Michele K. Feinzig, along with Plaintiff’s trial counsel, Scott Sheftall of Sheftall & Torres, P.A., represented the Plaintiff/Appellant in an appeal of a defense final judgment following a zero verdict in a negligent security case (Third DCA Case No. 3D10-975). The Plaintiff was robbed and then raped at gunpoint while working the graveyard shift as a retail cash clerk early Christmas morning. She brought a negligent security action against the store due to its failure to provide adequate security despite a history of previous violent crimes, both on the premises and in the vicinity. During the trial, the Defendant store admitted that the Plaintiff was not negligent and in no way contributed to her being robbed and raped. Also, the Defendant store’s expert testified that had he been advising the store before the attack on the Plaintiff, he would have recommended that the store add an unarmed security guard to its security measures. The defense expert admitted that if such an unarmed security guard had been in place, the Plaintiff more than likely would not have been raped. Despite this and other compelling evidence supporting the Plaintiff’s case against the store, the jury came back with a zero verdict because it was allowed to hear improper, prejudicial testimony from the defense’s expert that this was a “victim-targeted crime” which could neither be foreseen nor prevented by any reasonable security measures. 

In February 2012, the Third DCA reversed for a new trial, finding that the store’s expert’s testimony that this was an unforeseeable, unpreventable “victim-targeted crime” was beyond the scope of his expertise, and should not have been admitted. The store moved for rehearing and rehearing en banc, and in November 2012, the Third DCA denied both motions. All of the appellate judges at the Third DCA, including those on the original panel, joined in the denial of rehearing en banc. With respect to rehearing, one Judge who was on the original panel change her mind and wrote a dissent, stating that she would grant rehearing and affirm the jury’s zero verdict. Nonetheless, the majority’s reversal and denial of rehearing, along with the entire Court’s denial of rehearing en banc, ensured Plaintiff’s entitlement to a new trial at which she could seek fair compensation for the damages she has suffered due to the store’s negligence, without being tainted by the store’s expert’s “victim-targeted crime” theory. The parties have since reached a confidential settlement.

The Law Offices of Robin Bresky recently won a motion for rehearing of an order of contempt that held our client in contempt for failure to pay an award of temporary attorney’s fees. We are in the process of appealing the underlying order requiring our client to pay fees to opposing counsel. The parties were divorced in 2005 and the final judgment of dissolution incorporated a marital settlement agreement that detailed the former husband’s alimony obligation. In 2011, the former wife filed a petition for modification of alimony seeking an increase in her alimony based on her allegations that the parties’ financial circumstances had changed substantially. As part of her petition, the former wife requested an award of temporary attorney’s fees. The trial court conducted a hearing and awarded the former wife $79,333 in attorney’s fees for the modification litigation.

Our client, the former husband, was unable to pay the temporary fee award due to a downturn in his business attributable to poor economic conditions. The former wife later filed a motion for contempt against our client based on his failure to pay. The trial court conducted a contempt hearing and then granted the former wife’s motion to hold our client in contempt.

Our firm filed a motion for rehearing of the order granting the former wife’s motion for contempt. We stressed that civil contempt requires a court finding of both a party’s willful non-compliance and that a party has the present ability to comply with the court’s order. We argued that the trial court had failed to adequately identify the means by which our client could satisfy the purge amount, and also that the order of contempt was improperly based in part upon a prospective ability to pay because it assumed our client would be able to make future regular payments to the former wife’s attorney. We argued that this framework ran contrary to the legal principle that contempt must be based upon a present ability to pay. We also argued that the trial court had failed to make findings that our client had equity in certain assets that the trial court had identified.

The trial court held a hearing and agreed with our position. The trial court rendered an order granting the motion for rehearing of the order granting the former wife’s motion for contempt. This positive outcome undid the order of contempt and prevented our client from being put in jail for not paying an attorney’s fee award that he could not afford to pay.

Arafat v. U-Haul Center Margate, 4D10-1179
June 22, 2011

The Fourth District addressed a writ of certiorari challenging a circuit court’s dismissal of an appeal as untimely. Arafat filed a complaint in small claims county court for $5,000 based on a statement of claim for items that were removed from her storage unit. The court entered judgment for the defendants on May 21, 2009. Arafat filed a motion for rehearing on June 1, 2009 but did not actually serve it until June 3, 2009.  The trial court denied the motion but ruled the denial would not take effect until September 1, 2009.  On September 24, 2009 Arafat filed a notice of appeal.  The defendants moved to dismiss the appeal, arguing that Arafat’s motion for rehearing was untimely and that because the judgment came from a nonjury trial, Florida Rule of Civil Procedure 1.530 mandates that a motion for rehearing be filed within ten days of the final judgment.  The circuit court agreed and dismissed the appeal.
On appeal, the Fourth District noted that Florida Small Claims Rule 7.180 provides that a motion for new trial must be filed within ten days. Florida Rule of Civil Procedure 1.530 provides that a motion for new trial or rehearing must be served within ten days. Because this case originated in small claims, and because the Florida Small Claims Rules do not incorporate Florida Rule of Civil Procedure 1.530, the Fourth District held that the motion for rehearing was timely. Florida Small Claims Rule 7.230 provides that appeals from small claims court shall be governed by the Florida Rules of Appellate Procedure. Under Florida Rule of Appellate Procedure 9.020(h), an authorized and timely motion for new trial or rehearing tolls rendition of the order of the trial court until disposition of the motion. The Fourth District quashed the dismissal of the appeal and remanded the case to be decided on the merits.