IN THE SUPREME COURT OF FLORIDA. Case No.: SC CHARLES MCGRATH and BENJAMIN BATES, Petitioners, vs. CARL DOUGLAS ROBBINS and DEBORAH P.

Transcription

1 IN THE SUPREME COURT OF FLORIDA Case No.: SC CHARLES MCGRATH and BENJAMIN BATES, Petitioners, vs. CARL DOUGLAS ROBBINS and DEBORAH P. ROBBINS, Respondents ON REVIEW FROM THE FIRST DISTRICT COURT OF APPEAL TALLAHASSEE, FLORIDA JURISDICTIONAL BRIEF OF RESPONDENTS CARL DOUGLAS ROBBINS AND DEBORAH P. ROBBINS HOLLAND & KNIGHT LLP Stacy D. Blank P.O. Box 1288 Tampa, FL (813)

2 TABLE OF CONTENTS TABLE OF CONTENTS...i TABLE OF CITATIONS...ii STATEMENT OF THE CASE AND FACTS...1 SUMMARY OF THE ARGUMENT...3 ARGUMENT...4 CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF TYPEFACE COMPLIANCE i

3 TABLE OF CITATIONS Page Alderman v. Murphy, 486 So. 2d 1334 (Fla. 4th DCA 1986)...5 Auto-Owners Ins. Co. v. Hooks, 463 So. 2d 468 (Fla. 1st DCA1985)...4 Bilow v. Benoit, 519 So. 2d 1114 (Fla. 1st DCA 1988)... 8, 9 Brown v. Gardens by the Sea South Condominium Ass'n, 424 So. 2d 181 (Fla. 4th DCA 1983)... 5, 6 Caufield v. Cantele, 837 So. 2d 371 (Fla. 2002)... 5, 6 Cedars Medical Center, Inc. v. Ravelo, 738 So. 2d 362 (Fla. 3d DCA 1999)...9 City of Orlando v. Birmingham, 539 So. 2d 1133 (Fla. 1989)...7 City of Tallahassee v. Blankenship & Lee, 736 So. 2d 29 (Fla. 1st DCA 1999)...4 DeMello v. Buckman, 916 So. 2d 882 (Fla. 4th DCA 2005)...4 Ephrem v. Phillips, 99 So. 2d 257 (Fla. 1st DCA 1957)...5 Hollywood, Inc. v. Clark, 15 So. 2d 175 (Fla. 1943)...7 L.R.X., Inc. v. Horizon Associates Joint Venture, 842 So. 2d 881 (Fla. 4th DCA 2003)...7 ii

4 MGH Enterprises, Inc. v. Nunnally, 536 So. 2d 317 (Fla. 3rd DCA 1989)...5 Newberry Square Development Corp. v. Southern Landmark, Inc., 578 So. 2d 750 (Fla. 1st DCA)... 4, 7 Precision Tune Auto Care, Inc. v. Radcliffe, 804 So. 2d 1287 (Fla. 4th DCA 2002)...4 Precision Tune Auto Care, Inc. v. Radcliffe, 815 So. 2d 708 (Fla. 4th DCA 2002)...8 Raimi v. Furlong, 702 So. 2d 1273 (Fla. 3d DCA 1997)...9 Southland Construction, Inc. v. Greater Orlando Aviation, 860 So. 2d 1031 (Fla. 5th DCA 2003)...6 Stockman v. Downs, 573 So. 2d 835 (Fla. 1991)... 5, 6 Stockman v. Duke, 578 So. 2d Winselmann v. Reynolds, 690 So. 2d 1325 (Fla. 3d DCA 1997) OTHER AUTHORITY Rule 1.120(g), Florida Rules of Civil Procedure...4 Rule 1.190(b), Florida Rules of Civil Procedure...7 Section , Florida Statutes...1, 2, 3, 10 iii

5 STATEMENT OF THE CASE AND FACTS In this case, Charles McGrath and Benjamin Bates seek discretionary review of a decision of the Florida First District Court of Appeal reversing an award of attorneys' fees to them under the wrongful act doctrine. Consistent with wellestablished Florida law, the First District concluded that attorneys' fees are an element of special damages under the wrongful act doctrine and, therefore, must be specifically pled. The First District found that McGrath and Bates failed to plead with specificity their entitlement to attorneys' fees based on the wrongful act doctrine. The attorneys' fees were awarded to McGrath and Bates in connection with a dispute involving their rights of ingress and egress to real property. McGrath and Bates use an unpaved trail leading off of Highway 98 to access their property. McGrath and Bates claimed that the trail is actually a county road, and that the Robbins denied them ingress and egress to their property by obstructing the trail during a construction project on the Robbins' property. McGrath and Bates sued the Robbins in the Santa Rosa County Circuit Court. McGrath and Bates did not allege any demand for special damages. Instead, McGrath and Bates included in the Complaint a demand for attorneys' fees based only on Section , Florida Statutes. McGrath and Bates filed a First Amended Complaint and a Second Amended Complaint adding Santa Rosa 1

6 County as a defendant, but failed to include in the amended pleadings any allegations relating to special damages. McGrath and Bates again included a demand for attorneys' fees based only on Section In their Trial Brief, served a week before the trial, McGrath and Bates included for the first time a request for an award of attorneys' fees as an element of damages. The Trial Brief, however, never once mentions the wrongful act doctrine. Instead, on page 6 of the Trial Brief, McGrath and Bates state only "[p]laintiffs are entitled to damages of $360,000, Winselmann v. Reynolds, supra, plus attorneys' fees." 1 McGrath and Bates repeated their demand for an award of attorneys' fees based on Section McGrath and Bates subsequently addressed the wrongful act doctrine for the first time in their Pretrial Memorandum served on the Robbins at 9:00 p.m. the night before the trial began. The case was tried on April 11-12, At the conclusion of the trial, the court determined that the unpaved trail was a county road and that McGrath's and Bates's access had been temporarily blocked by the construction on the Robbins' property. The court awarded McGrath and Bates nominal damages of $1, (rather than the $360,000 they sought). The court also determined that McGrath and Bates were entitled to recover their attorneys' fees and costs, not under Section 1 It is actually unclear whether McGrath and Bates intended the statement "plus attorneys' fees" to indicate a demand for fees as special damages or whether the reference was to their existing demand for damages under Section

7 as McGrath and Bates had pled, but instead as an element of special damages based on the Robbins' wrongful acts. The Robbins filed a motion to alter or amend, or alternative motion for rehearing, directed to the award of attorneys' fees. The Robbins pointed out in their motion that the only basis for attorneys' fees pled by McGrath and Bates was Section , and the trial court had made no finding in this case that the Robbins' defenses lacked any justiciable issue of law or fact. The trial court denied the motion for rehearing. The court awarded McGrath and Bates $38, in attorneys' fees (including paralegal fees), and $1, for their attorneys' fees expert. The court also awarded McGrath and Bates $11, in costs. The First District reversed the award of attorneys' fees and expert witness fees to McGrath and Bates. The First District also reduced the costs award by eliminating certain nontaxable costs. SUMMARY OF THE ARGUMENT McGrath and Bates have identified no express and direct conflict supporting this Court's discretionary review. The First District's decision is wholly consistent with well-established Florida law holding that special damages, including attorneys' fees under the wrongful act doctrine, must be pled with specificity. The cases upon which McGrath and Bates rely do not conflict with the First District's decision. McGrath and Bates appear to confuse the pleading requirements for an 3

8 award of prevailing party fees based on a statute or contract with the pleading requirements for attorneys' fees awarded as an element of special damages. Because McGrath and Bates cannot demonstrate any conflict, this Court should decline to review the First District's decision. ARGUMENT In this case, the Robbins challenged the trial court's award of attorneys' fees and costs because they were never properly pled as special damages. Under the wrongful act doctrine, attorneys' fees and costs are awardable as special damages. See, e.g., City of Tallahassee v. Blankenship & Lee, 736 So. 2d 29, 30 (Fla. 1st DCA 1999); Auto-Owners Ins. Co. v. Hooks, 463 So. 2d 468, 477 (Fla. 1st DCA1985). Rule 1.120(g), Florida Rules of Civil Procedure, requires that all special damages must be pled with specificity. Evidence of special damages is not admissible at trial, and special damages are not awardable, if the plaintiff has failed to plead special damages with specificity in the complaint. See Rule 1.120(g), Fla. R. Civ. Pro.; Newberry Square Development Corp. v. Southern Landmark, Inc., 578 So. 2d 750, 754 (Fla. 1st DCA), rev. dismissed, 584 So. 2d 999 (Fla. 1991); DeMello v. Buckman, 916 So. 2d 882, (Fla. 4th DCA 2005) (error to admit evidence of, and award, special damages not pled in the complaint); Precision Tune Auto Care, Inc. v. Radcliffe, 804 So. 2d 1287, (Fla. 4th DCA 2002) (same). An award of special damages not specifically pled constitutes reversible 4

9 error as a matter of law. See, e.g., Alderman v. Murphy, 486 So. 2d 1334, (Fla. 4th DCA 1986); Ephrem v. Phillips, 99 So. 2d 257, 263 (Fla. 1st DCA 1957). "It is automatic reversible error for the trial court to permit evidence of special damages without a pleading claiming such." MGH Enterprises, Inc. v. Nunnally, 536 So. 2d 317, 318 (Fla. 3rd DCA 1989). McGrath and Bates contend that the First District's decision in this case conflicts with this Court's decisions in Stockman v. Downs, 573 So. 2d 835 (Fla. 1991) and Caufield v. Cantele, 837 So. 2d 371 (Fla. 2002), as well as Brown v. Gardens by the Sea South Condominium Ass'n, 424 So. 2d 181 (Fla. 4 th DCA 1983). The cases cited by McGrath and Bates all stand for the general proposition that if a party has actual notice that the opposing party is seeking an award of prevailing party attorneys' fees, the pleading requirements may be relaxed. See Stockman v. Downs, 573 So. 2d at 838; Caufield, 837 So. 2d at ; Brown, 424 So. 2d at 184. As the courts made clear in these cases, the fundamental pleading requirement was notice. These cases, however, all involve a claim for prevailing party attorneys' fees awarded pursuant to a statute or contract, not attorneys' fees awarded as special damages. Notice is not the applicable standard in this case. A claim for special damages must be pled with specificity. As a result, Stockman, Caufield, and Brown do not conflict with the First District's decision. 5

10 The decision in Southland Construction, Inc. v. Greater Orlando Aviation, 860 So. 2d 1031 (Fla. 5 th DCA 2003) is particularly helpful on this point. Southland sued People's Gas for negligence in connection with the death of a Southland employee. In its complaint, Southland alleged that it had incurred attorneys' fees in connection with its successful defense of an OSHA citation arising out of the accident caused by People's Gas. Southland did not, however, specifically plead entitlement to fees under the wrongful act doctrine. As a result, the court rejected Southland's attempt to recover its attorneys' fees under the wrongful act doctrine. The court noted that Southland's allegation that it had incurred fees in the OSHA proceeding as a result of the accident caused by People's Gas was insufficient to plead a claim for special damages under the wrongful act doctrine. Like Southland, McGrath and Bates never pled with specificity any claim for attorneys' fees and costs under the wrongful act doctrine. As the Southland case makes clear, actual notice that the plaintiff intends to seek an award of attorneys' fees under another theory, or even an unspecified theory, is insufficient to satisfy the pleading requirements for an award of attorneys' fees as special damages. As a result, the First District properly concluded that McGrath and Bates failed to plead a claim for special damages. That conclusion does not conflict with the wholly different issues presented in Stockman v. Downs, Caufield, and Brown. 6

11 The First District's decision in Newberry Square is equally helpful. In Newberry Square, the court explained that the inclusion of a reference to special damages in a pretrial statement is insufficient to overcome the plaintiff's failure to specifically plead entitlement to special damages in the complaint. As the court in Newberry Square made clear, a plaintiff may not correct its failure to plead special damages by including a demand for special damages in documents filed shortly before trial. Contrary to McGrath's and Bates's contention, actual notice of a demand for special damages is no substitute for the required pleading. Clearly, the pleading requirements for attorneys' fees awarded as special damages are different than the pleading requirements for prevailing party fees. The First District's decision in this case is consistent with Florida law on this point. McGrath and Bates also contend that the First District's decision conflicts with numerous cases, including Stockman v. Duke, 578 So. 2d 831 (Fla. 2d DCA 1991; L.R.X., Inc. v. Horizon Associates Joint Venture, 842 So. 2d 881 (Fla. 4 th DCA 2003); Hollywood, Inc. v. Clark, 15 So. 2d 175 (Fla. 1943); City of Orlando v. Birmingham, 539 So. 2d 1133 (Fla. 1989), and Rule 1.190(b), Florida Rules of Civil Procedure, which permit unpled claims to be tried by the implied consent of the parties when there is no objection to the introduction of evidence in support of the claim. Again, McGrath and Bates have failed to establish any conflict on this point. 7

12 The First District rejected McGrath's and Bates's argument for the simple reason that they failed to prove their claim for attorneys' fees as special damages was actually tried by consent. There is no indication in the record that the Robbins expressly agreed to try McGrath's and Bates's claim for special damages. They did not. Instead, McGrath and Bates contend that the Robbins' failure to file a motion in limine or to object to the presentation of evidence on the issue of attorneys' fees and costs as special damages constitutes implied consent by the Robbins to try the issue. Again, McGrath and Bates disclosed their claim for attorneys' fees and costs as special damages under the wrongful act doctrine for the first time in their Pretrial Memorandum served on the Robbins via facsimile at 9:00 p.m. the night before the trial began. Given the last minute disclosure of their claim for special damages, McGrath's and Bates's suggestion that the Robbins should have filed a motion in limine before the trial is unreasonable. McGrath and Bates should have pled their claim for special damages and cannot avoid their obligation to do so by shifting the burden to the Robbins to have the claim excluded. See Precision Tune Auto Care, Inc. v. Radcliffe, 815 So. 2d 708, 712 (Fla. 4 th DCA 2002). Most important, the Robbins' failure to object to the admission of evidence on the issue of special damages does not demonstrate implied consent to try the issue unless McGrath and Bates could demonstrate that the evidence offered was relevant to no other issue being tried. See, e.g., Bilow v. Benoit, 519 So. 2d 1114, 8

13 1116 (Fla. 1 st DCA 1988); Cedars Medical Center, Inc. v. Ravelo, 738 So. 2d 362, 368 (Fla. 3d DCA 1999), rev. denied, 751 So. 2d 1253 (Fla. 2000); Raimi v. Furlong, 702 So. 2d 1273, 1285 (Fla. 3d DCA 1997), rev. denied, 717 So. 2d 531 (Fla. 1998). As the court explained in Bilow, for a party to rely on the lack of an objection as implied consent to try an unpled issue, the party must show that the evidence admitted without objection was irrelevant to any other properly pled issue. Thus, to establish that the issue of special damages was tried with the Robbins' implied consent, McGrath and Bates were required to show that evidence was presented on the issue of special damages, and that evidence was relevant to no other issue at trial. If the evidence offered by McGrath and Bates was pertinent to any other issue, the Robbins' failure to object to the evidence does not demonstrate their implied consent to try the issue of special damages. In fact, McGrath and Bates were unable to show that they presented any evidence relevant only to the issue of special damages. McGrath and Bates identified no witnesses that testified, and no exhibits that were offered into evidence, on the issue of special damages. Far from demonstrating that they presented evidence relevant solely to the issue of their special damages, McGrath and Bates conceded before the First District that no such evidence existed. They admitted that all of their evidence on special damages was "interlinked and intertwined" with the evidence presented on their other claims. As a result, 9

14 McGrath and Bates failed to demonstrate that their claim for attorneys' fees and costs was tried with the Robbins' consent. Nothing in the First District's decision creates any conflict on that issue. 2 CONCLUSION For all the foregoing reasons, this Court should decline to exercise over this case. Respectfully submitted, Stacy D. Blank Florida Bar No HOLLAND & KNIGHT LLP 100 N. Tampa Street, Suite 4100 Tampa, FL (813) (813) (fax) Attorneys for Respondents Carl Douglas Robbins and Deborah P. Robbins 2 McGrath and Bates also contend that the First District's decision conflicts with Winselmann v. Reynolds, 690 So. 2d 1325 (Fla. 3d DCA 1997). The First District, however, never reached the merits of the claim for fees under the wrongful act doctrine. McGrath and Bates further suggest conflict because the Robbins allegedly never raised the pleading issue in the trial court. To the contrary, the Robbins pointed out to the trial court in opposition to the fee award that McGrath and Bates had pled only their entitlement to fees under Section

15 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by Federal Express to Lisa S. Minshew, Esq., 433 E. Government Street, Pensacola, Florida 32501; and to Thomas V. Dannheisser, County Attorney, 6495 Caroline Street, Suite C, Milton, Florida on this day of June, Attorney CERTIFICATE OF TYPEFACE COMPLIANCE Counsel for appellants, Carl Douglas Robbins and Deborah P. Robbins, certifies that this Jurisdictional Brief is typed in 14-point (proportionately spaced) Times New Roman. Attorney # _v1 11