Last week I received a comment on my last blog post “Attorney’s Fees Awarded in Lawsuit Filed Prematurely Against Condominium Association.” The comment was from Erwin Rosenberg, who was counsel for the appellee in the case of Point East Four Condo. Corp., Inc. v. Zevuloni & Assoc., Inc., No. 4D09-3221, 2010 WL 4962853 (Fla. 4th DCA Dec. 8, 2010). Mr. Rosenberg offered a firsthand account of his side of the case, which isn’t readily available from reading the opinion published by the Fourth District. In its opinion, the Fourth District awarded attorneys fees to a condominium association after it found that a public adjuster had sued for its fee prematurely.
In the interest of providing the other side of the case, I have republished Mr. Rosenberg’s comment in its entirety below:
I was the attorney representing the public adjuster Zevuloni & Associates, Inc. when the case was filed. The 4th DCA misunderstood what was really decided when the case was initially finally dismissed. I filed the lawsuit based on the fact that Pointeast had breached its contract with the public adjuster by terminating the public adjuster’s employment. Judge Moe was the initial judge. He dismissed with leave to amend (that Pointeast had collected insurance money). However, I filed a motion for rehearing based on caselaw that supports the position that it is not necessary to wait for the money to be collected by the association prior to suing the association for its breach of contract. However, Judge Moe had not received a copy of my motion for rehearing (in fact the court file showed two copies, so I either mistakenly sent 2 for filing or the copy I sent to the attention of Judge Moe was simply placed in the court file). Then Pointeast filed a motion for final judgment. I mentioned to Judge Moe that I had a pending motion for rehearing. He said he didn’t have it and that I should have set the motion for rehearing for a hearing. He added the words "without prejudice" to Pointeast’s draft order. Judge Moe recognized I may have a valid legal basis to file a separate lawsuit at that time even if no money had been collected by Pointeast. But Judge Moe would not consider the motion for rehearing since he had not received it and it had not been set for hearing. It happened to have been Judge Moe’s last day as a judge. Later Judge Tuter (the subsequent judge) said that (unlike Judge Moe) he would have ruled on my motion for rehearing before entering a final judgment. However, Judge Tuter said that since I had not filed an objection or something against Judge Moe’s final judgment, so Judge Tuter could not grant my old motion for rehearing (which had been filed after Judge Moe’s initial dismissal with leave to amend). The text of that old motion for rehearing is as follows:
IN THE CIRCUIT COURT OF THE 17TH
JUDICIAL CIRCUIT, IN AND FOR
BROWARD COUNTY, FLORIDA
CASE NO. 08-15677
ZEVULONI & ASSOCIATES, INC.
POINT EAST FOUR CONDOMINIUM,
PLAINTIFF’S MOTION FOR REHEARING OF ORDER DISMISSING COMPLAINT
This Court dismissed the Complaint because this Court believed that Plaintiff needed to allege that Defendant collected insurance proceeds. Apparently this Court assumed that the method of calculating damages in the contingency contract must remain contingent on the result of collecting insurance proceeds. However, this assumption has been rejected in Florida law. In Dade County, Florida v. Palmer & Baker Engineers, Inc., 318 F.2d 18, 24 (5th Cir. 1963), the federal appeals court then having jurisdiction over Florida stated that “in the event that there are contingencies that must be satisfied before the innocent party is entitled to any profit under the contract, then the fact finder must take into account the likelihood that these contingencies will actually be met in determining the value of the contract or the profits which he would have made if permitted to complete the undertaking.”
Wherefore, comes Plaintiff and moves this Court for reconsideration of its Order granting Defendant’s Motion to Dismiss.
CERTIFICATE OF SERVICE
I hereby certify that I mailed a copy hereof to Joshua A. Berkowitz, Esq., Law Offices of Daniel E. Jonas, P.A., 300-71st Street, Suite 405, Miami Beach, FL 33141 on this August 5, 2008.
Erwin Rosenberg, Esq.
The Florida Bar # 163279
P.O. Box 416433
Miami Beach, FL 33141
My brief to the 4th DCA contained the following argument and conclusion:
A. Judge Tuter’s Disagreement With Predecessor Judge Moe’s Approach
Judge Tuter, the trial Judge, denied Appellant’s motion for contractual attorney’s fees, deciding that neither party was a prevailing party. This was within Judge Tuter’s discretion. Judge Tuter recognized that his predecessor trial judge, Judge Leroy Moe, had improperly finally dismissed the action on December 11, 2008 without ruling on Appellee’s August 5, 2008 Motion for Rehearing of the prior order of dismissal with leave to amend. Although Judge Moe had made his final dismissal order without prejudice, which left Appellee with the option to re-file its Complaint in the exact same way as it was initially filed (without alleging that Appellant had collected insurance proceeds), Judge Moe should not have issued a final dismissal without actually ruling on Appellee’s pending August 5, 2008 Motion for Rehearing.
B. The Florida Supreme Court Allows a Trial Judge to Decide that there is No Prevailing Party
The Florida Supreme Court has clarified that a trial court may decide that neither party is a prevailing party: “Certainly the possibility that neither party is a ‘prevailing party’ is consistent with an application of the ‘significant issues’ test of Moritz and Prosperi.12.” Trytek v. Gale Industries, Inc., 997 So. 2d 365 (Fla. 2008) (footnote 12 states as follows: “Appellate courts have upheld decisions where the trial court found no prevailing party under the ‘significant issues’ test in breach of contract litigation. See Brevard County Fair Ass’n v. Cocoa Expo, Inc., 832 So. 2d 147, 151 (Fla. 5th 2002) (where both parties prevail on significant issues, the trial judge has the discretion to determine neither party prevailed); Hutchinson v. Hutchinson, 687 So. 2d 912, 913 (Fla. 4th DCA 1997) (recognizing that there can be ‘compelling circumstances’ in which a trial court can determine that neither party prevailed in a contract case); KCIN, Inc. v. Canpro Investments, Ltd., 675 So. 2d 222, 223 (Fla. 2d DCA 1996) (“A rule which requires an award of prevailing party attorney’s fees in all cases may result in an unjust reward to a party whose conduct caused the failure of the contract…. [A]n attorney’s fee award is not required each time there is litigation involving a contract providing for prevailing party fees.”).”).
C. Judge Tuter’s Decision is Justified for Different Reasons
Judge Tuter’s decision shows that Judge Tuter believed that given Judge Moe’s mistake in not ruling on Appellee’s August 5, 2008 Motion for Rehearing, particularly since Judge Tuter may believe that the Motion for Rehearing should have been granted, in which case Appellee would have been able to proceed with the instant action against Appellant instead of having to spend the money to file another action, creates a situation where granting prevailing party attorney’s fees would be an unjust reward to a party whose conduct caused the failure of the public adjuster contract. Alternatively, Judge Tuter’s decision may reflect that Judge Moe’s mistake constitutes compelling circumstances in which a trial court can determine that neither party prevailed in a contract case. In addition, Judge Tuter’s decision may reflect that Judge Tuter sees Appellee’s August 5, 2008 Motion for Rehearing as meritorious and thus Appellee’s Complaint should have survived Appellant’s motion to dismiss the Complaint, and the same would be true if Appellee were to re-file the exact same Complaint in a new action, this being a sufficient basis to find that Appellee has also prevailed on a significant issue). Given that Judge Tuter’s decision is a permissible decision and that abuse of discretion is the appropriate standard of review, Judge Tuter’s decision should be affirmed.
Judge Tuter’s decision that that neither party was a prevailing party was within Judge Tuter’s discretion and reflects his view that Appellee’s August 5, 2008 Motion for Rehearing had value and should have been ruled on by his predecessor judge, and that it would be unfair to award attorney’s fees to Appellant. As such, Judge Tuter did not abuse his discretion, and his decision should be affirmed.
Erwin Rosenberg, Esq.