CITY OF MIAMI OFFICE OF THE CITY ATTORNEY MEMORANDUM

Transcription

1 CITY OF MIAMI OFFICE OF THE CITY ATTORNEY MEMORANDUM TO: FROM: Honorable Mayor and Members of the City Commission Victoria Méndez, City Attorney DATE: October 17, 2016 RE: Office of the City Attorney - General File for FY Monthly Litigation Report Matter ID No.: In order to keep you informed of the status of pending litigation matters currently handled by the Office of the City Attorney, provided below is a summary of significant results obtained in September 2016, new cases filed against or by the City of Miami during the month of September 2016, and other significant updates. My attorneys and I remain available to update you or discuss any of these matters in further detail at your convenience. SIGNIFICANT RESULTS 1. CODE ENFORCEMENT MATTERS: In the month of September 2016, this Office handled 130 Code Enforcement and Nuisance Abatement matters before the Code Enforcement Board and special masters. 2. DISMISSAL OF FEDERAL WHISTLEBLOWER CLAIM: Victor Igwe v. the City of Miami, United States District Court, Southern District of Florida, Case No CIV (KRJ/KLM): In this case, the Plaintiff, a former City of Miami Auditor General, filed a complaint against the City alleging that the City terminated him because he participated in the SEC investigation into the City s finances. He alleged that he was a Whistleblower under the Dodd-Frank Act and entitled to reinstatement and damages. He further alleged that because he gave sworn testimony to the SEC, the City of Miami retaliated against him in violation of his First Amendment Right to freedom of speech. On September 29, 2016, the Court granted the City s Motion to Dismiss for Failure to State a Claim finding that all the allegations, in light most favorable to the Plaintiff, failed to state a cause of action. Specifically, the Court found that the Plaintiff failed to file his claim within the statute of limitations, improperly split his cause of action and that his claims were barred by res judicata. This case was dismissed with prejudice. Mr. Igwe also brought a separate lawsuit in state court concerning the same allegations which is currently pending. Page 1 of 9

2 3. DENIAL OF POST-TRIAL MOTIONS FALSE IMPRISONMENT AND CIVIL RIGHTS MATTER: Taiwan Smart v. City of Miami, United States District Court, Southern District of Florida, Case No.: 13-Civ (HJH/KLM/FLA): The plaintiff filed an action for False arrest and false imprisonment under 42 U.S.C Specifically, he claimed that on or about November 18, 2009, he was arrested for murder and filmed by a First 48 television crew during questioning. Following a jury verdict in favor of the Plaintiff, the City filed a motion for a new trial and a renewed motion for directed verdict. Those motions were heard during an hourlong hearing before Judge Marcia G. Cooke on September 21, Judge Cooke denied the motions. The City intends to appeal. 4. DISMISSAL - ADMINISTRATIVE RULE CHALLENGE: City of Miami, et al. v. Florida Department of Environmental Protection, Florida Division of Administrative Hearings (DOAH), Consolidated Case Nos.: , , , (KLM/FLA/JTM): The City has filed a petition challenging the validity of certain administrative rule revisions proposed by the Florida Department of Environmental Protection. The proposed rule revisions at issue amend the human health-based water quality criteria for our state. It is the City s position that the proposed rule suffers from both procedural and substantive flaws. The Department filed a motion to dismiss the City s petition, as well as the petitions of the remaining parties, in part on the basis that the petitions were untimely. The issue of the timeliness of the various petitions in this matter was heard before Administrative Law Judge Bram E. Canter in Tallahassee, on September 7, Following the hearing, Judge Canter dismissed the City s petition, along with the petitions of all of the other parties, as untimely under the pertinent statutory scheme. The City has since filed an appeal, challenging the judge s interpretation of the statutory scheme. 5. SETTLEMENT OF NEGLIGENCE ACTION (TRIP AND FALL): Fatima Almanza v. City of Miami, Miami-Dade County Circuit Court, Case No.: CA 01 (CHG): The Plaintiff alleged she fell through a hole on the dock at Watson Island while attempting to board a boat on October 21, The dock was under repair at the time of incident alleged by the Plaintiff. The Plaintiff alleged permanent bodily injuries resulting from a fracture to her foot. Plaintiff filed her action against the City of Miami, Kearns Construction and Miami Parking Authority. The action was settled at mediation. 6. WORKERS COMPENSATION CLAIM: Derek Rodriguez v. City of Miami, OJCC No SMS (WAJ): The claimant is a firefighter Lieutenant hired by the City of Miami on or about He alleged an injury on-the-job which took place on February 18, 2016 when he was getting off the truck to pick up a patient. The accident has been accepted as compensable under F.S (4) "pay and investigate." The claimant has been receiving workers' compensation benefits; however, he obtained the services of an attorney and filed a petition for benefits on March 24, 2016 seeking both medical and indemnity benefits together with penalties, interest, attorneys' fees and costs. This office defended the petition for benefits which was ultimately voluntarily dismissed by the claimant. As such, the final hearing which was Page 2 of 9

3 scheduled to take place on October 5, 2016 has been cancelled and the E/SA is not responsible for claimant s attorney s fees or costs, if any. 7. WORKERS COMPENSATION CLAIM: Jose M. Gonzalez v. City of Miami, OJCC No ERA (WAJ): The claimant is a police Lieutenant for the City of Miami. The claimant was hired by the City of Miami on 3/23/87. He claimed he had an occupational disease condition covered by the presumption in F.S (1) on or about November 6, The City has investigated the claim and it appears that no benefits have been paid. A Petition for Benefits was filed seeking medical benefits, attorney's fees and costs on March 31, This office defended the E/SA and the PFB was ultimately dismissed with the E/SA paying no benefits, attorney s fees or costs as the claim was not compensable as the claimant did not establish the threshold elements for compensability. The final hearing set for October 13, 2016 was thus cancelled. 8. WORKERS COMPENSATION CLAIM: William Bradshaw v. City of Miami, Office of the Judge of Compensation Claims, OJCC No.: CMH (WAJ): The claimant is a City of Miami heavy equipment specialist working with the Department of Solid Waste since 1982 with multiple workers' compensation accidents. The claimant filed a petition for benefits based on a May 9, 2005 date of accident in which the claimant was injured on-the-job when he allegedly pulled a heavy can out of a truck and suffered orthopedic injuries. This description, which is found in his petition for benefits of December 17, 2013, materially varies from the original description of accident for that day, which involved hitting a pothole and bouncing within the truck. The petition for benefits sought medical treatment which was never denied for the latter described accident. On August 3, 2016 the claimant filed another petition for benefits seeking additional medical care, and while the Servicing Agent responded timely, the subject of the dispute was not received by the claimant during the 30 day attorney fee shifting grace period, as such, the E/SA and the claimant stipulated to attorney fee entitlement of $1,000.00, in addition to alternate agreed upon medical care. The issues are now resolved and the final hearing of October 25, 2016 is cancelled. 9. SETTLEMENT OF PROPERTY DAMAGE CLAIM: City of Miami v. Jashine Tyquan Williams and Ryan Renard Miller, Miami-Dade County Circuit Court, Case No.: SP 05 (ANF): This was a property damage case involving a City of Miami police vehicle. The accident occurred on September 21, The damage to the vehicle totaled $1, Before litigation, Williams paid $ toward the damages. However, he stopped making payments. After the matter was forwarded to the City Attorney s Office, the City filed suit against both Miller and Williams. We were unable to locate Miller but did locate Williams. On September 8, 2016, Williams appeared to the court-ordered pretrial conference. There, he settled this claim for a final amount of $ Page 3 of 9

4 10. SUCCESSFUL RESOLUTION OF EXPERT WITNESS FEE DISPUTE: Maria Wollmann v. City of Miami, Miami-Dade County Circuit Court, Case No.: CA 01 (ANF): On September 29, 2016, Judge Jorge Cueto heard the City s Motion to Determine the Reasonableness of Expert Witness Fee. The City brought this motion because plaintiff s counsel refused to pay the City s expert his fee for deposition citing the case of Engel v. Rigot, 434 So. 2d 954 (Fla. 3d DCA 1983), and his 34-year custom of having never paid an expert witness his predetermined fee. Judge Cueto agreed with City s argument that Engel v. Rigot had no application to the case at and bar, that there was no basis for counsel s custom, and ordered the plaintiff to pay the expert the exact fee that he demanded. 11. DENIAL OF WRIT OF MANDAMUS IN HISTORIC PRESERVATION DISPUTE: Babylon v. City of Miami, Miami-Dade County Circuit Court, Case No.: (JAG): The Plaintiff sued the City of Miami seeking, among other things, a writ of mandamus directing the City to issue a permit to demolish a structure that has been designated as historic. The Plaintiff claimed that an order of the unsafe structures panel required demolition. The trial court denied the writ of mandamus on this claim and entered judgment for the City. The Plaintiff has since challenged this decision in the Third District Court of Appeal. COLLECTIONS IN SEPTEMBER $184, IN OUTSTANDING LIENS, FEES, & ASSESSMENTS COLLECTED: The City Attorney s Office was tasked with the collection of unsafe structure liens and lot clearing liens in Since 2012, this Office s collection efforts have expanded to include the collection of all liens, fees, and assessments imposed on all properties, including properties that are the subjects of foreclosure actions, tax deed sales, bankruptcy proceedings, or various other actions or proceedings before judicial or quasi-judicial bodies. The City Attorney s Office sent letters to the owners of record and their registered agents, if applicable, and threatened to pursue any and all legal remedies available to the City of Miami if the liens, fees, or assessments were not paid. During the month of September 2016, the owners of the following properties paid outstanding liens, fees, or assessments in the amounts indicated which totaled $184,460.87: 2990 NW Flagler Terrace $27, Violation(s): Mortgage 7750 NW Miami Place $50.00 Violation(s): Unsafe Structure and Code Enforcement Liens 3191 NW 19 Street $ SW 2 Avenue $ SW 27 Lane $1, NW 1 Court $1, Page 4 of 9

5 525 Bay Point Road $ NW 60 Street $ SW 44 Court $1, SW 12 Street $ NW 68 Terrace $1, Violation(s): Tree Trust Fund Ticket and Trash Citation Lien 503 SW 18 Avenue $ SW 23 Street $ SW 35 Court $5, N Bayshore Drive $ SW 22 Avenue $ NW 1 Street $8, Oak Avenue $1, Tamiami Canal Road $16, NE 24 Street $8, Violation(s): BID Assessment Fee 53 NE 24 Street $4, Violation(s): BID Assessment Fee 3033 NW 8 Avenue $8, NW 9 Street $60, Violation(s): Mortgage 1198 NW 47 Street $31, Violation(s): Mortgage 1336 NW 71 Street $ NW 59 Street $2, NW 40 Street $1, Total Collected to-date for Fiscal Year $1,481, Page 5 of 9

6 October 2015 $56, November 2015 $106, December 2015 $106, January 2016 $110, February 2016 $129, March 2016 $146, April 2016 $77, May 2016 $159, June 2016 $189, July 2016 $96, August 2016 $117, September 2016 $184, Total Collected by the City Attorney s Office Since 2012 $3,099, NEW CASES OPENED IN SEPTEMBER 1 1. APPEAL (ADMINISTRATIVE RULE CHALLENGE): City of Miami, et al. v. Florida Department of Environmental Protection, Third District Court of Appeal, Case No. 3D (KLM): The City has filed an appeal from the administrative law judge s (ALJ) dismissal of its petition challenging the validity of certain administrative rule revisions proposed by the Florida Department of Environmental Protection. The proposed rule at issue amends the human health-based water quality criteria for our state. It is the City's position that the proposed rule suffers from both procedural and substantive flaws. The petition was dismissed on the basis that it was untimely, based on the ALJ's construction of certain statutory provisions. The City plans to challenge the ALJ's statutory construction. 2. APPEAL (TAXPAYER CLASS ACTION): 346 NW 29 th Street, et al. v. City of Miami, Third District Court of Appeal, Case No.: 3D (KLM/JAR): This petition for writ of prohibition arises from the trial court s grant of summary judgment on liability in favor of the class plaintiffs in a taxpayer class action. The class action was brought relating to the ad valorem tax exemption for businesses in the enterprise zone. The court found as a matter of law that the City failed to consider the applications as required by our ordinance. Damages are yet to be determined and will have to be established on an individual basis by members of the class. The City has filed a petition for writ of prohibition to the Third District Court of Appeal, raising issues as to the trial court s jurisdiction in this matter. 3. NEGLIGENCE ACTION (MOTOR VEHICLE ACCIDENT): Martinez, Kimberly v. City of Miami & Cedric Philippe, Miami Dade County Circuit Court, Case No CA-01 (JTM): The Plaintiff has filed suit against the City of Miami and Cedric Philippe claiming that on March 19, 2015, near NW 54th St., Cedric Philippe negligently caused a collision with the 1 During the month of September 2016, nine (9) foreclosure matters were opened by this Office. A summary of those matters is not included in this report. If you wish to be briefed on any or all of these additional matters, a meeting will be coordinated at your convenience. Page 6 of 9

7 Plaintiff's vehicle. Cedric Philippe was driving a vehicle owned by the City of Miami at the time. The Plaintiff claims she was injured during the collision. 4. NEGLIGENCE ACTION (TRIP AND FALL): Gonzalez, Esther v. Florida Department of Transportation & City of Miami, Miami Dade County Circuit Court, Case No CA-23 (JTM): The Plaintiff has filed suit against the Florida Department of Transportation and the City of Miami claiming that on November 1, 2011, at 43rd Ave. and Flagler St., she "tripped and fell in a large hole in the street" and was injured. The Plaintiff alleges both Defendants negligently maintained the roadway. 5. NEGLIGENCE ACTION (TRIP AND FALL): Rosenblum, Ronald v. City of Miami, Miami Dade County Circuit Court, Case No CA-02 (JTM): The Plaintiff has filed suit against the City of Miami claiming that he tripped and fell on a sidewalk located at NE Miami Court and NE 20th Street on September 16, The Plaintiff alleges said sidewalk was negligently maintained by the City, who failed to repair it. 6. NEGLIGENCE ACTION (TRIP AND FALL): Jesus Murgado v. City of Miami, Miami-Dade County Circuit Court, Case No.: CA 15 (CHG): Plaintiff alleges that on or about May 8, 2015, while using a boat ramp for loading a vessel at the Dinner Key Marina in Coconut Grove, he fell on a missing and/or broken piece of wood on the boat ramp and sustained bodily injuries. Plaintiff alleges that City failed to maintain, operate, and/or repair the condition and that it also failed to warn Plaintiff of same. 7. WORKERS COMPENSATION CLAIM: Carlos R. Cuenca v. City of Miami, OJCC No.: EDS (WAJ): The claimant is a former City of Miami firefighter who was injured on the job on September 13, 2013 while lifting a patient. He has received workers' compensation benefits since the accident. On September 9, 2016, he filed a Petition for Benefits seeking additional medical benefits, attorney's fees and costs. This office handled the litigation and the issue raised was resolved, and the City of Miami is not liable for attorney's fees or costs. 8. WORKERS COMPENSATION CLAIM: Joseph Alexander v. City of Miami, OJCC Nos.: CMH, CMH, CMH (WAJ): The claimant is Heavy Equipment Mechanic Helper who was hired by the City of Miami on or about June 19, He has several workers compensation claims. He has filed three workers compensation petition for benefits on September 23, 2016 for three of his many claims [one each] the October 27, 2014, May 25, 2015 and the January 28, 2016 date of accident. The first claim occurred when he slipped while getting off a forklift and injured the right lower extremity, the second claim occurred when he slipped while getting a door to unlock and claims he was injured his low back and hip, and the most recent claim occurred when he injured while running away from bees he encountered while changing a tire. Each petition for benefits seeks indemnity benefits from each date of accident was well as a determination of compensability, payment of penalties and interest, authorization of medical care as well as payment of attorney s fees and costs. The compensability of the accidents has not been denied and benefits have been paid under each accident/claim. This office shall defend the E/SA. Page 7 of 9

8 CASES SET FOR TRIAL, HEARING, OR MEDIATION IN OCTOBER 1. APPELLATE ORAL ARGUMENT WRONGFUL DEATH CLAIM: Prio v. City of Miami, Third District Court of Appeal, Case No. 3D (FLA): Plaintiff filed a wrongful death lawsuit against the City alleging that Fire-Rescue failed to transport the decedent after she complained of severe head pain. She passed away several days later. At trial, the jury found that the City was not liable. On appeal, Plaintiffs argue that the trial court erred by not allowing them to introduce an from the decedent to her children describing her head pain, by instructing the jury on the good Samaritan defense, and allowing the City s expert witness to testify. Oral argument occurred on October 11, 1016 before the Third District Court of Appeal. 2. TRIAL - NEGLIGENCE ACTION (MOTOR VEHICLE ACCIDENT): Ana Huerta v. City of Miami, Miami-Dade County Circuit Court, Case No.: CA 30 (RSO): The Plaintiff alleges that on October 25, 2013, she was involved in a motor vehicle accident with a City of Miami police vehicle operated by Officer Leonard Linardos, at or near the intersection of Flagler Street and SW 22nd Avenue in Miami. The Plaintiff further alleges she was injured due to the negligence of the City driver. This case is presently set for trial for the three-week period commencing October 24, 2016 before Judge Norma Lindsey. 3. TRIAL - NEGLIGENCE ACTION (MOTOR VEHICLE ACCIDENT): Antonio Gonzalez v. City of Miami, Miami-Dade Circuit Court, Case No.: CA 02 (RSO): This is a motor vehicle negligence action brought against the City of Miami relating to an alleged police chase that occurred on November 27, Plaintiff alleges that Miami Police Department officers pursued suspect Franklin Rodriguez in a high speed chase. Plaintiff further alleges that, while attempting to elude Miami Police, Rodriguez crashed into the vehicle in which Plaintiff was a passenger, causing him injuries. The Plaintiff suffers from muscular dystrophy and was seated in a wheelchair in a parked disability van when the accident occurred. The crash occurred at NW 4th Street and 9th Avenue in Miami. This case is presently set for trial for the three-week period commencing October 31, 2016 before Judge Bronwyn Miller. 4. TRIAL - NEGLIGENCE ACTION (MOTOR VEHICLE ACCIDENT): Shauna Temple vs. City of Miami, Miami-Dade Circuit Court, Case No CA 06 (CHG): Plaintiff alleges that on or about June 13, 2011, she was injured in an automobile accident with a City vehicle operated by Richard Abraham at 177 N.E. 68th Street. Plaintiff has sued the City for negligence in its operation and/or maintenance of the City vehicle. The matter is set for the threeweek trial calendar commencing on October 24, 2016 before Judge Samantha Ruiz-Cohen. 5. ORAL ARGUMENT - SOVEREIGN IMMUNITY APPEAL: City of Miami v. Orlando Jarel Puerto Peralta et al., Third District Court of Appeal, Case No.: 3D (JAG) - Plaintiff alleges that he was a pedestrian trapped between two parked motor vehicles when they were struck by another motor vehicle at or near NW 2nd Street and NW 8th Avenue in Miami. The Plaintiff further alleges that the City of Miami was negligent for creating or allowing a Page 8 of 9

9 parking area in the swale at 200 NW 8th Avenue, and that he was seriously injured (leg amputation) due to the negligence of the City. The trial court denied the City's motion to dismiss based on sovereign immunity, and the City has appealed. Oral Argument is scheduled for October 18, 2016 before the Third District Court of Appeal. 7. ORAL ARGUMENT LAND USE APPEAL: Basil Binns and Wendy Stephan v. City of Miami and Institute of Contemporary Art Miami, Inc., Miami-Dade County Circuit Court, Appellate Division, Case No AP (JAG/DSG) - The Petitioners Challenge a City of Miami Ordinance that changes zoning of certain parcels of property from residential to civic institutional to accommodate a proposed art museum. Oral Argument is scheduled for October 19, 2016 before the Appellate Division of the Circuit Court. Page 9 of 9