DANIEL S. WEINGER, ESQ. CONRAD & SCHERER, LLP Attorneys for Appellant P. O. Box 14723 Fort Lauderdale, FL 33302 Tel: (954) 462-5500 Fax: (954) 463-9244 ii Table of Contents Table of Contents ............................................................................................ ii Table of Authorities ....................................................................................... iii Points on Appeal ......................................................................................... v Preface ............................................................................................................ 1 Statement of Case and Facts ........................................................................... 2 Summary of Argument ................................................................................... 5 Argument ........................................................................................................ 6 I. Standard of Review ............................................................................... 6 II. Because Judge Philips, Acting as a Substitute Judge, was not Required to Weigh and Compare Testimony Taken By Her Predecessor, She Acted Within the Scope of Her Authority and Did Not Abuse Her Discretion by Ruling on Appellees Motion for Entitlement to Attorneys Fees ............................................................................................................ 7 III. The Trial Court Did Not Abuse Its Discretion by Denying Appellants Motion to Reconsider its Earlier Order on Entitlement to Attorneys Fees ........................................................................................... 9 IV. The Trial Court Did Not Abuse Its Discretion in Setting the Amount of Reasonable Attorneys Fees ................................................................. 10 Conclusion .................................................................................................... 12 Certificate of Service .................................................................................... 13 Certificate of Type Size and Style ................................................................ 13
iii Table of Authorities Cases Alvord v. Alvord, 572 So. 2d 925 (Fla. 3d DCA 1990) ....................................................... 7, 8 Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla. 1979) ..................................................................... 10 Asinmaz v. Semrau, 42 So. 3d 955 (Fla. 4th DCA 2010) ............................................................ 7 Bettez v. City of Miami, 510 So. 2d 1242 (Fla. 3d DCA 1987) ....................................................... 10 Buckeye Check Cashing, Inc. v. Cardegna, 824 So. 2d 228 (Fla. 4th DCA 2002) .......................................................... 7 Cokonougher v. Cokonougher, 543 So. 2d 460 (Fla. 2d DCA 1989) ........................................................... 9 Commercial Garden Mall v. Success Acad., Inc., 453 So. 2d 934 (Fla. 4th DCA 1984) .......................................................... 9 Gibbs Const. Co. v. S. L. Page Corp. 755 So. 2d 787 (Fla. 2d DCA 2000) ........................................................... 7 Gonzalez Engineering, Inc. v. Miami Pump & Supply Co., 641 So. 2d 474 (Fla. 3d DCA 1994) ........................................................... 9 Greenfield v. Westmoreland, 2007 WL 518637 (Fla. 3d DCA February 21, 2007) .................................. 2 Hobbs v. Hobbs, 518 So. 2d 439 (Fla. 1st DCA 1988) .......................................................... 9 Hunter v. Dennies Contracting Co., Inc., 693 So. 2d 615 (Fla. 2d DCA 1997) ......................................................... 10 Joachim v. Joachim, 942 So. 2d 3 (Fla. 5th DCA 2006) ............................................................ 11 Kirt v. Sharper, 940 So. 2d 1239 (Fla. 5th DCA 2006) ........................................................ 7 McIlveen v. McIlveen, 644 So. 2d 612 (Fla. 2d DCA 1994) ........................................................... 9 iv Parlier v. Eagle-Picher Indus., Inc. 622 So. 2d 479 (Fla. 5th DCA 1993) .......................................................... 7 R.E. v. Department of Children and Families, 996 So.2d 929 (Fla. 4th DCA 2008) ........................................................... 2 Simpson v. Simpson, 780 So. 2d 985 (Fla. 5th DCA 2001) ........................................................ 11 Trans Atlantic Distributors, L.P. v. Whiland & Co., S.A., 646 So. 2d 752 (Fla. 5th DCA 1994) .......................................................... 9 Winkelman v. Toll, 632 So. 2d 130 (Fla. 4th DCA 1994) .......................................................... 9 Yakavonis v. Dolphin Petroleum, Inc. 934 So. 2d 615 (Fla. 4th DCA 2006) .......................................................... 7 Rules Fla. R. App. P. 9.110 ...................................................................................... 1 Fla. R. App. P. 9.210 ...................................................................................... 2 v POINTS ON APPEAL I. WHEHTER A SUBSTITUTE JUDGE ABUSED THEIR DISCRETION BY RULING ON APPELLEES MOTION FOR ENTITLEMENT TO ATTORNEYS FEES
II. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING APPELLANTS MOTION TO RECONSIDER ITS EARLIER ORDER ON ENTITLEMENT TO ATTORNEYS FEES
III. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN SETTING THE AMOUNT OF REASONABLE ATTORNEYS FEES
1 Preface This Answer Brief is submitted on behalf of FRANCISCO DESOUZA, an individual and Broward County resident, Plaintiff below. MAX R. WHITNEY AND MAX R. WHITNEY, P.A., have appealed, pursuant to Fla. R. App. P. 9.110(a)(1), the following orders: 1) the trial courts September 3, 2010, order on entitlement to attorneys fees; 2) the trial courts February 8, 2011, order on amount of attorneys fees; and 3) the trial courts May 3, 2011, order denying Whitneys motion to reconsider the issue of entitlement. Appellants, Max R. Whitney and Max R. Whitney, P.A., are referred to collectively as Whitney, Defendants, or Appellants. Appellee, Francisco DeSouza, is referred to as DeSouza, Plaintiff, or Appellee. The following symbols will be used: I.B. ___ references are to the Initial Brief of Appellants. Unless otherwise indicated, all emphasis is supplied by the writer. 2 Statement of Case and Facts 1
A. General Background On May 21, 2010, DeSouza filed a Complaint against Whitney, an attorney, for malicious prosecution. (R. 1-14.) DeSouza alleged that in an earlier case, Whitney filed suit against him and sought to impose personal liability on DeSouza for a dishonored corporate check despite clear Florida law demonstrating that no individual liability could be established under the facts of the case. (R. 4.) DeSouza further alleged that Whitney continued prosecution of the civil action even after the contrary binding authority had been pointed out to him. (R. 4.) After the case filed by Whitney was dismissed, DeSouza filed an action against Whitney for malicious prosecution. (R. 1-14.) It is from DeSouzas malicious prosecution Complaint that this appeal arises. B. Whitney Files a Baseless Motion to Dismiss On June 14, 2010, Whitney filed a Motion to Dismiss DeSouzas Complaint. (R. 15-24.) In the motion, rather than limiting his arguments to the allegations
1 Despite informing this Court in response to an order to show cause that the Initial Brief was not timely served because Appellants were waiting for the clerk to finish preparing the record on appeal, Appellants Statement of the Case and Facts does not contain a single factual statement that is accompanied by a citation to the record. In fact, the majority of the statements in Appellants Statement of the Case and Facts are either impermissibly argumentative or unsupported by the record in any event. Accordingly, this Court should disregard any and all statements contained in Appellants Statement of the Case and Facts that are not supported by a corresponding record citation. See R.E. v. Department of Children and Families, 996 So.2d 929, 930 n.1 (Fla. 4th DCA 2008); Greenfield v. Westmoreland, 2007 WL 518637 (Fla. 3d DCA February 21, 2007). See also Fla. R. App. P. 9.210(b)(3). 3 contained within the four corners of the Complaint, Whitney raised numerous issues of fact and made material misrepresentations of Florida law. (R. 15-24.) On August 4, 2010, after conducting a non-evidentiary hearing, Judge Jack Tutor entered an Order Denying Whitneys Motion to Dismiss. (R. 43.) C. DeSouza Files a Motion for Entitlement of Attorneys Fees DeSouza filed a Motion for Entitlement to Attorneys Fees under Florida Statutes section 57.105 on the grounds that, in addition to arguing matters entirely outside the four corners of the Complaint, Whitney knew or should have known that the claims asserted or attempted to be asserted in the Motion to Dismiss (a) were not supported by the material facts necessary to establish same, and/or (b) were not supported by the application of existing law to the material facts. (R. 25- 35, 36-39.) Specifically, Whitney had claimed in his Motion to Dismiss that the earlier suit against DeSouza individually was proper because the corporation had been administratively dissolved based upon DeSouzas alleged untimely filing of its annual report. (R. 15-24). Similar to the events during the course of the original lawsuit brought by Whitney, DeSouza informed Whitney that the controlling Florida statute unequivocally states that the annual reports are timely so long as they are filed between January 1 and May 1 of the applicable year. (R. 4, 25-35, 36-39.) Suit against DeSouza individually was accordingly improper 4 because, by filing the annual report on April 30, DeSouza ensured that the corporation remained solvent. (R. 25-35, 36-39.) On September 3, 2010, after conducting a non-evidentiary hearing, substitute Judge Carol-Lisa Phillips entered an Order granting DeSouzas Motion for Attorneys Fees. (R. 55-56.) In the Order, Judge Phillips specifically found that the applicable statute clearly and unequivocally supported DeSouzas position and that Whitney was alerted to the mistake on June 25, 2010 and chose not to withdraw or try to correct his motion. (R. 55-56.) Shortly thereafter, Whitney filed a motion to reconsider, although he titled same as a Motion for Rehearing. (R. 57-58.) On May 3, 2011, Judge Phillips issued an order reaffirming her earlier order on entitlement to attorneys fees and denying Whitneys motion to reconsider. (R. 466.) D. A Successor Judge Determines a Reasonable Amount of Fees On September 23, 2010, Judge Tutor issued a sua sponte order of recusal, with the case being transferred to Judge Marc Gold. (R. 143, 423.) Prior to the evidentiary hearing on the amount of attorneys fees, DeSouza filed the sworn affidavit of an expert witness, Steven Osber. Mr. Osber calculated that the adjusted time and fees totaling 30.2 hours and $5,540.00 in fees are both reasonable and directly related to litigating Defendants Motion to Dismiss. (R. 413-418.) Osber did not include the reasonable fees for his own services in that 5 estimate. (R. 413-418.) On February 8, 2011, after conducting an evidentiary hearing, the trial court entered an order awarding DeSouza $4,575.00 in attorneys fees. (R. 423.) This amount included $1,350.00 in fees to DeSouzas expert witness, Steven Osber, and $3,225.00 to DeSouzas attorneys. (R. 423.) The transcript of the evidentiary hearing on amount of fees is not a part of the record on appeal. (R. 1-487.) Whitney has appealed three orders: 1) Judge Phillipss September 3, 2010, order on entitlement to attorneys fees; 2) Judge Golds February 8, 2011, order on amount of attorneys fees; and 3) Judge Phillipss May 3, 2011, order denying Whitneys motion to reconsider the issue of entitlement. (R. 483-487.) Summary of Argument Appellants claim that Judge Philips, as a substitute judge, did not have the authority to rule on Appellees motion for attorneys fees. This argument cannot withstand even a cursory review. In Florida, a substitute or successor judge may complete any act left uncompleted by his predecessor so long as they are not required to weigh and compare testimony heard before the other judge. Here, Judge Phillips was simply asked to rule on the legal arguments of the parties as to the issue of entitlement to attorneys fees. Although a different judge issued the order denying the Motion to Dismiss that precipitated the motion for fees, that issue was resolved without an evidentiary hearing. Thus, Judge Phillips was never 6 asked to weigh and compare any testimony heard before the prior judge. Accordingly, Judge Phillips did not abuse her discretion in ruling on Appellees motion for attorneys fees. For the same reason, Judge Phillips did not abuse her discretion in denying Appellants motion to reconsider her earlier ruling on entitlement. Additionally, although a trial court has the inherent authority to reconsider any of its non-final rulings, its decision not to exercise that authority is generally not reviewable. Finally, Appellants have failed to provide any record support for their contention that the trial court abused its discretion in calculating the amount of attorneys fees. In fact, the only evidence in the record is the uncontested affidavit of DeSouzas fee expert, Steven Osber, which actually estimated fees at a higher amount than what the trial court awarded. Moreover, Appellants failure to provide an adequate record is in and of itself fatal to their appeal as to the amount of the attorneys fees award. Argument I. STANDARD OF REVIEW Throughout the Initial Brief, Appellants claim that the trial court erred as a matter of law. However, an order of a trial court granting attorneys fees under Florida Statutes section 57.105 is not reviewed de novo, but under the substantially stricter abuse of discretion standard. See Asinmaz v. Semrau, 42 So. 3d 955, 957 7 (Fla. 4th DCA 2010) (citing Yakavonis v. Dolphin Petroleum, Inc., 934 So. 2d 615, 618 (Fla. 4th DCA 2006)). A trial courts order as to the amount of fees is likewise reviewed under an abuse of discretion standard. See Gibbs Const. Co. v. S. L. Page Corp., 755 So. 2d 787, 790 (Fla. 2d DCA 2000). II. BECAUSE JUDGE PHILIPS, ACTING AS A SUBSTITUTE JUDGE, WAS NOT REQUIRED TO WEIGH AND COMPARE TESTIMONY TAKEN BY HER PREDECESSOR, SHE ACTED WITHIN THE SCOPE OF HER AUTHORITY AND DID NOT ABUSE HER DISCRETION BY RULING ON APPELLEES MOTION FOR ENTITLEMENT TO ATTORNEYS FEES Appellants claim that Judge Philips, as a substitute judge, did not have the authority to rule on Appellees motion for attorneys fees. First, Appellants failed to preserve this issue as it was never raised either before or at the hearing on the motion for entitlement to attorneys fees. See Parlier v. Eagle-Picher Indus., Inc., 622 So. 2d 479, 481 (Fla. 5th DCA 1993) (recognizing the general rule of appellate review, based on practical necessity and fairness to the opposing party and the trial judge, that issues not timely raised below will not be considered on appeal). See also Buckeye Check Cashing, Inc. v. Cardegna, 824 So. 2d 228, 229 (Fla. 4th DCA 2002) approved, 930 So.2d 610 (Fla. 2006) (citing Parlier). Moreover, Appellants argument is completely belied by their own authority. Specifically, Appellants cite to Alvord v. Alvord, 572 So. 2d 925 (Fla. 3d DCA 8 1990), and Kirt v. Sharper, 940 So. 2d 1239 (Fla. 5th DCA 2006), for the proposition that a successor judge may complete any act left uncompleted by his predecessor, if the successor is not required to weigh and compare testimony heard before the other judge. I.B. at 11 (quoting Alvord). This is precisely what happened here. By its very essence, in ruling on Appellants motion to dismiss, Judge Tutor was not required to weigh testimony or take evidence. Rather, Judge Tutor merely had to consider the legal arguments of the parties based upon the contents contained within the four corners of the Complaint. By Appellants logic, a substitute judge would never be permitted to take any actions in a case, thereby rendering the use of substitute judges meaningless. The cases cited by Appellants do not concern purely legal arguments based on the pleadings, but involve a substitute or successor judge who relied on transcripts from evidentiary hearings conducted by their predecessor in ruling on a pending motion. Appellants do not, and cannot, claim that any testimony was introduced regarding Appellees motion for entitlement to attorneys fees, either before or after the issue came before Judge Philips. Accordingly, Judge Philips was authorized to rule upon the motion for entitlement to attorneys fees based upon the legal arguments presented in the papers and at the motion hearing. In fact, this appears to be a textbook example of a situation where a successor judge is not only permitted, but encouraged to rule upon a previously unresolved motion. 9 III. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY DENYING APPELLANTS MOTION TO RECONSIDER ITS EARLIER ORDER ON ENTITLEMENT TO ATTORNEYS FEES Because, as set forth supra, the trial court was acting within its authority as a substitute judge when ruling on Appellees motion for entitlement to attorneys fees, it did not abuse its discretion for failing to reconsider the motion for attorneys fees based upon the argument that Judge Philips was not permitted to make the original ruling. Appellants mistakenly refer to having filed a motion for rehearing. An order granting a motion on entitlement to attorneys fees is non-final. See McIlveen v. McIlveen, 644 So. 2d 612, 612 (Fla. 2d DCA 1994) (citing Gonzalez Engineering, Inc. v. Miami Pump & Supply Co., 641 So. 2d 474 (Fla. 3d DCA 1994); Winkelman v. Toll, 632 So. 2d 130 (Fla. 4th DCA 1994); Trans Atlantic Distributors, L.P. v. Whiland & Co., S.A., 646 So. 2d 752 (Fla. 5th DCA 1994); Hobbs v. Hobbs, 518 So. 2d 439 (Fla. 1st DCA 1988). Accord Cokonougher v. Cokonougher, 543 So. 2d 460 (Fla. 2d DCA 1989). The Florida Rules of Civil Procedure do not permit a party to seek rehearing of a non-final order. See Commercial Garden Mall v. Success Acad., Inc., 453 So. 2d 934, 935 (Fla. 4th DCA 1984) (a non-final order is not subject to a petition for rehearing). Accordingly, despite the misnomer, Appellants motion for rehearing was actually nothing more than a motion to reconsider. See Bettez v. City of Miami, 10 510 So. 2d 1242, 1243 (Fla. 3d DCA 1987) (The fact that the defendant mislabeled his motion as a motion for rehearing . . . cannot change this result as the motion was, in substance, a proper motion for reconsideration). Although a trial court has the inherent authority to reconsider any of its non-final rulings, its decision not to exercise that authority is generally not reviewable. See Hunter v. Dennies Contracting Co., Inc., 693 So. 2d 615, 616 (Fla. 2d DCA 1997). Accordingly, the May, 3, 2011, order denying Appellants motion for reconsideration is not reviewable by this Court. In any event, for the reasons set forth in sub-heading II, the trial court did not abuse its discretion in failing to reconsider the issue of entitlement based upon Judge Philipss status as a substitute judge. IV. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN SETTING THE AMOUNT OF REASONABLE ATTORNEYS FEES Appellants have failed to provide any record support for their contention that the trial court abused its discretion in calculating the amount of attorneys fees. In appellate proceedings the decision of a trial court has the presumption of correctness and the burden is on the appellant to demonstrate error. Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979). An appellate court cannot determine whether a trial court abused its discretion in ruling on the amount of attorneys fees awarded when the appellant fails to provide a hearing 11 transcript. See Joachim v. Joachim, 942 So. 2d 3, 5 (Fla. 5th DCA 2006) (Because the [Appellant] failed to provide this court with a transcript of the attorney's fees hearing in this case, this court cannot determine from the face of the record that the trial court abused its discretion in the fee award); Simpson v. Simpson, 780 So. 2d 985, 989 (Fla. 5th DCA 2001) (same). Appellants failure to provide an adequate record is in and of itself fatal to their appeal as to the amount of the attorneys fees award. Moreover, the only record evidence on the issue of amount of fees shows that the trial court did not abuse its discretion in calculating a reasonable attorney fee. Specifically, in his sworn affidavit, Appellees expert witness, Steven Osber, calculated that the adjusted time and fees totaling 30.2 hours and $5,540.00 in fees are both reasonable and directly related to litigating Defendants Motion to Dismiss. The trial courts award of $4,575.00 is substantially lower than the amount that Mr. Osber provided as reasonable in his sworn opinion when considering that $1,350.00 of the award is directly attributed to Mr. Osbers work. The $3,225.00 awarded to Appellees attorneys is over 40% less than the amount found to be reasonable by the expert. Accordingly, the trial court did not abuse its discretion in calculating the amount of reasonable attorneys fees. 12 Conclusion Based on the foregoing, this Court should affirm the trial courts orders on entitlement and amount of attorneys fees.
Respectfully submitted,
By: DANIEL S. WEINGER Florida Bar No. 172900 13 Certificate of Service I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished via U.S. Mail to Max R. Whitney, Esq., Law Office of Max R. Whitney, P.A., 461 E. Hillsboro Boulevard, Second Floor Suite 200, Deerfield Beach, Florida 33441 on this 24th day of October, 2011. Certificate of Type Size and Style The undersigned counsel certifies that the type and style used in this brief is 14 point Times New Roman. _________________________
CONRAD & SCHERER, LLP Attorneys for Appellee P. O. Box 14723 Fort Lauderdale, FL 33302 Phone: (954) 462-5500
By:__________________________ DANIEL S. WEINGER, ESQ.