[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 14-14907

Non-Argument Calendar

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D.C. Docket No. 0:14-cv-60014-JIC

DAVID B. MURSTEN,

 Plaintiff-Appellant,

 versus

NICK A. CAPORELLA,

Defendant-Appellee.

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Appeal from the United States District Court

for the Southern District of Florida

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(July 21, 2015)

Before WILLIAM PRYOR, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM: 

David Mursten appeals the summary judgment in favor of Nick Caporella 

and against Mursten’s complaint of breach of contract. Mursten, a lawyer, sought 

to enforce an alleged contract to pay him $4 million in stock for services 

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performed in anticipation of the sale of National Beverage Corporation, of which 

Nick A. Caporella was the majority stockholder. The district court ruled that the

alleged contract, which was not in writing or signed by Caporella, would violate 

Rule 4–1.8(a) Regulating the Florida Bar and would be unenforceable. After 

careful review, we affirm.

Mursten is a member of the Florida bar and provides “strategic planning” 

services for business organizations. Between 2006 and 2008, Mursten served as 

assistant counsel for Corporate Management Advisors, Inc., an entity wholly 

owned by Caporella. Mursten befriended Caporella, and Caporella purportedly 

fashioned the oral employment contract to “set aside wealth” for Mursten.

Mursten alleged that Caporella devised the contract before daybreak on 

September 6, 2010, while they were meeting in the lobby of The Ritz Carlton in 

Fort Lauderdale. Caporella asked Mursten to “be available on a 24 hour, seven[] 

day a week basis” to provide “advice and counsel” for the potential sale of 

National Beverage and to “perform any other task requested by Caporella, for [his] 

benefit . . . [and that of] his controlled entities.” In exchange, Caporella allegedly

offered to pay Mursten the lesser of $10 million or 2 percent of the sales price 

when the sale occurred, or if “no deal [was] ultimately reached,” to transfer to 

Mursten $4 million of Caporella’s shares in National Beverage and cash sufficient 

to pay any related income taxes. Mursten alleged that he accepted the offer, which 

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he referred to as the “Dr. Pepper Deal,” and that Caporella later refused to execute 

a written employment agreement.

Mursten purportedly performed a myriad of services for Caporella. Between 

September 4 and 6, 2010, Mursten “worked intensely . . . [with Caporella]

regarding the offer” to purchase National Beverage. Mursten also “work[ed] to get 

a competitor . . . to [submit a competing] bid”; “advis[ed] Caporella on strategic 

steps [to] increase the [sales] price”; “recommend[ed] an investment banking firm 

to . . . [use] in the negotiations”; “participat[ed] in due diligence . . . and other 

strategy meetings”; and “provid[ed] analysis, advice[,] and counsel on various 

strategic and tactical issues . . . .” Unrelated to the sale, Mursten “provid[ed] advice 

and assistance to Caporella in the potential purchase of various real estate 

properties in Florida, Mexico, New Hampshire and New York”; “serv[ed] as one 

of two trustees of . . . a grantor trust”; “review[ed] [a purchase] agreement between 

Caporella and his brother”; provided “advice and counsel on SEC disclosure 

issues,” “maintenance options for . . . [Caporella’s corporate] jet,” “wealth 

management and estate issues,” and “an investment opportunity in a medical 

startup venture”; and “purchas[ed] a new Mercedes for Caporella.”

Caporella paid Murstein for at least some of his services. Mursten received a 

check of $28,200 for his work with Caporella between September 4 and 6, 2010, a 

“special real estate project,” “Lawyer management and trust planning,” and 

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“Recruiting, nurses and companion.” Mursten also received a check of $49,548 for 

“estate planning” and “real estate” services, purchasing Caporella’s “Vehicle,” and 

a “New York Project.”

By June 2011, negotiations terminated for the sale of National Beverage. In 

October 2011, Caporella said that he would complete the Dr. Pepper Deal by 

transferring $4 million in stock to Mursten within one year. In November 2011, 

Mursten received a check for $40,000 and thanked Caporella for the “excessive 

and generous check” as “measured against the specific, identifiable value created.” 

Later that month, Mursten and Caporella had a disagreement and ended their 

relationship.

Mursten sued Caporella for breach of contract. Caporella disclaimed any 

knowledge of the Dr. Pepper Deal and moved for summary judgment. Caporella 

argued that the alleged oral agreement was unenforceable as “an impermissible, 

unwritten contingency fee agreement” and “an impermissible unwritten business 

transaction with a client” that would violate the Rules Regulating the Florida Bar.

Mursten disavowed having a lawyer-client relationship with Caporella, but 

Caporella submitted a transcript of Mursten’s deposition during which he 

authenticated a document that described his legal work for Caporella. The 

document stated that, in 2010, Mursten “Coordinated revision of Motion for 

Summary Judgment,” “Reviewed draft motion,” “Identified inconsistencies,” 

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Revised motion to incorporate [Caporella’s] ideas,” and “added other declarations 

to Motion.” Those tasks involved a motion for summary judgment filed on 

September 3, 2010, three days before Mursten accepted the Dr. Pepper Deal.

The district court entered summary judgment in favor of Caporella. “[E]ven 

accepting Mursten’s contention that he and Caporella agreed to the Dr. Pepper 

Deal,” the district court ruled that “Mursten cannot enforce the oral agreement that 

would entitle him to a portion of Caporella’s stock in [National Beverage].” The 

district court determined that the alleged contract, like the oral contingent fee 

agreement in Chandris, S.A. v. Yanakakis, 668 So. 2d 180 (Fla. 1995), would be

void because it would “violate the requirements” of Rule 4–1.8(a) Regulating the 

Florida Bar and would be “unenforceable as a matter of public policy.” Mursten

would have violated Rule 4–1.8(a) by “enter[ing] into a business transaction with a 

client or knowingly acquir[ing] an ownership, possessory, security, or other 

pecuniary interest adverse to a client” without “fully disclos[ing] and transmit[ting]

in writing . . . [a description of] the transaction and terms on which [he] acquires 

the interest”; giving “advi[ce] in writing of the desirability of seeking . . . the 

advice of independent legal counsel on the transaction”; and obtaining “informed 

consent, in a writing signed by the client, to the essential terms of the transaction.”

R. Regulating Fla. Bar 4–1.8(a)(1)–(3).

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We review de novo a summary judgment and view the evidence in the light 

most favorable to the nonmovant. Alliance Metals, Inc., of Atlanta v. Hinely Indus., 

Inc., 222 F.3d 895, 897 (11th Cir. 2000). Summary judgment is appropriate when 

the record shows that there is no genuine issue of material fact and the moving 

party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).

The district court correctly determined that the alleged contract would 

violate Rule 4–1.8(a) Regulating the Florida Bar. Even if we were to assume that 

Mursten and Caporella agreed to the alleged Dr. Pepper Deal, Mursten would have 

entered a business transaction to provide legal services in exchange for stock in 

Caporella’s business, National Beverage, without recording the essential terms of 

or obtaining Caporella’s assent to the transaction. See R. Regulating Fla. Bar 4–1.8 

cmt. on business transactions between client and lawyer (requiring compliance 

with Rule 4–1.8(a) “when the lawyer accepts an interest in the client’s business or 

other nonmonetary property as payment for all or part of a fee”); The Fla. Bar v. 

Doherty, 94 So. 3d 443 (Fla. 2012) (sanctioning a lawyer who provided legal and 

financial investment services for violating Rule 4–1.8(a)). Mursten argues that he 

was not Caporella’s lawyer, but Mursten provided “advice and counsel” to 

Caporella; Mursten stated in an email sent to another lawyer in January 2011 that 

he was “an attorney for Nick A. Caporella”; and Mursten testified that he 

performed legal work for Caporella. Mursten’s later declaration, in which he stated

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that he “was not practicing as a lawyer for any clients” before the Dr. Pepper Deal

and that he and Caporella “had no attorney-client relationship,” is inconsistent with

his earlier deposition testimony and failed to create a genuine issue of material fact 

to defeat summary judgment. See Van T. Junkins & Associates, Inc. v. U.S. Indus., 

Inc., 736 F.2d 656, 657 (11th Cir. 1984).

The district court did not err when it entered summary judgment against 

Mursten’s complaint of breach of contract. The disclosure and recording 

requirements in Rule 4–1.8(a) serve the public interest by thwarting “overreaching 

when [a] lawyer participates in a business, property, or financial transaction with a 

client,” R. Regulating Fla. Bar 4–1.8 cmt. on business transactions between client 

and lawyer. Overreaching is particularly of concern when a lawyer seeks to 

enforce an agreement to acquire stock worth millions of dollars in a lucrative 

business of a client who is also a personal friend. And the Supreme Court of 

Florida has held that a fee contract between a lawyer and a client that “fails to 

adhere to the[] requirements [of the Rules Regulating the Florida Bar] is against 

public policy and is not enforceable by the member of The Florida Bar who has 

violated the rule.” Chandris, 668 So. 2d at 186; see also Foodtown, Inc. of 

Jacksonville v. Argonaut Ins. Co., 102 F.3d 483, 485 (11th Cir. 1996) (refusing to 

recognize an oral fee agreement that violated Rule 4–1.5(f)). Because the alleged 

Dr. Pepper Deal would have violated the express requirements of and purposes for

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Rule 4–1.8(a), the district court did not err in determining that the alleged contract 

between Mursten and Caporella would be void.

We AFFIRM the summary judgment in favor of Caporella.

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