Appeal

Timely Move for Appellate Attorney’s Fees (if You have a Basis!)

Posted by David Adelstein on June 25, 2017
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Moving for appellate attorney’s fees? If you do, make sure you TIMELY file a motion!  Appeals take time…in many instances, lots of time…and if there is a basis to recover attorney’s fees, you want to make sure a motion is timely filed and supported by a contractual or statutory basis.

Florida Rule of Appellate Procedure 9.400 governs appellate costs and fees.   This Rule provides:

(a) Costs. Costs shall be taxed in favor of the prevailing party unless the court orders otherwise. Taxable costs shall include

(1) fees for filing and service of process;

(2) charges for preparation of the record and any hearing or trial transcripts necessary to determine the proceeding;

(3) bond premiums; and

(4) other costs permitted by law.

Costs shall be taxed by the lower tribunal on a motion served no later than 45 days after rendition of the court’s order. If an order is entered either staying the issuance of or recalling a mandate, the lower tribunal is prohibited from taking any further action on costs pending the issuance of a mandate or further order of the court.

(b) Attorneys’ Fees. With the exception of motions filed pursuant to rule 9.410(b), a motion for attorneys’ fees shall state the grounds on which recovery is sought and shall be served not later than:

(1) in appeals, the time for service of the reply brief; or

(2) in original proceedings, the time for service of the petitioner’s reply to the response to the petition.

The assessment of attorneys’ fees may be remanded to the lower tribunal. If attorneys’ fees are assessed by the court, the lower tribunal may enforce payment.

(c) Review. Review of orders rendered by the lower tribunal under this rule shall be by motion filed in the court within 30 days of rendition.

The entitlement to attorney’s fees must be supported by a statutory or contractual basis. State, Dept. of Highway Safety and Motor Vehicles v. Trauth, 971 So.2d 906, 908 (Fla. 3d DCA 2007).   It is incumbent on a party to timely file a motion for appellate attorney’s fees if they want to recover attorney’s fees relating to the appeal.  An appellate court has jurisdiction to award appellate attorney’s fees. Bartow HMA, LLC v. Kirkland, 146 So.3d 1213, 1215 (Fla. 2d DCA 2014).   “Once the appellate court determines that an award of appellate attorney’s fees is appropriate, a mandate is issued to the trial court to impose the fees after conducting a hearing. Absent a mandate, the trial court has no jurisdiction to award appellate attorney’s fees.” Respiratory Care Services, Inc. v. Murray D. Shear, P.A., 715 So.2d 1054, 1056 (Fla. 5th DCA 1998).

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Stay Money Judgment Pending Appeal

Posted by David Adelstein on February 24, 2017
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A money judgment is entered against you, but you are going to appeal. Can the collection of the money judgment be stayed pending appellate review? Yes.

Florida Rule of Appellate Procedure 9.310 provides in material portion:

(a) Application. Except as provided by general law and in subdivision (b) of this rule, a party seeking to stay a final or non-final order pending review shall file a motion in the lower tribunal, which shall have continuing jurisdiction, in its discretion, to grant, modify, or deny such relief. A stay pending review may be conditioned on the posting of a good and sufficient bond, other conditions, or both.

(b) Exceptions.

(1) Money Judgments. If the order is a judgment solely for the payment of money, a party may obtain an automatic stay of execution pending review, without the necessity of a motion or order, by posting a good and sufficient bond equal to the principal amount of the judgment plus twice the statutory rate of interest on judgments on the total amount on which the party has an obligation to pay interest. Multiple parties having common liability may file a single bond satisfying the above criteria.

A recent opinion out of the First District Court of Appeals shed some light on these provisions (even though there is conflicting opinions in other appellate jurisdictions). See Silver Beach Towers Property Owners Association, Inc. v. Silver Beach Investments of Destin, LC, 42 Fla. L. Weekly D442c (Fla. 1st DCA 2017).

The Court explained that the money judgment exception above in Rule 9.310(b)(1) “allows a party in an appeal of a money judgment to obtain a stay from the lower tribunal without following the procedure outlined in rule 9.310(a), which requires the filing of a motion to stay with the lower tribunal.Silver Beach Towers, supra.   In other words, if a party wants an automatic stay, the party can follow the procedure in the money judgment exception and the trial court has no authority to modify the bond amount. Indeed, the party does not need to file a motion.

However, if a party does not want to follow this automatic stay procedure, the party can still file a motion with the trial court under 9.310(a) where the trial court can condition the stay on the posting of a bond amount in the court’s discretion. Thus, 9.310(a) gives the party an alternative option to utilize by filing a motion with the trial court and letting the trial court determine the conditions warranting an appellate stay.  For parties appealing a monetary judgment, this case gives them authority to argue under to stay the money judgment for a bond amount that is perhaps less than the automatic stay bond amount found in Rule 9.310(b)(1).

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Quick Note: So You Want to Appeal an Injunction Entered Against You…

Posted by David Adelstein on January 17, 2017
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So you want to appeal the issuance of an injunction entered against you. (There are numerous reasons why injunctive relief may be entered by the court in a civil context – check out this article as an example.) “If the injunction rests on factual findings, then a trial court’s order must be affirmed absent an abuse of discretion; but if the injunction rests on purely legal matters, then an injunction is reviewed de novo.” Nipper v. Walton County, Florida, 42 Fla. L. Weekly D171a (Fla. 1st DCA 2017). Stated differently, there is an abuse of discretion standard of appellate review if the injunction is based on factual findings by the trial court. But, assuming the facts are not in dispute and the injunction is based on a matter of law, there is a de novo standard of appellate review.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Appealing Entitlement to Attorney’s Fees

Posted by David Adelstein on January 08, 2017
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After a party prevails in a lawsuit, the next issue to consider is attorney’s fees, and this is oftentimes a driving issue because attorney’s fees can be fairly significant depending on the nature of the dispute. For example, assume you lost a trial and the other side moved for attorney’s fees. You challenged entitlement to attorney’s fees and lost – the trial court granted the other side’s motion for attorney’s fees. An evidentiary hearing was held and an attorney’s fees judgment was entered. Alternatively, assume you moved for attorney’s fees and the trial court denied your motion. Are these issues relating to entitlement to attorney’s fees appealable? Yes.

 

“‘A party’s entitlement to an award of attorney’s fees under a statute or procedural rule is a legal question subject to de novo review.’” Newman v. Guerra, 2017 WL 33702 (Fla. 4th DCA 2017) quoting Nathanson v. Morelli, 169 So.3d 259, 260 (Fla. 4th DCA 2015).

 

For instance, in a recent case, an owner established that a contractor’s lien was fraudulent. The contractor, however, prevailed in its breach of contract claim. The owner moved for his entitlement to statutory attorney’s fees since he prevailed in the contractor’s lien action. The trial court denied the owner’s motion for attorney’s fees because after considering all of the claims asserted in the case found that the contractor prevailed on the significant issues in the case. The owner appealed the trial court’s denial and this issue was subject to a de novo standard of appellate review.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Trial Court’s Responsibility is NOT to Rewrite a Contract

Posted by David Adelstein on November 25, 2016
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Many business disputes involve the interpretation and the application of a contract. This is because business transactions typically involve a contractual relationship governing the rights, liabilities, risks, and recourse relating to the transaction.   When there is a dispute regarding the transaction, this gives rise to a breach of contract claim.  

It is important to understand that a trial court’s responsibility is NOT to rewrite the terms of a contract so that the risks are allocated differently.  As explained:

[C]ourts are ‘powerless to rewrite [a] contract to make it more reasonable or advantageous to one of the parties…or to substitute [their] judgments for that of the parties to the contract in order to relieve one of the parties from the apparent hardships of an improvident bargain.  

Underwater Engineering Services, Inc. v. Utility Board of the City of Key West, 194 So.3d 437, 444 (Fla. 3d DCA 2016) quoting Fernandez v. Homestar at Miller Cove, Inc., 935 So.2d 547, 551 (Fla. 3d DCA 2006).

For this reason, a trial court’s interpretation of a contract is reviewed on appeal with a de novo standard of appellate review – the appellate court will refer to the record in the trial court anew (de novo) without giving deference to the trial court’s findings.

For example, in Underwater Engineering Services (a case I discussed here), the trial court found that a contractor defectively constructed a portion of its work and awarded damages to the owner for replacing the defective work. On appeal, however, the appellate court looked at the underlying contract between the owner and the contractor that required the owner to give the contractor notice before replacing defective work. (The trial court’s final judgment did not reference this contractual provision or provide any application of the provision). The trial court’s record established that such notice was never given to the contractor so the contractor was never in a position to replace the defective work. Based on this contractual provision–remember, courts are not there to rewrite parties’ contracts–the appellate court reversed the trial court’s findings / judgment in favor of the owner because the owner never provided the contractor the required notice per the unambiguous language in the contract.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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What Constitutes an Enforceable Contract?

Posted by David Adelstein on November 17, 2016
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An enforceable or valid contract requires an offer, acceptance of that offer, consideration, and sufficient specification of material terms. Jericho All-Weather Opportunity Fund, LP v. Pier Seventeen Marina, 41 Fla. L. Weekly D2565a (Fla. 4th DCA 2016). Whether a contract actually constitutes an enforceable contract is subject to a de novo standard of appellate review; this is the same appellate standard of review pertaining to an appeal of a trial court’s interpretation of a contract. See id.

The case in Jericho All-Weather Opportunity Fund exemplifies a party suing on the wrong contract and, thus, an appellate court reversing a judgment in favor of a plaintiff and remanding for the trial court to enter judgment in favor of the defendants. As you can imagine, this is a harsh outcome in an appeal – winning a trial only for the appellate court to reverse and mandate judgment for the party that lost during the trial.

In this case, the plaintiff (borrower) was seeking a construction loan. It entered into a second loan commitment with the defendant (lender) whereby the defendant agreed to loan the plaintiff money for the refinancing of property and constructing the project. The court explained that a loan commitment is “a lender’s binding promise to a borrower to lend a specified amount of money at a certain interest rate, usually within a specified period and for a specific purpose (such as buying real estate).” Jericho All-Weather Opportunity Fund, supra, quoting Armstrong Bus. Servs., Inc. v. AmSouth Bank, 817 So.2d 665, 673-74 (Ala. 2001).

The plaintiff and defendant then entered into a construction loan. The loan agreement was contingent on the actual closing of the loan—the closing of the loan was the consideration for the loan agreement. The loan agreement did not require the defendant to fund the loan as the agreement was predicated on the funding having occurred. However, the loan never closed and the plaintiff sued the defendant for breach of the loan agreement. The plaintiff prevailed at trial. The defendant appealed arguing that the loan agreement was not an enforceable contract as it never became a valid contract because the funding never occurred. The appellate court agreed stating that the plaintiff should have sued for breach of the second loan commitment and not the loan agreement. (Notably, the plaintiff had strategic reasons for not suing on the second loan commitment since it precluded the plaintiff from pursuing certain damages based on a waiver of consequential damages provision.  Unfortunately, by not suing under the second loan commitment, the plaintiff did not sue on an enforceable contract.)

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Moving to Enforce the Appellate Court’s Mandate

Posted by David Adelstein on September 16, 2016
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When an appellate opinion is issued (and after any post-opinion motions have been resolved or the timing to file same has expired), oftentimes the matter is remanded back to the trial court to implement the appellate court’s opinion or mandate.   This mandate is the “official mode of communicating the judgment of the appellate court to the lower court, directing the action to be taken or the disposition to be made of the cause by the trial court.” Tierney v. Tierney, 290 So.2d 136, 137 (Fla. 2d DCA 1974).  In other words, once that mandate is issued, the trial court is obligated to comply.

What happens if the trial court does not comply with the appellate court’s mandate in the appellate opinion?   A party can move to enforce the mandate in the appellate court.

In Florida Digestive Health Specialists, LLP v. Ramon E. Colina, M.D., LLC, 41 Fla. L. Weekly D2078a (Fla. 2d DCA 2016), the appellate court issued an opinion that remanded the matter back to the trial court to implement the mandate in the opinion.   In this matter, the mandate explained how the trial court was to implement a temporary injunction to enforce a restrictive covenant / non-compete agreement.   On remand, however, the trial court issued an order that did not fully comply with the appellate court’s mandate. This prompted a party to file a motion to enforce the mandate with the appellate court (as well as a notice of appeal of the trial court’s order that did not comply with the appellate mandate).

The appellate court granted the motion to enforce its mandate instructing the trial court to enter an order pursuant to its mandate:

This [appellate] court “is vested with all the power and authority necessary for carrying into complete execution all of its judgments, decrees, orders, and determinations in the matters before it.” § 35.08, Fla. Stat. (2015). “No principle of appellate jurisdiction is more firmly established than the one which provides that a trial court utterly lacks the power to deviate from the terms of an appellate mandate.” Mendelson v. Mendelson, 341 So. 2d 811, 813-14 (Fla. 2d DCA 1977). That is, “upon the issuance of our mandate, the trial court is without authority to take any action other than to compose an order carrying out the terms of the mandate.” City of Miami Beach v. Arthree, Inc., 300 So. 2d 65, 67 (Fla. 3d DCA 1973). The trial court must execute the mandate without variance or examination; it may not review the mandate — “even for apparent error” — or grant any additional or further relief. Rinker Materials Corp. v. Holloway Materials Corp., 175 So. 2d 564, 565 (Fla. 2d DCA 1965) (quoting In re Sanford Fork & Tool Co., 160 U.S. 247, 255 (1895)). Further, “any motion or petition to vary the judgment of this court may not be entertained without the express permission of this court to do so.Arthree, 300 So. 2d at 67.

Florida Digestive Health Specialists, supra. 

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Appealing Trial Court’s Interpretation of Contract

Posted by David Adelstein on July 24, 2016
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Many disputes turn on the interpretation of a contract, contractual term, or written document. When the trial court rules on the interpretation, there will typically be a party that disagrees with the court’s interpretation. In these instances, this party will appeal the trial court’s interpretation. There is a value to appeal because the appellate standard of review is de novo meaning the appellate court will review the trial court’s record anew without giving deference to the trial court’s interpretation.

The interpretation of a written contract is a question of law and the appellate court construes the contract under a de novo standard of review. Notably, construction of contractual terms is a question of law, which we review de novo, provided that the language is clear and unambiguous and free of conflicting inferences.

Ciklin Lubetz Martens & O’Connell v. Patrick J. Casey, P.A., 41 Fla.L.Weekly D1678b (Fla. 4th DCA 2016 (internal quotations and citations omitted).

For example, in a dispute concerning a law firm’s partnership agreement as it pertains to the withdrawal of a partner, the trial court made an interpretation of the partnership agreement that resulted in certain amounts being awarded to the withdrawing partner. The law firm appealed the trial court’s interpretation and the appellate court, examining the partnership agreement under a de novo standard of appellate review, reversed certain interpretations by the trial court. This is because the appellate court was able to examine the partnership agreement anew without providing any deference to how the trial court interpreted the partnership agreement.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Asserting Punitive Damages (or Appealing the Decision to Allow for Punitive Damages)

Posted by David Adelstein on July 09, 2016
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So, you are interested in pursuing punitive damages. Then you MUST comply with the requirements of Florida Statute s. 768.72. This statute provides in relevant part:

(1) In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages. The claimant may move to amend her or his complaint to assert a claim for punitive damages as allowed by the rules of civil procedure. The rules of civil procedure shall be liberally construed so as to allow the claimant discovery of evidence which appears reasonably calculated to lead to admissible evidence on the issue of punitive damages. No discovery of financial worth shall proceed until after the pleading concerning punitive damages is permitted.

(2) A defendant may be held liable for punitive damages only if the trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of intentional misconduct or gross negligence. As used in this section, the term:

(a) “Intentional misconduct” means that the defendant had actual knowledge of the wrongfulness of the conduct and the high probability that injury or damage to the claimant would result and, despite that knowledge, intentionally pursued that course of conduct, resulting in injury or damage.

(b) “Gross negligence” means that the defendant’s conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.

It is NOT appropriate to merely plead punitive damages in your initial lawsuit and think by virtue of this allegation that you will be able to argue punitive damages to the jury. That would not be fair, would it? This would simply allow a party in every civil lawsuit to argue punitive damages to the jury. 

Rather, and as you can see from the statute, you must reasonably show by proffering evidence to the trial court that you have a reasonable basis to the recovery of such damages. But, you are able to take discovery relating to evidence you want to proffer associated with punitive damages (assuming the discovery is reasonable).   And, presuming the trial court allows you to argue punitive damages to the jury, a defendant should only be liable for punitive damages based on clear and convincing evidence that the defendant was guilty of intentional misconduct or gross negligence, as defined in the statute.  The statute provides standards in order for a party to pursue and argue punitive damages to the jury.

What do you do if you are a defendant and the trial court grants the plaintiff’s motion for leave to include a punitive damages component? Punitive damages are a damages-component you do NOT want argued to the jury.

Certiorari review is available to determine whether a trial court has complied with the procedural requirements of section 768.72, but not to review the sufficiency of the [proffered] evidence.” HCA Health Services of Florida, Inc. d/b/a St. Lucie Medical Center v. Byers-McPheeters, 2016 WL 3549595, *1 (Fla. 4th DCA 2016).  Stated differently, you can seek a writ of certiorari arguing the trial court failed to properly comply with s. 768.72, but not to review the evidence proffered to the trial court relating to the trial court’s decision to allow a punitive damages component.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Appeals Regarding Personal Jurisdiction

Posted by David Adelstein on June 18, 2016
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In a matter where a commercial landlord sued its tenant’s personal guarantors as the result of the tenant’s breach of the lease, the guarantors moved to dismiss the lawsuit based on personal jurisdiction. Check here for more on this matter.

A trial court’s ruling on personal jurisdiction is an immediately appealable ruling–a trial court’s determination relating to personal jurisdiction is an immediately appealable non-final order (non-final order meaning the order does not finally dispose of the lawsuit). See Fla.R.App.P. 9.130(a)(3)(C)(i).

A determination on personal jurisdiction is an important issue. If a court grants a motion to dismiss based on lack of personal jurisdiction, this means you cannot sue that entity in that state, e.g., Florida. And, if a court denies a motion to dismiss based on lack of personal jurisdiction, this means the moving party is subject to a lawsuit in that state, e.g., Florida. For this reason, the determination is appealable. The moving party will want to appeal if the court denies its motion to dismiss for lack of personal jurisdiction and it is now subject to being sued in Florida. Conversely, the plaintiff (suing party) will want to appeal if the court grants the motion to dismiss for lack of personal jurisdiction and the plaintiff can no longer sue that party in Florida.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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