IN THE SUPREME COURT STATE OF FLORIDA

Transcription

1 IN THE SUPREME COURT STATE OF FLORIDA HOMER THOMAS, Plaintiff, Petitioner, CASE NO. SC LOWER CASE NO. - 4D vs. SUBWAY RESTAURANTS, INC., Defendant, Respondent, / APPLICATION FOR DISCRETIONARY REVIEW OF THE DISTRICT COURT OF APPEAL, FOURTH DISTRICT OF FLORIDA AMENDED BRIEF OF PETITIONER ON JURISDICTION KENNETH D. COOPER Attorney for Petitioner 400 S.E. 8th Street Fort Lauderdale, FL Telephone: (954) Florida Bar Number Petitioner HOMER THOMAS

2 TABLE OF CONTENTS TABLE OF CITATIONS iv Page PARTIES DESIGNATIONS vi STATEMENT OF THE CASE AND OF THE FACTS 1 SUMMARY OF THE ARGUMENT 3 ARGUMENT 4 I. THE PRESENT DECISION IS IN EXPRESS AND DIRECT CONFLICT WITH THOSE CASES HOLDING THAT ENTITLEMENT TO ATTORNEY S FEES IS GOVERNED BY THE GROSS ABUSE OF DISCRETION STANDARD. 4 II. THE PRESENT DECISION IS IN EXPRESS AND DIRECT CONFLICT WITH THOSE CASES HOLDING THAT CONTRACT ATTORNEY S FEES MAY BE AWARDED FOR ANOTHER CLAIM WHERE THE TWO CLAIMS ARE INEXTRICABLY INTERTWINED. 6 III. THE PRESENT DECISION IS IN EXPRESS AND DIRECT CONFLICT WITH THOSE CASES HOLDING THAT THE FORM OF THE ACTION DOES NOT CONTROL ENTITLEMENT TO ATTORNEY S FEES. 8 CONCLUSION 10 -ii-

3 CERTIFICATE OF TYPE STYLE 11 CERTIFICATE OF SERVICE 11 APPENDIX APPENDIX A COPY OF DECISION OF DISTRICT COURT OF APPEAL, FOURTH DISTRICT -iii-

4 TABLE OF CITATIONS STATE CASES Alexander v. Adams, 501 So.2d 15 (Fla. 4th DCA 1986) Bethea v. Bethea, 596 So.2d 1279 (Fla. 3d DCA 1992)...-5-, -9- Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980)...-5-, -9- Careers USA, Inc. v. Sanctuary of Boca, Inc., 705 So.2d 1362 (Fla. 1998) Caufield v. Cantele, 837 So.2d 371 (Fla.2002)...-7-, -9- Discovery Experimental and Development, Inc. v. Department of Health, 824 So.2d 195 (Fla. 2d 2002)...-4-, -9- Ford Motor Co. v. Kikis, 401 So.2d 1341, 1342 (Fla. 1981) Franklin v. Public Health Trust of Dade County 759 So.2d 703 (Fla. 3d DCA 2000)-5-, -9- Gator Shoe Corp. v. Taudte, 384 So.2d 1344 (Fla. 3d DCA 1980)...-8-, -9- Jones & Granger v. Johnson, 788 So.2d 381 (Fla. 1st DCA 2001)...-5-, -6-, -9- Moritz v. Hoyt Enterprises, Inc., 604 So.2d 807 (Fla. 1992) Musselwhite v. Charboneau, 840 So.2d 1158 (Fla. 5th DCA 2003)...-4-, -5-, -9- Old Republic Sur. Co. v. Reischmann, 713 So.2d 434 (Fla. 2d DCA 1998)..-6-, -9- Subway Restaurants, Inc. v. Thomas, 860 So.2d 462 (Fla. 4th DCA 2003)..-6-, -7- STATE STATUTES -iv-

5 Florida Statutes (6) Florida Statutes Florida Statutes , -3- -v-

6 PARTIES DESIGNATIONS In this brief, HOMER THOMAS will refer to the parties by their names and by the positions they occupy before this Court or at trial. HOMER THOMAS uses the following symbol: A for Appendix to Petitioner s Brief. -vi-

7 STATEMENT OF THE CASE AND OF THE FACTS Plaintiff, Petitioner, HOMER THOMAS, petitions for review of the October 29, 2003, reversal by the Fourth District Court of Appeal of a $360, fee award. Petition for rehearing was denied on December 22, The Respondent appealed a Final Judgment for Attorney s Fees in favor of Homer Thomas who prevailed on two counterclaims: wrongful eviction and breach of contract. Respondent, Subway Restaurants, Inc., lost on its original action for eviction. Therefore, Thomas was the prevailing party by defeating the eviction action and by prevailing upon the wrongful eviction and breach of contract claims. Thomas was awarded $167, in damages. The trial court awarded attorney s fees in the amount of $360, to Thomas for the six years of litigation. Without a trial transcript, the Fourth District reversed. The facts of the case are very simple. 1 Subway sent collection letters stating 1 Subway plead: 1. This is an action to evict a tenant... pursuant to Chapter 83 and , Fla. Stat.... (1993) arising from the non-payment of rent Attorney s Fees. *** SUBLESSOR is entitled to recover said fees... pursuant to the terms of the Sublease. WHEREFORE, SUBLESSOR demands a judgment for possession...costs, attorneys fees, and such further relief as this Court may deem appropriate. (Emphasis added). Therefore, Subway wanted something more than just possession. Before the default -1-

8 the rent was not paid, and Subway attempted to collect it. Thomas sent Subway copies of the cashed checks stating the rent was paid. Subway persisted and hired an attorney to attempt to collect the rent, and Thomas sent the attorney copies of the cashed checks stating the rent is paid. In spite of the copies of the cashed checks, final judgment was vacated, Subway submitted a final judgment which stated: 2. The Court reserves jurisdiction for purposes of awarding damages, attorney s fees, interest and costs. (Emphasis added). The only damages alleged was past due rent. The contract through which Subway claimed attorney s fees for five or more years states: Lessee agrees to pay the cost of collection and reasonable attorney s fee on any part of said rental that may be collected by suit or by attorney, after the same is past due. The franchise agreement states: i. If the Franchisee withholds any monies due under this Agreement..., the Company shall be reimbursed by the Franchise for all reasonable costs that it incurs in pursuing the collection of the withheld monies. These costs shall include but not be limited to arbitration fees, court costs, attorneys fees,... In addition, the franchise agreement states: In the event Sublessee wishes to engage the services of an attorney to settle any disputes arising out of the Master Lease agreement, all fees and costs shall be borne by the Sublessee, it being understood that the SUBLESSOR is under no obligation to bring or defend any action brought by or against the Sublessee, the SUBLESSOR or the landlord. Subway filed suit for eviction under Florida Statutes which states: The plaintiff in the judgment for possession and money damages may also be awarded attorney s fee and costs. Florida Statutes (6) gives discretion to the trial judge to award fees. Subway never dismissed the eviction action, and a trial was held on the three issues: the original eviction action, the counterclaims for wrongful eviction and breach of contract. Thomas proved the rent was paid by introducing at trial copies of the cashed checks. -2-

9 Subway filed an eviction action stating non-payment of rent... and asked for such other relief as the court deems appropriate. 2 Subway submitted a false affidavit to the judge stating the rent was not paid, when in fact it was paid. After the final judgment was entered, through its attorney, Subway continued to negotiate the amount of rent to be collected by its attorney and Subway demanded attorney s fees for the collection of the rent. Negotiations broke down. Subway obtained an ex-parte writ of possession and had the sheriff physically remove Thomas from the property. Subway had the judge reserve jurisdiction on the amount of damages and attorney s fees. Then after five years of maintaining entitlement to attorney s fees for itself, when Subway lost the case, Subway reversed its position and stated it was not attempting to collect the rent! The Fourth District s denial of attorney s fees in this case results in several conflicts with other districts and with this Court. SUMMARY OF THE ARGUMENT Jurisdiction in this case rests on the conflict between the cases that hold the trial judge has discretion under Florida Statutes to award attorney s fees. Reciprocal fees under Florida Statutes rest on the discretion of the trial judge. 2 A money judgment for damages is a form of relief available where the demand is for "such other relief as the Court deems proper." Alexander v. Adams, 501 So.2d 15, 15 (Fla. 4th DCA 1986). -3-

10 The Fourth District has created a conflict as to who determines entitlement to attorney s fees through for the filing of a false affidavit which was utilized to have Thomas physically removed from the premises the Fourth District or the trial judge. The law holds absent an abuse of discretion, it is the trial judge that determines entitlement. The Fourth District without a trial transcript determined facts and substituted its factual determinations and judgment for that of the trial court who heard the case for five years. Without a trial transcript, the Fourth District found it was not Subway s intent to collect the rent. The trial court found it was Subway s intent to collect the rent. The Fourth District did not find an abuse of discretion. ARGUMENT I. THE PRESENT DECISION IS IN EXPRESS AND DIRECT CONFLICT WITH THOSE CASES HOLDING THAT ENTITLEMENT TO ATTORNEY S FEES IS GOVERNED BY THE GROSS ABUSE OF DISCRETION STANDARD. The present decision expressly 3 and directly conflicts with Discovery Experimental and Development, Inc. v. Department of Health, 824 So.2d 195 (Fla. 2d 2002), Musselwhite v. Charboneau, 840 So.2d 1158 (Fla. 5th DCA 2003), and all other cases that hold that entitlement to attorney s fees is governed by the gross 3 A discussion of the legal principles which the appellate court applied in deciding is sufficient for conflict review. Ford Motor Co. v. Kikis, 401 So.2d 1341, 1342 (Fla. 1981). -4-

11 abuse of discretion standard. The process of determining entitlement to attorney s fees is most imbued with fairness when the trial judge determines the facts from the record and when the trial judge determines the significance of the issues before him or her. Id. at 1160 (citing see Moritz v. Hoyt Enterprises, Inc., 604 So.2d 807 (Fla. 1992) Entitlement in Musselwhite depended upon determining the prevailing party by weighing what the party had and had not prevailed on). The case expressly conflicts with Musselwhite which held entitlement to fee is governed by the gross abuse of discretion standard not the De Novo standard. By putting entitlement in the hands of the appellate court instead of the trial court, the present decision plunders the fairest test from Thomas and all other fee-seeking litigants. The present decision does not address the reasonableness of the trial court s finding of entitlement, and it conflicts with Bethea v. Bethea, 596 So.2d 1279, 1280 (Fla. 3d DCA 1992), and with Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), on which Bethea and others in this line rely. The present decision does not set forth or discuss the reasons given by the trial court for finding HOMER THOMAS entitlement to attorney s fees, which conflicts with Franklin v. Public Health Trust of Dade County 759 So.2d 703, 705 (Fla. 3d DCA 2000)(Requires the application of reasonableness test in determining whether the trial court abused its discretion). The present decision does not determine that a reasonable person could not differ to come -5-

12 up with the decision that the trial court did, and in that respect the decision conflicts with Jones & Granger v. Johnson, 788 So.2d 381, 385 (Fla. 1st DCA 2001), and Old Republic Sur. Co. v. Reischmann, 713 So.2d 434, 436 (Fla. 2d DCA 1998), which also rely on Canakaris. Mere disagreement by the appellate court with the trial court s reasoning is insufficient to support reversal. Jones & Granger, 788 So.2d at 385. The present decision goes beyond mere disagreement to ignoring the trial court s findings and deciding de novo. II. THE PRESENT DECISION IS IN EXPRESS AND DIRECT CONFLICT WITH THOSE CASES HOLDING THAT CONTRACT ATTORNEY S FEES MAY BE AWARDED FOR ANOTHER CLAIM WHERE THE TWO CLAIMS ARE INEXTRICABLY INTERTWINED. In the present decision, in regard to an attorney s fees provision that provides that [l]essee agrees to pay the cost of collection and reasonable attorney s fees on any part of said rental that may be collected by suit or attorney, after the same is past due, Subway Restaurants, Inc. v. Thomas, 860 So.2d 462, 463 (Fla. 4th DCA 2003), the Fourth District expressly agreed with Subway s argument, which the Fourth District characterized as follows: [T]he trial court erred in awarding attorney's fees to Thomas under section (6) because the provision for attorney's fees to the prevailing party on an action under a contract is only mutual as to the specific terms of the attorney's fees provision in the contract. In particular, the entitlement to attorney's fees applied only to claims for recovery of unpaid rents, which was not the basis upon which Thomas -6-

13 prevailed. Id. Then the Fourth District held as follows: The attorney's fee provision in the lease limited Subway's entitlement to attorney's fees to actions for the collection of overdue unpaid rents. Subway brought an action to evict Thomas from the premises and never sought to collect rents that were overdue. Thomas's action against Subway was for wrongful eviction and for breach of contract for evicting him. These actions never triggered Subway's limited entitlement to attorney's fees. Therefore, Thomas was not entitled to his fees under section (6). Id. at 464. The present decision conflicts with Caufield v. Cantele, 837 So.2d 371, 379 (Fla.2002), which held attorney s fees may be awarded where another cause of action is inextricably intertwined with a cause of action on contract that contains an attorney s fees clause. In the present case, there is no way to separate the collection action from the eviction or the action for possession when the latter is based upon the former. However, that is not the end of the intertwining because Thomas action for Breach of Contract stated the rent was paid and Subway was trying to collect it again. Therefore, the Fourth District is not following the Supreme Court s most recent case of Caufield where the Court held that where a claim that provides a ground for attorney s fees is inextricably intertwined with a claim that does not provide for -7-

14 attorney s fees, the court may award attorney s fees for both claims. III. THE PRESENT DECISION IS IN EXPRESS AND DIRECT CONFLICT WITH THOSE CASES HOLDING THAT THE FORM OF THE ACTION DOES NOT CONTROL ENTITLEMENT TO ATTORNEY S FEES. The Fourth District s present decision is in conflict with Gator Shoe Corp. v. Taudte, 384 So.2d 1344 (Fla. 3d DCA 1980), which supports entitlement to attorney s fees for the landlord through an almost identical clause to Subway s clause: 11. Tenant agrees to pay all cost and expenses of collection and reasonable Attorney s fees on any part of said rental that may be collected by an Attorney, suit, distress, or foreclosure. (Emphasis added). The Third District granted entitlement and remanded for a determination of the amount of the fees relevant to the collection of the rent. Therefore, there is a direct conflict with Gator where the clause entitled the landlord to attorney s fees but in Thomas the clause did not entitle the tenant to attorney s fees. In this case, Subway sent Homer Thomas demand letters for the collection of the rent. Thomas counterclaim for breach of contract contested the rent schedules. He proved the attempts to collect the rent were in error by introducing at trial copies -8-

15 of the cashed checks. The breach of contract action by Thomas is the action fighting the attempt by Subway to collect the rent. Therefore, Gator Shoe applies. This conflict is consistent with the conflict of the present case with Careers USA, Inc. v. Sanctuary of Boca, Inc., 705 So.2d 1362 (Fla. 1998), wherein this Court held the form of the action is not important. Id. at 1363 (Appellate court s finding approved by this Court). This Court went on to say, In the final analysis, we do not believe that the issue of attorney s fees should be decided by the form of the action chosen by either party. Id. at In this case, Thomas was required to defend the action that alleged the rent was not paid. Either through the breach of the Franchise agreement or through the contract, the clause would apply since the issue was the amount of rent due. -9-

16 CONCLUSION The decision to be reviewed is in direct and express conflict with the decision of Discovery Experimental and Development, Inc. v. Department of Health, 824 So.2d 195 (Fla. 2d 2002), Musselwhite v. Charboneau, 840 So.2d 1158 (Fla. 5th DCA 2003), Bethea v. Bethea, 596 So.2d 1279, 1280 (Fla. 3d DCA 1992), and with Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), Franklin v. Public Health Trust of Dade County 759 So.2d 703, 705 (Fla. 3d DCA 2000), Jones & Granger v. Johnson, 788 So.2d 381, 385 (Fla. 1st DCA 2001), Old Republic Sur. Co. v. Reischmann, 713 So.2d 434, 436 (Fla. 2d DCA 1998), Caufield v. Cantele, 837 So.2d 371, 379 (Fla.2002), Gator Shoe Corp. v. Taudte, 384 So.2d 1344 (Fla. 3d DCA 1980), and Careers USA, Inc. v. Sanctuary of Boca, Inc., 705 So.2d 1362 (Fla. 1998). Petitioner requests this Court to extend its discretionary jurisdiction to this cause, and to enter its order quashing the decision and order thereby sought to be reviewed, approving the conflicting decisions of this Court and the District Courts of Appeal of Florida as listed above as the correct decisions, and granting such other and further relief as shall seem right and proper to the Court, including but not limited to, approving the trial court s award of attorney s fees and holding that the entitlement to attorney s fees is governed by the gross abuse of discretion and not the De Novo standard. -10-

17 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by U.S. Mail to ADORNO AND YOST, ATTN: RACHEL M. COE, 888 SE 3 RD AVE #500, FT. LAUDERDALE, FL , on February 10, KENNETH D. COOPER Attorney for Plaintiff/Petitioner FLORIDA BAR NUMBER S.E. 8th Street Fort Lauderdale, FL Telephone: (954) CERTIFICATE OF TYPE STYLE I hereby certify the foregoing is in 14 point Times New Roman. KENNETH D. COOPER Attorney for Plaintiff/Petitioner FLORIDA BAR NUMBER S.E. 8th Street Fort Lauderdale, FL Telephone: (954)

18 APPENDIX

19 APPENDIX A - FOURTH DISTRICT COURT OF APPEAL DECISION

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