS (U.S.), INC.,
Defendant.
_____________________________________________/
PLAINTIFF’S AMENDED MOTION TO STRIKE PROPOSAL FOR SETTLEMENT

AND SUPPLEMENTAL RESPONSE TO DEFENDANT PIER 1 IMPORTS, INC’S
MOTION TO ENFORCE SETTLEMENT
Comes now, Plaintiff Juanita Johnson, and files this supplemental prayer for relief,
subsequent to the evidentiary hearing of August 5, 2019. In support thereof, Plaintiff cites to the
evidence and testimony from the subject evidentiary hearing, and respectfully requests this Court
grant Plaintiff’s Amended Motion to Strike the Subject Proposal for Settlement and/or deny Pier
1’s Motion to Enforce Settlement for the grounds stated herein.
Procedural History
1. On or about May 20, 2016, Plaintiff Juanita Johnson was injured when a defective
chair collapsed under her.
2. A lawsuit was filed by her prior law firm, Farah & Farah. It is erroneous and
insufficient. The prior Complaint fails to bring claims which may have been required under
Florida law, including claims of products liability, negligent assembly by the subject employee
and other theories which were omitted from the single count premises liability Complaint against
the wrong Defendant. The statute of limitations for her causes of action runs in 4 months.
3. The sole named Defendant is Pier 1 Imports, Inc. In a “Joint Stipulation to Amend
Case Style,” the parties agreed to merely amend the Caption to change the header to Pier 1,
Imports (US), Inc., but not to otherwise address the fact the incorrect Defendant was sued or
amend the parties in any way. (Docket item #7).
4. On February 5, 2018, Juanita Johnson executed a written contract alongside Farah
& Farah, that they “withdraw from negotiations entirely, unless I should so request, until
after my surgery on July 9, 2019.” Johnson’s testimony is entirely consistent with this signed
writing and there is no signed writing to the contrary. (Attached hereto as Exhibit “A.”).
5. Despite this very clear demand, Farah & Farah served a Proposal for Settlement
on June 7, 2018. See Amended Motion to Enforce (Docket item #34). Ms. Johnson testified this
was served without her knowledge and consent. Farah & Farah acknowledges she repeatedly told
them to withdraw said Proposal and was equivocal about whether to proceed with it during its
pendency.
6. Non-party Defendant Pier 1 Imports (U.S.), Inc., contends this matter was settled
by its acceptance of said Proposal for Settlement on or about June 21, 2018.
7. On or about August 31, 2018, an internal email was drafted at Farah & Farah to
be sent to defense counsel for the Defendant Pier I Imports. The email said, “in a joint effort to
move this forward to complete the resolution I was wondering if the motion could be filed on or
by Tuesday September 4, 2018.” This was presented as Exhibit HH at the evidentiary hearing.
8. Farah & Farah lawyer, Mr. Gadd claimed, under oath, this email was prepared by
a paralegal who had “just started the job there” and he elected not to send it, recognizing Ms.
Johnson was still the actual client and such a “joint effort” with defense counsel may violate a
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duty owed to his client, as it expressed a direct intent for the defense firm to seek enforcement of
a settlement his client maintained she did not authorize. p. 100, line 14 to p. 101, line 22.
9. Nevertheless, on the very same day, August 31, 2018, a “Motion to Enforce
Settlement” was filed by Pier 1 Imports (U.S.) The Motion failed to allege whether Defendant
conferred with opposing counsel before filing.
10. On September 11, 2018, an Amended Motion to Enforce Judgment was filed.
(Docket item #34). It indicated Plaintiff’s counsel, “has not agreed to the relief requested.”
11. On September 17, 2018, Plaintiff, Juanita Johnson terminated her lawyers, Farah
& Farah, P.A., and requested “all work-related products, reports, correspondence, medical bills,
etc., created by you and your firm while working on my case, promptly.” She did not receive her
entire file.
12. On September 17, 2018, Plaintiff, Juanita Johnson, filed a pro se pleading with
the court, disputing settlement and whether her underlying authority had been given to file and
maintain a Proposal for Settlement. (Docket item #35).
13. On September 17, 2018, Plaintiff, Juanita Johnson, filed a pro se pleading with
the court which presented separate claims against Farah & Farah, P.A. (Docket item #36). This
was ultimately stricken by the Court. (Docket item #39).
14. On September 24, 2018, Farah & Farah, PA filed a Motion to Withdraw as
Counsel, citing “irreconcilable differences.” It failed to mention it had been previously
terminated by its client. (Docket item #38). This Motion was denied for failure to comply with
the Rules. (Docket item #39).
15. Months later, on November 6, 2018, Farah & Farah finally amended its Motion to
Withdraw. (Docket item #42). This Motion was granted. (Docket item #43).
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16. On February 26, 2019, the undersigned firm appeared for Plaintiff Juanita
Johnson. (Docket item #55).
17. On April 9, 2019, the undersigned filed a Response to the Motion to Enforce the
Judgment and a Motion to Strike the subject Proposal for Settlement. (Docket item #60).
18. Farah & Farah, P.A. sought to intervene on May 24, 2019, but withdrew the
Motion on July 18, 2019, so it was not been subjected to the discovery served upon it.
19. Ultimately, an evidentiary hearing was held on August 5, 2019. A transcript
thereof has been filed at docket entry 85.
20. On August 8, 2019, new counsel for Juanita Johnson filed a Motion to
Amend/Correct the Complaint and for Remand to State Court. Plaintiff has filed a Motion for
Leave to Amend the lawsuit to add causes of action, add Defendants and properly name the
Defendant named in the current suit.
21. Based on the a series of pleading errors, omissions and neglect by Farah & Farah
including the failure to add indispensable parties, the failure to properly name the correct
Defendant, the failure to properly make claims under theories of products liability, the failure to
inform her of crucial aspects of her case and the lack of settlement consent, it appears Farah &
Farah sought a settlement, even despite written instructions to the contrary and admissions that
even the authority they claimed Ms. Johnson gave them was “equivocal” at times.
Proposal for Settlement Facially Invalid Under Florida Law
22. From its outset, Plaintiff has taken the position that the Proposal for Settlement
served by former counsel for Juanita Johnson was flawed in form and execution, as well as
authority.
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23. Florida Statute 768.79 is Florida’s “Offer of Judgment” statute. To be sufficient,
the “offer must: (a) Be in writing and state that it is being made pursuant to this section. (b)
Name the party making it and the party to whom it is being made…”
24. Let’s be clear. “PIER 1 IMPORTS, INC.” is the named party opponent. It was
sued, served and responded. It is a legally different entity than PIER 1 IMPORTS (U.S.), INC.
This entity is not named in any Complaint, never been sued and in a sign of pleading
incompetency, was merely substituted in the “Caption.”
25. PIER 1 IMPORTS (U.S.), INC. is not a party to this lawsuit, but yet a Proposal
for Settlement was served upon it by Farah & Farah and allegedly accepted. It is a legal fiction.
26. Pier 1 Imports, Inc. was not the proper party to this litigation. The proper
defendant in this action should be (but is not) Pier 1 Imports (U.S.), Inc. Pursuant to Rule 7.1 of
the Federal Rules of Civil Procedure Pier 1 Imports (U.S.) Inc. has certified in other cases, that
Pier 1 Imports (U.S.) Inc. “is a wholly owned subsidiary of Pier 1 Licensing, Inc., which is a
wholly owned subsidiary of Pier 1 Assets, Inc., which is a wholly owned subsidiary of Pier 1
Imports, Inc.” (Attached hereto as Exhibit “B”) They are legally distinct entities. 1
27. Amending a caption or case style does nothing to add a party not otherwise sued,
served or improperly omitted from the Complaint.
Proposal for Settlement Procedurally Invalid Under Florida Law
28. Additionally, the subject Proposal for Settlement merely cites Florida Statute
768.79 and “Rule 5 of the Federal Rules of Civil Procedure.”
29. Florida Statute 768.79 works in coordination with a Rule of Civil Procedure, Rule
1.442. Proposals for Settlement. Under 1.442(c), Form and Content of Proposal for
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This is not a name change, where changing the caption still reflects the proper person or entity, such as when a
woman marries and changes her name. This is a separate legal entity. A caption change cannot bring in a new party.
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Settlement, it is required that: “(1) A proposal shall be in writing and shall identify the
applicable Florida law under which it is being made.” Farah & Farah did not.
30. Rule 1.442 provides for the recovery of attorney's fees and other costs under
Florida law, which is different from Federal Rule 68, which provides for an award of only costs
in federal cases. Further, Rule 68 is different in that it states, “a party defending against a claim
may serve…” and is not a remedy held out to those prosecuting suits.
31. Because of the fee-shifting provisions of the Offer of Judgment statute and the
proposal-for-settlement rule are in derogation of Florida’s common law rule that each party pay
its own fees, the statute and rule are strictly construed. Fla. Stat. Ann. § 768.79; Fla. R. Civ. P.
1.442.
32. As to form, paragraph one of the subject Proposal for Settlement cites Section
768.79. Florida Statutes, but fails to cite Rule 1.442, Florida Rules of Civil Procedure. The state
rule requires identification of the law under which the proposal is being made. Instead, Federal
Rule 5 is cited. Federal Rule 5 is legally inapplicable here. It does not even allow fees.
33. The Rule clearly requires citation of the application of Florida law. The subject
proposal was not therefore complete in that regard.
Proposal for Settlement Lacked Requisite Authority
34. Inherent with offering settlement under a 30 day Proposal for Settlement is that
client authority be clear and consistent for the entirety of that 30 day period.
a. Ms. Johnson repeatedly communicated to her lawyers that she did not want to settle.
They did not withdraw it.
b. Ms. Johnson repeatedly communicated to her former lawyers that settlement was
unauthorized. They did not withdraw it.
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c. Ms. Johnson was clearly confused about the negotiations and her signed mandate
withdrawing settlement consent was never replaced, revoked or rewritten.
35. Even by her former attorney’s contention, Farah & Farah had to re-establish
consent on at multiple occasions. As such, Ms. Johnson did not consent to such a proposal.
36. The parties (not attorneys) to a settlement agreement must reach mutual
agreement on every essential element of the proposed settlement. Florida Department of
Transportation v. Sarnoff, 241 So.3d 931 (Fla. 3rd DCA 2018).
37. Like any contract, a settlement agreement is formed when there is mutual assent
and a “meeting of the minds” between the parties, a condition that requires an offer and an
acceptance supported by valid consideration. Pena v. Fox, 198 So.3d 61 (Fla. 2nd DCA 2015).
38. Further, it is well-settled in Florida that a settlement agreement entered into by an
attorney is enforceable only when it has been determined that the attorney was given
“clear and unequivocal” authority by the client to compromise the claim. See Nehleber v.
Anzalone, 345 So.2d 822 (Fla. 4th DCA 1977), and Vantage Broadcasting Company v. WINT
Radio, Inc., 476 So.2d 796 (Fla. 1st DCA 1985), as well as the cases cited therein.
39. In Vantage Broadcasting Co. v. WINT Radio, Inc., 476 So.2d 796, 797 (Fla. 1st
DCA 1985), the court recognized that “Florida courts have applied a strict standard of proof”
in determining whether a client authorized the attorney to settle the client's claim.
40. Most importantly, on an attorney's good faith belief that the attorney had
authority to settle is insufficient. Cibula v. Ross, 597 So.2d 915 (Fla. 4th DCA 1992); Dixie
Operating Co. v. Exxon Co., 493 So.2d 61, 63 (Fla. 1st DCA 1986).
41. If Farah & Farah, P.A., and/or Pier 1 cannot establish a clear and unequivocal
grant of authority from Juanita Johnson to understand, to file, and maintain a proposal for
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settlement, the Courts are required to reverse under Florida law. See, e.g., Sharick v. Se. Univ. of
the Health Scis., Inc., 891 So. 2d 562, 565 (Fla. 3rd DCA 2004) (reversing where the trial court
“did not resolve the [dispositive] authorization dispute… and… the record demonstrates no clear
and unequivocal grant of authority to the attorney”).
Testimony at the Evidentiary Hearing
Chelsea Harris
42. The first witness called was Chelsea Harris, the lawyer for Pier 1.
43. Ms. Harris did not know the difference between Pier 1 Inc., and Pier 1 (U.S.), Inc.
See page 31, lines 18-25.
44. Despite that, she admitted she sought (and seeks) a full and complete release of
“Sedgwick CMS, Safety National Company, Pier 1 Imports Inc., Pier 1 Imports (U.S.) Inc., Pier
1 Services Company, and their respective parent, subsidiary, and affiliated companies (corporate
and non-corporate), and its and their respective officers, directors, managers, governing body,
shareholders, employees, representatives, and agents,” even though they were not named or
contemplated in the subject Proposal for Settlement. See page 32, lines 18-24.
45. Ms. Harris admitted the subject case was “litigated as a products liability case,”
even though that theory and those words were entirely omitted from the operative Complaint.
See page 3, lines 14-18.
46. Ms. Harris testified she had no knowledge about what Ms. Johnson knew or any
information about the underlying consent for the Proposal. See page 31, lines 1-11.
47. Thus, Ms. Harris admitted the subject Complaint was fatally defective and,
despite it, she was seeking a full release against unnamed parties, including the non-party Pier 1
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Imports (U.S.), Inc. She also admitted she had no knowledge about whether Ms. Johnson
authorized the subject Proposal at the time it was accepted.
Jeff Gadd
48. The second witness called was Jeff Gadd, was the lawyer for Farah & Farah, P.A.,
assigned to the case.
49. After mediation, Mr. Gadd repeatedly discussed and insisted on settlement. Ms.
Johnson grew tired of it. Mr. Gadd testified about what resulted from Mr. Gadd’s requests of Ms.
Johnson to settle:
Q. Before we get there, I still want to know, were there

other settlement discussions between December and June?
A. No. We -- she signed a document that said that she

didn't want to have any more discussions regarding
negotiating the case because she was going to have the
surgery, so -- See p. 43, lines 9-13.
And:
Q. All right. So in late January/early February Ms.

Johnson signed a document saying no further
negotiating.
A. Yes.
Q. Do you agree with that?

A. Yes. See p. 43, lines 18-22.
50. As such, Mr. Gadd was told, verbally and in writing, that settlement was not to be
discussed. It’s as clear and unequivocal of a message as one can ever expect to receive. (see
February 5, 2018, revocation of Proposal for Settlement attached hereto as Exhibit “A”). Mr.
Gadd even typed it up.
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51. Mr. Gadd premises his claims Ms. Johnson verbally repudiated this signed
document on the absolutely unsupportable allegation that Ms. Johnson changed her mind and
told him that she was not going to have back surgery.
52. To that end, Mr. Gadd testified:
“And so time went by. We get -- my office received a

phone call on June 6th. Ms. Johnson said that she no
longer wanted to have the surgery –” See p. 42, lines 6-8.
53. Yet, Ms. Johnson had the back surgery as scheduled. There is no evidence of
cancellation. In fact, there is evidence Gadd’s own paralegal repeatedly told Mr. Gadd surgery
wasn’t cancelled even though Gadd insisted it was, so he could say she repudiated her written
mandate.
54. Mr. Gadd testified:
Q. You indicated you met with the client and confirmed she's not
having surgery, and she approved a proposal for settlement.
"Let's file it today." Is that a fair summation?
A. Correct. See p. 93, lines 17-21.
55. But Mr. Gadd’s false assertion was corrected by his paralegal, as Mr. Gadd noted
under oath:
Q. Ms. Khare said, "Hang on a second. Client has an appointment

with Collier Spine on July 10th, the day before the surgery. She'll
try to move up that appointment and let us know what time it's
scheduled. Also, she had two rehab appointments from January to
present. Her preop is scheduled on June 22, 2018. Client will go
forward with it. Defense proposed two dates for the CME." See p.
93, line 25 to p. 94, line 6.
56. In fact, Mr. Gadd explained the lack of any documentation or record of a
cancellation by admitting even more possible impropriety. He said he employs a tactic when a
client wants to cancel a surgery that they keep it on the books, thus depriving another potential
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patient from a possible surgery, potentially violating mandatory supplements to discovery in
Federal court, and prejudicing the doctor and/or costing his client cancellations charges by
cancelling at the “last minute”:
It wasn't ultimately canceled. That's -- in fact, I

recommended we not cancel until at the very last
minute so that there wouldn't be a record of it. See. P.
92, lines 10-12.
57. Mr. Gadd claims he told his paralegal his unwritten policy “not to cancel” the
surgery, even though there is no record of him telling her that and she was clearly correcting him
that the “client will go forward with it.” See p. 94, line 9 and compare that to line 5.
58. Further supporting possible dishonesty by Mr. Gadd is on page 95. He spoke
about the Proposal and undocumented supposed decision by Ms. Johnson to cancel surgery and
he tried to change his employee’s actual words around to justify his sole position that the surgery
was cancelled:
Q. You say, "Let's file this (Proposal for Settlement) today.

She's not having surgery."
Ms. Khare says, "Wait. She is having surgery."
And it appears Ms. Van Bloem says, "I'll stop drafting the
proposal for settlement."
A. I've got to think that means start. It's just a typo.

I think she meant to say, "Okay. I'll start drafting it."
See p. 95, lines 5-11.
59. To be clear, Ms. Johnson insists surgery was never cancelled. In fact, she had the
surgery on the original date. Ms. Khare said surgery was never cancelled on two occasions.
There is no record from the doctor it was cancelled. It appears to have been Mr. Gadd’s sole
claim it was cancelled so he could violate the written agreement and argue a Proposal was
allowed, discussed and authorized.
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60. Gadd admits that deceit upon the Defendant is intended in his policy to not cancel
surgeries which his client has indicates should be canceled, suspiciously testifying:
A. If I call and we cancel the surgery and then all of a

sudden those records get subpoenaed, now -- now it's --
the proposal's going to not get -- you know, it affects
what we're doing. See p. 94, lines 13-19.
61. During direct testimony, Mr. Gadd admitted Ms. Johnson was repeatedly
equivocal and hesitant about the subject Proposal for Settlement, stating:
“A. I had stated, in sort of a timeline fashion, that on June

6th I had a meeting with her and another employee of our
firm where she essentially, at the end of it, agreed to a
$600,000 proposal for settlement.
That was contemplated being withdrawn a couple

different times. I had talked to her on the 19th, and I talked
to her on the 21st by phone, both with witnesses from our
firm on the line and in person on the 19th.”
And we talked about it. At the end of every -- those two

meetings, it was agreed she did not want to withdraw the
proposal for settlement, and we did not withdraw it.” See p.
38, line 17 to p. 39, line 1.
62. Stated elsewhere, Mr. Gadd said:
“But after every meeting that we talked -- there were times

when she was saying, "Just settle the case." There were
times she was saying withdraw.” See p. 52, lines 1-3.
63. Also, Mr. Gadd admitted:
“I mean, there was a time when we talked about

withdrawing all proposals, and she has said, like I said,
that -- to withdraw the proposal for settlement prior to -
- or at the start of meetings that we've had. So I -- that's
a bit broad, but . . .” See p. 70, lines 11-15.
64. Mr. Gadd also admitted:
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Q. Is it your understanding that Ms. Johnson's position

currently is that she's always wanted a trial? Is that your
understanding?
A. She has stated that "I always wanted a trial" in some

of her pleadings, and she had said, "I want a trial" at
times. She had also said that "This whole thing is stressing
me out, and I'd like to end it." See p. 111, lines 6-12.
65. These statements, alone, are dispositive that Ms. Johnson either misunderstood
what was going on and the consequences of a Proposal and repeatedly asked that it not stand
and/or that it be withdrawn. At that point, a Proposal for Settlement dies. It cannot be brought
back to life by coercing consent, especially when there is a written directive to the contrary. A
defendant may accept at any instance, so it needs to be unable at all instances.
66. In what can only be described as further self-impeachment, Jeff Gadd described a
conversation of June 19, 2018. He said:
“She had talked about wanting to withdraw the

proposal for settlement. I wanted to just make sure she
was clear that if we withdrew it and then she didn't have the
surgery, that could have a negative effect on any kind of
negotiations. It could make the defense drop their offer,
current offer even, so . . .
Q. And you explained all that to Mr. Johnson during your

next meeting?
A. Yes, on the 19th, I want to say. See p. 49, line 23 to p.

50, line 8.
67. So, Mr. Gadd said, “That (the Proposal for Settlement) was contemplated being
withdrawn a couple different times” but he confirmed restored authority at the “end” of every
meeting because, “She had talked about wanting to withdraw the proposal for settlement.” He
then admitted he got her to agree to keep the Proposal for Settlement on the table by threatening
removal of it would have a “negative effect on any kind of negotiations.” This is simply not true.
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There would be no negative consequence from removing an unclear and equivocal Proposal and
ending the possibility of it being accepted, except to Farah & Farah’s bottom line – they had an
erroneous Complaint and a case which has not been properly worked up and needed resolution.
68. Further trouble in Mr. Gadd’s timeline presents itself on the following page.
Facing a client that he admittedly knows, at a minimum, wants him to revoke a Proposal for
Settlement, Gadd asks his client for more time before he rescinds it in order to meet with her
surgeon on June 11, 2018, allegedly saying:
"Before we withdraw it, will you agree at least to let us

keep it on the table until we get to interview the doctor?
Because I want to make sure, you know, in light of all the
defense is going to show him, that he can -- he will relate
this accident -- this surgery to this accident. She agreed to
do that.” See p. 51, lines 8-14.
69. Of course, Mr. Gadd claims Ms. Johnson changed her mind and the surgery was
back on in order to substantiate this meeting with Dr. Hurford, stating:
“And -- but I think she just decided that ultimately she was
going to do it on whatever that was, the 17th or 18th. And
so she called and said, "I want to do it, and so we should
take the proposal for settlement off." See p. 53, lines 15-
18.
70 Elsewhere, Mr. Gadd described the June 19, 2018 meeting about “the surgery”
like this:
“But, ultimately, after talking about -- at least in terms of

the 19th, talking about getting causation first -- because if
the doctor didn't relate the surgery, then, again,
withdrawing it, I felt, could be a mistake so . . .” See. P. 52,
lines 8-11.
71. This meeting between Mr. Gadd and Dr. Hurford was to take place on June 21,
2018. So, Mr. Gadd repeatedly admits he asked Ms. Johnson to keep the Proposal on the table
until he asked her surgeon about relation of “the surgery” to the subject incident. Yet, this is
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really problematic for Mr. Gadd, as he simultaneously claims he was told she was not having this
very surgery on June 6, 2018, which is why he allegedly filed the Proposal for Settlement in the
first place.
72. Then he tells Ms. Johnson that it would be a mistake to withdraw the Proposal “if
the doctor didn’t relate the surgery,” but he knew Dr. Hurford previously related the surgery.
73. Dr. Hurford not only related the upcoming surgery for a second time, but
indicated a possible additional surgery no one knew about at that time:
“He said, "There's a" -- I don't remember the percentage,

"but there's a percent chance you might need another
surgery in the future." See p. 54, lines 4-8.
74. This additional surgery was not revealed to the client or taken into account
regarding the amount of the Proposal for Settlement. At that point, the value of the case
increases. It further establishes the likely malfeasance and lack of candor here.
75. Instead of disclosing two upcoming surgeries, Mr. Gadd and Ms. Johnson talked
about something else:
Q. What was the substance of that telephone conference?

A. Again, now we were really going to withdraw this
proposal for settlement. See p. 55, lines 6-8.
76. Once again, Mr. Gadd admits Ms. Johnson wanted to revoke any Proposal prior to
acceptance:
“I -- so she, in the beginning of the conversation, was

saying, "Okay. We're going to withdraw the proposal for
settlement, and I'm going to have the surgery." See p.
55, lines 22-24.
77. Mr. Gadd then quickly contends the defense lawyer and the Proposal for
Settlement is accepted moments later, which presents another issue with candor related to Mr.
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Gadd’s communications with Ms. Harris. Mr. Gadd originally said, under oath, that the defense
lawyer merely contacted him via email, accepting the proposal for settlement:
A. They -- the defense -- Chelsea Winicki (Harris) sent me

an e-mail a couple, few hours later that said, "We're
accepting the proposal for settlement." See p. 58, lines 1-
3.
78. However, Mr. Gadd later stated that he called Ms. Harris, but specifically
testified he, “didn’t say anything about the proposal,”:
Q. Did you have any conversations with Ms. Winicki

between your telephone conference with Ms. Johnson and
the e-mail that you got accepting it?
A. I just called to tell her -- to relay that -- yeah, I think that

was by phone.
I called to tell her that we were rejecting her current -- then

current offer of $550,000, and I didn't say anything
about the proposal. It would sound weird to say, "We're
keeping our proposal for settlement on the table."
Q. Just that you’re rejecting the $550,000 offer.

A. Yes.
Q. That was done on June 21st?
79. However, Mr. Gadd was later interrogated about his case notes, which reveals
possible perjury or impropriety, as he admits he encouraged the defense lawyer to take the
settlement in contrast to his prior statement:
“Called Chelsea, said we reject 550 and that I -- and that I

could barely get client to let us keep 650 PFS -- 600 PFS
outstanding. She said she would take to client. We'll see.
Hope all is well."
Q. So what does that mean, you told Chelsea barely able to
keep the client authority?
A. That we had a discussion about it. I didn't get into the

details but that -- that she was -- she had -- I didn't get into
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the fact that she had at first said she wanted to withdraw
and then she ultimately told us to do this.” See p. 117, line
18 to p. 118, line 2.
80. The context of this communication between Mr. Gadd and Ms. Harris likely
violates attorney-client privilege. Lawyers are not to reveal a client’s communications and
confidences. Telling a defense lawyer he was “barely able to keep the client authority” not only
shows a potential breach of trust, but shows Mr. Gadd’s intent- to strong-arm this settlement
regardless of whether it was in the best interest or full consent of his client. His clear lack of
candor and changing story also adds a very strong appearance of impropriety to the whole
matter.
81. Gadd admits Ms. Johnson protested this alleged settlement from day one, saying:
“Q. Tell me what happened in June 22?

A. On June 22nd, I relayed to Ms. Johnson the e-mail that
I'd received accepting the proposal for settlement. And she
basically said that "I never told you to do that, and I
didn't agree to that," and that -- that was -- basically,
"You settled the case without my authority."
Q. What time of day was that?

A. It was in the morning. I was on the way to work. 8:30, 9
o'clock, something like that.” See p, 58, lines 17-25.
82. As such, according to Mr. Gadd:
a. He wrote up an agreement, saying he would not discuss settlement until
after surgery.
b. In order to get around this agreement, he conditioned a Proposal for
Settlement on the fact Ms. Johnson said she was not going to have surgery- an
untrue fact not documented anywhere.
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c. His staff corrected him, insisting surgery was still on, but he claims they
were just pretending the surgery was imminent to make the case more valuable or
used the “wrong words”.
d. He then kept the Proposal for Settlement running once he was told she was
going to have the surgery.
e. He asked her to keep it running while he confirmed with the surgeon (for
a second time) that the surgery was related to the case, as it would be a “mistake” to
withdraw it if the surgery was not related.
f. He then (again) was told that the surgery was related and she may even
need another surgery after that, thus revealing, new facts and increased damages.
g. At the final meeting, Ms. Johnson insisted the Proposal be rescinded, but
in a miraculous role reversal, Ms. Johnson insists keeping the Proposal for Settlement on
the table. Ms. Johnson disputes this.
h. Mr. Gadd gives three versions of his last communication with Ms. Harris.
He says (1) defense counsel emails him, then (2) admits he called her but says he
specifically did not mention the settlement, then (3) admits he called her and said told the
defense lawyer he “barely could keep the authority,” such that the Defendant
immediately accepts.
i. Mr. Gadd then is immediately told that the settlement was not
authorized, calls his client a liar in case notes, but refuses to withdraw as he wants the
case closed and to earn the $240,000 firm fee and cover up erroneous pleading.
j. Mr. Gadd blames a brand new paralegal for crafting an in-house
email to the defense lawyer saying Farah & Farah, P.A. and the Defendant need to
18
engage in a “joint effort” to enforce the settlement against his own client. They claim this
wasn’t sent, but the Motion to enforce was filed the same day.
83. Mr. Gadd says it best on page 62:
Q. Do you have any question in your mind that after

your meeting on June 19th, that it was Ms. Johnson's
desire that the proposal for settlement continue to run?
84. “Yes,” there was a question in his mind as to whether it “was Ms. Johnson’s
desire that the proposal for settlement” “should continue to run”. The analysis literally
stops there. That is not clear and unequivocal consent, even in Mr. Gadd’s own mind.
85. On cross examination, Mr. Gadd admitted to the many mistakes he made handling
this case. These stand as motive for forcing a settlement:
a. He did not sue for products liability. See p. 78, lines 5-17.
b. It took over a year and a half to even inspect the subject chair. See p. 78, lines 18-
21.
c. Ms. Johnson entered into a contract with his office which, according to Gadd,
“basically says, ‘Because of my upcoming surgery, we’re not going to negotiate
anymore. We’re going to take all offers off of the table.” See p. 84, lines 1-3. The
Court even noted, “you thought it was important enough to put in writing?” To
which, Mr. Gadd responded, “yes.” See p. 86, lines 14-16.
d. Gadd may have personally typed that agreement demanding a refusal of further
negotiations between Farah & Farah, P.A. and Ms. Johnson. See p. 84, line 5 and
also p. 85, lines 4-5. He affirmatively admits he did it on page 85, line 10.
e. There is nothing in writing rescinding this agreement or authorizing a $600,000
settlement. See p. 85, lines 20-25.
19
f. He named the wrong defendant in the Complaint at all material times. See p. 103,
lines 1-16
g. The parties merely moved to amend the caption and not the body of the
Complaint, thus the correct Defendant was never properly substituted. See p. 103,
lines 1-22.
h. Other impropriety noted above.
Wesley Ford:
86. The third witness called was Wesley Ford, who was the lawyer for Farah & Farah,
P.A. who was also assigned to the case.
87. Mr. Ford admitted during his 20 minutes with her, “Ms. Johnson was wavering
as to whether or not she wanted it to be withdrawn.” See p. 136, lines 1-2.
88. Mr. Ford testified “She didn't know whether or not she wanted to leave that
proposal for settlement on the table or withdraw it, and she didn't know what -- why
someone would recommend that she leave it on the table or withdraw it.” See p. 136, lines
22-25.
89. Mr. Ford expressed that if Dr. Hurford said the surgery was not related to her fall,
it would potentially be detrimental to her case. Ms. Johnson allegedly responded, “I think I'll --
that's what I'll do.” See p. 137, lines 18-19.
90. Mr. Ford was at a second meeting after the Proposal was accepted. Mr. Ford said
Ms. Johnson, “was very withdrawn, and we had a difficult time communicating effectively in
that meeting.” See p. 140, lines 8-9.
20
91. Mr. Ford admitted he was not privy to all of the facts and communications. He
was also not aware of the February 2018 written agreement where the client insisted there be no
negotiation until after surgery.
Charlie Farah:
92. The fourth witness called was Charlie Farah, who is an owner of Farah & Farah.
93. Mr. Farah added very little and had very little involvement with the matter. He
repeatedly said he didn’t remember most of the specifics of the matter.
94. He repeatedly said Ms. Johnson, “pretty much gave authority,” but when asked,
clarified that she gave authority. See p. 159, lines 17-20.
95. He described Ms. Johnson as, “a little disgruntled” about the settlement at the
meeting that occurred post-settlement. See p. 157, line 5.
Shalaka Khare:
96. The fifth witness called was Shal Khare, who was a paralegal at Farah & Farah,
P.A.
97. As of February 2018, Ms. Khare described what led to the letter and what was
intended, which seems to reflect her intent throughout- not settle until after surgery:
A. Well, that's why all the numbers were off the table, per
se, because she was considering surgery. So she didn't want
to settle the case at that point. See p. 173, lines 13-16.
98. Ms. Khare testified that based off an expert report, medical bills, amounts and
“conversations Mr. Gadd and her had at mediation,” as well as “everything under the sun,” Ms.
Johnson “fully understood” and agreed to a Proposal for Settlement. She also testified Ms.
Johnson never expressed any hesitation or reservation about it.
21
99. As Ms. Khare says there was never any reservation or hesitation about the
Proposal, her testimony is so lonesome and isolated that it simply makes her testimony
meaningless. Literally no one has testified consistently to Ms. Khare.
Juanita Johnson:
100. As Plaintiff’s only witness, the sixth and final witness called was Juanita Johnson,
the Plaintiff.
101. Ms. Johnson confirmed she had surgery on July 11, 2018 and that it was never
cancelled or postponed from that date. See p. 190, lines 18-25.
102. Ms. Johnson never told anyone that she was going to postpone the July 11,
2018 surgery date and the only time her surgery was postponed was because of the death of her
son. See p. 191, lines 1-13.
103. Ms. Johnson spoke freely of issues of possible legal malpractice which were
never explained to her, such as filing this case as a premises liability case and not a products
liability case, naming the wrong defendant, neither her lawyer, nor an expert inspecting the chair
(instead it was her and the paralegal), all of which are issues which could justify wanting to
resolve this case quickly.
104. Ms. Johnson testified:
Q. Okay. Did you give any lawyer at Farah & Farah the
authority, the right, to file a proposal for settlement for
$600,000?
A. No.
Q. Okay. You're sure about that.
A. Positive. See p. 193, lines 2-7.
105. According to Ms. Johnson’s recollection and calendar, she did not have a meeting
with Mr. Gadd on June 6, 2018. She testified:
22
Q. So June 6th -- despite some of the conversations we've

had, you actually didn't have a meeting with Farah & Farah
in any way on June 6th. Fair?
A. No, sir. I had other appointments but, no, not with them.
Q. And what happened on June 7th?
A. Shal called me and asked me to come in, that Mr. Gadd
wanted to speak with me. See p. 198, lines 6-12.
106. On June 7, Ms. Johnson testified she told Mr. Gadd she will still having surgery
on July 11, 2018. See p. 198, lines 24-25.
107. On June 19, 2018, Ms. Johnson is asked to come in to Farah & Farah, P.A.’s
office. They discussed Defendant’s offer to settle for $550,000 and the possibility of an offer to
them for $600,000. Ms. Johnson described this meeting, as:
I said, "Oh, in that case, I'm still having the surgery. I might
not even make it out." I says, "I don't know what the
surgery's going to do for me." I said, "I could die. I could" -
- I said, "No." I said, "Take it off."
He says, "Oh, no. I'm going to leave the 550,000 on until

after I talk to Dr. Hurford, and we'll leave the 600 on." I
said, "No, because I can't change it. If something happens
to me, if my back surgery goes bad, you -- you explained to
me that I can't change it."
And I told him two, three times, "No. Take them off. I
don't want to do this," because I didn't know that he
was trying to get me to tell them what I'm proposing I
should get.
No. I -- I just told him, "No. Take them off." See p. 202,
lines 2-14.
108. Ms. Johnson testified she did not know a formal $600,000 Proposal had already
been served by her lawyers. See p. 202, line 17. Her testimony is supported by there being
nothing in writing whatsoever in any way communicating it to her or authorization from her,
despite there being the February 2018 writing where she withdrew Farah & Farah, P.A.’s
authority to settle her case.
23
109. On June 21, 2018, Mr. Gadd spoke to Ms. Johnson again. She described the
conversation like this:
So when I finished talking to Jeff and Mr. Farah, my last

thing was to them -- again is, "I really want to go to trial.
I really don't want to get -- have any surgery -- I mean,
I don't really want to have any -- any negotiations until
after my surgery," and that's what I told them.
And that's all I said to them. And then that ended it. See p.
204, lines 2-14.
110. This is all entirely consistent with the written records, which should be given
great deference. Ms. Johnson contracted that no settlement be discussed until after her surgery.
Period.
111. On June 22, 2018, Mr. Gadd told Ms. Johnson her Proposal was accepted. She
recounted:
Jeff said to me, "Oh, by the way, Juanita" -- it wasn't a long

conversation. He says, "By the way, Juanita, Ms. Chelsea" -
- I forget her name but "Pier 1's lawyer said they accept the
$600,000 proposal."
I said, "What?" I was flabbergasted. My son -- I said,

"How" -- I said, "I never gave you permission to do that.
You -- I never told you to do that." I said, "You said that
was for negotiations, but when you explained to me what
would happen, I said take all of them off." See p. 204 line
24 to p. 205, line 7.
Conclusion:
112. Once again, the law states that the parties to a settlement agreement must reach
mutual agreement on every essential element of the proposed settlement. Florida Department of
Transportation v. Sarnoff, District Court of Appeal of Florida, Third District. March 7, 2018 241
So.3d 931. This did not occur here.
24
113. The evidence reveals this Proposal was an act done by Farah & Farah, P.A., and
not Ms. Johnson, as she did not consent to the offered contract at the time it was accepted. In
fact, she testified she never agreed to serving a Proposal for Settlement for $600,000.
114. The only written evidence supports her contention - it is a letter signed by Ms.
Johnson, which was drafted by Farah & Farah, P.A.
115. That is clearly not the case. By Mr. Gadd’s own words:
Q. Do you have any question in your mind that after your

meeting on June 19th, that it was Ms. Johnson's desire that
the proposal for settlement continue to run?
116. An attorney's good faith belief that the attorney had authority to settle is
insufficient. Cibula v. Ross, 597 So.2d 915 (Fla. 4th DCA 1992); Dixie Operating Co. v. Exxon
Co., 493 So.2d 61, 63 (Fla. 1st DCA 1986). We expect a proper viewing of the facts here
actually show bad faith by Mr. Gadd. But even if he was acting in good faith, at no point has he
established Ms. Johnson gave appropriate authority to file and maintain a Proposal for Settlement
and certainly has shown clear repeated intent by Ms. Johnson to forbid or rescind one.
Wherefore, Plaintiff, Juanita Johnson, files this supplemental prayer for relief subsequent
to the evidentiary hearing which occurred on August 5, 2019, entitled Plaintiff’s Amended
Motion to Strike the Proposal for Settlement and Supplemental Response to Defendant Pier 1
Import, Inc.’s Motion to Enforce Settlement. In support thereof, Plaintiff respectfully requests
this Court grant Plaintiff’s Motion to Strike the subject Proposal for Settlement and/or deny Pier
1’s Motion to Enforce Settlement for the grounds stated herein.
25
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy hereof has been electronically filed with the
Clerk of the Court using the CM/ECF and has been furnished to Kendra B. Therrell, Esquire,
Kubicki Draper, 76 South Laura Street, Suite 1400, Jacksonville, FL 32202, (Attorneys for Pier
1) by email to kbt-kd@kubickidraper.com ; and John A. Carlisle, Esquire, and Rutledge R.
Liles, The Liles Firm, P.A., by email to jcarlisle@thelilesfirm.com ; rliles@thelilesfirm.com ;
jostwald@thelilesfirm.com ‘ spisarek@thelilesfirm.com ; this 28th day of January, 2020.
Law Office of John M. Phillips, LLC
/s/ John M. Phillips___________________

JOHN M. PHILLIPS, ESQUIRE
Florida Bar Number: 0477575
4230 Ortega Boulevard
Jacksonville, FL 32210
(904) 444-4444
(904) 508-0683 (facsimile)
Attorneys for Plaintiff
JPhillips@FloridaJustice.com
Michele@floridajustice.com
William@floridajustice.com
26

Evidence Presented of Farah &amp; Farah Misconduct

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Case 3:17-cv-00192-MMH-MCR Document 87 Filed 01/28/20 Page 1 of 26 PageID 899

UNITED STATES DISTRICT COURT

CASE NO. 3:17-cv-192-J-34MCR

PIER 1 IMPORTS (U.S.), INC.,

PLAINTIFF’S AMENDED MOTION TO STRIKE PROPOSAL FOR SETTLEMENT

1’s Motion to Enforce Settlement for the grounds stated herein.

chair collapsed under her.

amend the parties in any way. (Docket item #7).

4. On February 5, 2018, Juanita Johnson executed a written contract alongside Farah

conferred with opposing counsel before filing.

maintain a Proposal for Settlement. (Docket item #35).

was ultimately stricken by the Court. (Docket item #39).

Counsel, citing “irreconcilable differences.” It failed to mention it had been previously

the Rules. (Docket item #39).

Johnson. (Docket item #55).

19. Ultimately, an evidentiary hearing was held on August 5, 2019. A transcript

thereof has been filed at docket entry 85.

Defendant named in the current suit.

Proposal for Settlement Facially Invalid Under Florida Law

23. Florida Statute 768.79 is Florida’s “Offer of Judgment” statute. To be sufficient,

incompetency, was merely substituted in the “Caption.”

served or improperly omitted from the Complaint.

Proposal for Settlement Procedurally Invalid Under Florida Law

768.79 and “Rule 5 of the Federal Rules of Civil Procedure.”

proposal was not therefore complete in that regard.

Proposal for Settlement Lacked Requisite Authority

They did not withdraw it.

unauthorized. They did not withdraw it.

withdrawing settlement consent was never replaced, revoked or rewritten.

agreement on every essential element of the proposed settlement. Florida Department of

Transportation v. Sarnoff, 241 So.3d 931 (Fla. 3rd DCA 2018).

38. Further, it is well-settled in Florida that a settlement agreement entered into by an

and unequivocal grant of authority to the attorney”).

Testimony at the Evidentiary Hearing

See page 31, lines 18-25.

See page 3, lines 14-18.

authorized the subject Proposal at the time it was accepted.

assigned to the case.

Q. Before we get there, I still want to know, were there

A. No. We -- she signed a document that said that she

Q. All right. So in late January/early February Ms.

Q. Do you agree with that?

Gadd even typed it up.

52. To that end, Mr. Gadd testified:

“And so time went by. We get -- my office received a

54. Mr. Gadd testified:

A. Correct. See p. 93, lines 17-21.

Q. Ms. Khare said, "Hang on a second. Client has an appointment

patient from a possible surgery, potentially violating mandatory supplements to discovery in

cancelling at the “last minute”:

It wasn't ultimately canceled. That's -- in fact, I

Q. You say, "Let's file this (Proposal for Settlement) today.

Ms. Khare says, "Wait. She is having surgery."

A. I've got to think that means start. It's just a typo.

allowed, discussed and authorized.

A. If I call and we cancel the surgery and then all of a

“A. I had stated, in sort of a timeline fashion, that on June

That was contemplated being withdrawn a couple

And we talked about it. At the end of every -- those two

62. Stated elsewhere, Mr. Gadd said:

“But after every meeting that we talked -- there were times

63. Also, Mr. Gadd admitted:

“I mean, there was a time when we talked about

64. Mr. Gadd also admitted:

Evidence Presented of Farah & Farah Misconduct

Evidence Presented of Farah & Farah Misconduct