Firm Helps Condominium Association Obtain Reversal of Order that Dismissed Construction Law Case
Case No. 4D14-1880, Opinion issued January 20, 2016, Order on Rehearing Issued March 2, 2016*
The Firm’s client, Townhouses at Jacaranda Condominium Association, Inc., recently prevailed in an appeal it took from an order dismissing its case against two construction contractors. Of Counsel attorney Michele K. Feinzig worked on the appeal with Townhouses’ trial counsel, Ron D’Anna. Our client had sued the two contractors for defective construction repair work at the townhouse community in Plantation, FL. The trial court, however, dismissed the case against those contractors, because the Townhouses had failed to attach certain exhibits to its second amended complaint within the time allowed by the court. The Fourth District Court of Appeal reversed the dismissal, finding it was “improper because the trial court failed to articulate findings warranting the extreme sanction of dismissal for this procedural error,” and further, that “the court’s choice to dismiss the case, rather than impose a lesser sanction, was too severe a sanction.” Our client is thrilled that it will be able to proceed with its case against these two contractors.
In addition to winning the appeal, our client won a significant ruling with regard to appellate attorneys’ fees, which all parties had sought pursuant to a prevailing party fee provision in the parties’ contracts. The Fourth District originally entered orders conditionally granting not only our client’s motion for appellate attorneys’ fees, but also the two losing contractors’ motions for appellate attorneys’ fees, such that whoever ultimately prevailed in the trial court could recover appellate fees. Seeing the injustice of our client being potentially liable for appellate attorneys’ fees incurred by the losing parties on appeal, Attorney Feinzig crafted a motion for rehearing argument, based on case law providing that appellate fees need not be conditionally granted when they are sought by an appellee that should have confessed error. Attorney Feinzig collaborated on the rehearing motion and jointly drafted it with Attorney D’Anna, and the Fourth District agreed with the motion, granted rehearing, and reversed its prior orders conditionally granting the two losing contractors’ appellate fees, ruling that the contractors’ motions for appellate fees were denied. This ruling relieves our client from any potential responsibility for those contractors’ appellate fees, and leaves intact our client’s right to recover its appellate attorney’s fees, should it be the prevailing party on remand in the trial court.
*The Opinion is not final yet, as the Mandate has not issued.