Ross v. Ross, 4D11-107

The Fourth District recently wrote to address an appeal from an order that forced the sale of the Former Husband’s residence to satisfy his alimony arrearages. The Former Wife had drafted the ten-page order that the Court characterized as “very unfavorable” to the Former Husband, as it included findings that he acted in bad faith and committed fraud upon the court. The Fourth DCA found in favor of the Former Wife on four of the Former Husband’s five issues on appeal. However, the Fourth DCA agreed with the Husband’s argument that, under Perlow v. Berg-Perlow, 875 So. 2d 383 (Fla. 2004) the trial court erred by entering the order submitted by the Former Wife verbatim without Former Husband having the opportunity to review it first. The Former Wife’s overreaching resulted in the case being reversed and remanded for the entry of a new order after Former Husband had an opportunity to submit his own proposed order or to object to that submitted by the Former Wife.

Need help with an appeal? Contact The Law Offices of Robin Bresky at 561-994-6272,  info@breskyappellate.com or http://www.breskyappellate.com. The Law Offices of Robin Bresky is a dedicated appellate law firm handling civil court appeals and providing effective trial and litigation support. The firm serves Boca Raton, Delray Beach, Boynton Beach, West Palm Beach, Coral Springs, Parkland, Margate, Lauderhill, Fort Lauderdale, Deerfield Beach, Broward County, Palm Beach County, and the trial courts and lower tribunals within the jurisdiction of the 4th District Court of Appeals.

Florida Rule of Appellate Procedure 9.400(b) states:

A motion for attorneys’ fees may be served not later than the time for service of the reply brief and shall state the grounds on which recovery is sought. The assessment of attorneys’ fees may be remanded to the lower tribunal. If attorney’s fees are assessed by the court, the lower tribunal may enforce payment.

We recently filed a motion for attorneys’ fees in the Fourth District Court of Appeal after the opposing party voluntarily dismissed her own motion for contempt and petition for modification of the final judgment as to child custody in the trial court. We had appealed the trial court’s order denying our client’s motion to dismiss for lack of personal jurisdiction. Neither the parties nor the child in this family law case had any relationship to the State of Florida.

After we submitted an Initial Brief in the appellate court, the opposing party voluntarily dismissed her motion for contempt and petition for modification in the trial court and asked the appellate court to dismiss the pending appeal. We then filed a successful motion for attorneys’ fees in the Fourth District Court of Appeal. Having secured entitlement to fees, we will now be going back to the trial court to obtain the actual award of fees.

If you have any questions regarding this case, or if you have any other appellate or trial support questions,  contact The Law Offices of Robin Bresky (http://www.breskyappellate.com) at 561-994-6273.

The issue was whether a trial court’s order denying exceptions to a general magistrate’s report and affirming the report, with several exceptions, was appealable as a final order or an appealable non-final order.

We represented the Father of an infant child in a contentious custody dispute over timesharing and other issues. A general magistrate entered a report with recommendations regarding a time-sharing schedule, child support, and daycare for the child.  The general magistrate also found that the Father had been involuntarily absent from the child’s life due to the Mother’s actions and her failure to facilitate a relationship between the Father and child.  The trial court judge affirmed and implemented the magistrate’s report with several exceptions, and the Mother appealed to the Fourth District Court of Appeal.

We filed a motion to dismiss the appeal, arguing (1) that the trial court’s order was neither a final order nor an appealable non-final order under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iii), and (2) that the appeal should be dismissed based on the Mother’s failure to file an Initial Brief within the time frame required by Florida Rule of Appellate Procedure 9.130(e).  The court of appeals granted our motion, and we succeeded in obtaining dismissal of the Mother’s appeal for our client.

The issue was whether the trial court abused its discretion in ordering our client and our client’s attorney to pay 57.105 attorney’s fees in a defamation action.

Our client sued the opposing party for defamation after being forced out of business by the opposing party’s outrageous allegation that our client, a jeweler, replaced diamonds from the opposing party’s ring with cubic zirconias. Even though our client vehemently denied the accusation, the opposing party filed a police report accusing our client of replacing the diamonds with artificial stones. Several days later, however, the opposing party contacted the police to notify them that the diamonds in the ring were not swapped but were the original diamonds. Nevertheless, the opposing party moved for summary judgment and 57.105 attorney’s fees, against our client and our client’s attorney, stating that the accusation was believed to be true and our client failed to show malice. The trial court granted the summary judgment and the 57.105 fees reasoning that the opposing party was entitled to a qualified privilege for reporting a crime to the police.

The Fourth District Court of Appeal reversed the trial court’s 57.105 award and hinted that summary judgment was inappropriate. Specifically, the court noted that when a trial court grants an award of 57.105 attorney’s fees, “the reviewing court must determine whether the trial court abused its discretion in finding no justifiable issues of law or fact.”  In other words, the court held that “[a] case is frivolous” justifying the award of fees, “when it can be said to be ‘completely without merit in law’ or ‘contradicted by overwhelming evidence.’” As applied to our client, the court found that express malice may be inferred from the opposing party’s unreasonable conduct in accusing our client of stealing the diamonds and then, without ever investigating the matter, filing a police report. The court noted that, at the time the opposing party filed the report accusing our client of theft, the opposing party made no attempt to find out if the accusation was true. The court concluded that there was a reasonable inference that the opposing party intended to harm our client by getting the police involved, “perhaps because of their heated exchange the day before.”

Editor’s Note: At the time of writing this blog entry, a mandate from the court had not been issued.

The issue of whether the trial court erred in denying our client’s motion for attorney’s fees based on a charging lien merely because our client did not call an independent expert witness to testify concerning the reasonableness of the fees has been certified to the Florida Supreme Court.

Our client, an attorney, represented the Former Wife in a dissolution of marriage proceeding. Our client and the Former Wife entered into a retainer agreement which provided for an initial non-refundable retainer, an hourly rate for attorney and paralegal time, and a lien for monies due under the agreement. The agreement also required the Former Wife to notify our client, in writing, within thirty days, if there was an objection to the fees charged. The Former Wife paid $48,268 of the total billed, leaving a balance of $57,785.28. The Former Wife did not object in writing to the fees charged. In the dissolution action, our client filed a Notice of Charging Lien, a Corrected Motion for Entry of Final Judgment Adjudicating Charging Lien and for Entry of a Money Judgment, and a Motion to Withdraw. The trial court granted the Motion to Withdraw, held a final hearing of the dissolution, and heard our client’s attorney’s fees motion. Although the trial court received into evidence the retainer agreement, the complete billing history, and the Notice of Charging Lien, the trial court denied our client’s motion citing to the missing testimony from an independent expert witness concerning the reasonableness of the fees.

The Fourth District Court of Appeal reluctantly affirmed the trial court’s decision, but certified the question to the Florida Supreme Court as to whether independent expert testimony was necessary. The Fourth District Court of Appeal noted that “[t]here is little reason to simply increase litigation costs by requiring another lawyer to testify as an expert. After all, each party usually chooses a lawyer friend . . . [, and] [t]he trial court is ultimately left to decide the reasonableness of the rate charged and time expended, and then to tax the cost of the expert witness against the losing party.”

The issue was whether our client was entitled to an award of attorney’s fees, under the settlement agreement between the parties and as a prevailing party, after the opposing party failed to honor certain provisions in their settlement agreement.

After years of litigating a probate matter, our client and the opposing party entered into a settlement agreement. A provision in the settlement agreement stated that the opposing party would provide, within 45 days, possession and access to medical records that were necessary for the treatment and diagnosis of our client’s medical conditions, or pay for the reasonable cost incurred from compelling performance. When the opposing party failed to provide possession and access to the records, our client filed a motion to compel compliance and requested an award of reasonable attorney’s fees. The trial court granted our client’s motion, but held that the breach of the settlement was not material and denied our client’s request for attorney’s fees. The opposing party appealed the trial court’s order arguing for an award of attorney’s fees because our client failed to prove that the breach was material. Our client cross-appealed arguing for attorney’s fees as the true prevailing party.

The Fourth District Court of Appeal performed a de novo review of the matter and held that the trial court did not err in denying the opposing party’s request for attorney’s fees, but the trial court did err in failing to award our client the reasonable attorney’s fees requested and also erred in determining that the opposing party’s breach, as a whole, was not material. Thus, the Fourth District Court of Appeal affirmed the denial of attorney’s fees to the opposing party, but reversed and remanded the denial of attorney’s fees to our client with directions to award our client reasonable attorney’s fees under the settlement agreement and as a prevailing party.

Editor’s Note: At the time of writing this blog entry, a mandate from the court had not been issued.

Many of us are taught at a young age to trust the men and women of the cloth; cloth in this case consisting of a white poly-cotton blend lab coat.  In most cases, we trust our physicians with our lives and the lives of our loved ones.  As patients, we listen and do as directed by our doctors because afterall, they do know best.  In the context of medical malpractice, however, this doctor/patient relationship can become tenuous when the patient feels the doctor’s care has dropped below the acceptable standard and resulted in injury.   Trusting patients who feel they have been injured at the hands of a physician quickly turn into inquisitive clients in search of justice.  Our firm recently received a favorable Opinion from the Fourth District Court of Appeal in the context of a medical malpractice action.  Specifically, the decision hinged on the statute of limitations in the medical malpractice arena and when the time for said cause of action begins to accrue.

Florida Statue 95.11(4)(b) governs the limitations period for a medical malpractice action.  The section states that an action for medical malpractice shall be commenced within 2 years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence . . . .”  In Tanner v. Hartog, 618 So. 2d 177, 181 (Fla. 1993), the Florida Supreme Court articulated the standard to be applied as follows:  “the knowledge of the injury as referred to in the rule as triggering the statute of limitations means not only knowledge of the injury but also that there is a reasonable possibility that the injury was cause by medical malpractice.”  Certainly there are injuries that clearly are caused by medical malpractice.  For example, going into surgery to have a cyst removed from your hand and waking to find yourare missing your left leg.  But what happens when you experience a less conspicuous injury and although your body is telling you one thing, the physician whose continuing care you are under is reassuring you that all is well and that in time, things will be better?  This is the precise issue involved in our case.  Essentially there was a factual dispute as to when the patient knew or should have been aware that her injuries may have been the result of medical malpractice.  And, instead of submitting that question to the jury for determination, the judge decided at summary judgment that the statute of limitations had run.  The Fourth District Court of Appeal reversed the judge’s decision in our favor and found that the judge had erred in taking that question from the jury.  The Court, recognizing the inherent trust placed upon a physician by a patient, stated “too great is the faith laypersons place in their physicians for the law to impute a duty on them to investigate malpractice in every change in diagnosis or treatment.”  (quoting from Cunningham v. Lowery, 724 So. 2d 176, 179 (Fla. 5th DCA 1999).  Thus, it appears the courts have tried to impose a balance between patient accountability and the importance of preserving a trusting doctor/patient relationship during and throughout treatment.  Most important, however, is that the question will often hinge upon a factual determination and will more often than not be left to the province of the jury to decide.