Desouza Answer Brief (Fla. 4th DCA)

8/10/2019 Desouza Answer Brief (Fla. 4th DCA)

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FOURTH DISTRICT COURT OF APPEALS

LOWER CASE NO.: 10-21842 CACE134DCA CASE NO.: 4D11-1909

MAX R. WHITNEY andMAX R. WHITNEY, P.A.,

Appellants,

v.

FRANCISCO DESOUZA,

Appellee.

ANSWER BRIEF OF FRANCISCO DESOUZA

DANIEL S. WEINGER, ESQ.

CONRAD & SCHERER, LLPAttorneys for AppellantP. O. Box 14723Fort Lauderdale, FL 33302Tel: (954) 462-5500Fax: (954) 463-9244


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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 notRequired 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 AttorneysFees ............................................................................................................ 7

III. The Trial Court Did Not Abuse Its Discretion by DenyingAppellants Motion to Reconsider its Earlier Order on Entitlement toAttorneys 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


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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


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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


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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


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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.


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Statement of Case and Facts1

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

1Despite informing this Court in response to an order to show cause that the Initial Brief was nottimely 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 statementthat is accompanied by a citation to the record. In fact, the majority of the statements inAppellants Statement of the Case and Facts are either impermissibly argumentative orunsupported by the record in any event. Accordingly, this Court should disregard any and allstatements contained in Appellants Statement of the Case and Facts that are not supported bya corresponding record citation. SeeR.E. v. Department of Children and Families, 996 So.2d929, 930 n.1 (Fla. 4th DCA 2008); Greenfield v. Westmoreland, 2007 WL 518637 (Fla. 3d DCAFebruary 21, 2007). See alsoFla. R. App. P. 9.210(b)(3).


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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


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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


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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


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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. SeeAsinmaz v. Semrau, 42 So. 3d 955, 957


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(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. SeeGibbs 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 alsoBuckeye Check Cashing, Inc. v. Cardegna, 824 So. 2d 228, 229

(Fla. 4th DCA 2002) approved,930 So.2d 610 (Fla. 2006) (citingParlier).

Moreover, Appellants argument is completely belied by their own authority.

Specifically, Appellants cite to Alvord v. Alvord, 572 So. 2d 925 (Fla. 3d DCA


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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 (quotingAlvord). 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.


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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 forthsupra, 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. SeeBettez v. City of Miami,


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transcript. SeeJoachim 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.


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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. WEINGERFlorida Bar No. 172900


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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, LLPAttorneys for Appellee

P. O. Box 14723Fort Lauderdale, FL 33302

Phone: (954) 462-5500

By:__________________________DANIEL S. WEINGER, ESQ.

Desouza Answer Brief (Fla. 4th DCA)

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