IN THE SUPREME COURT OF THE STATE OF FLORIDA. Supreme Court Case No. SC th DCA Case No. 4D RESPONDENTS BRIEF ON JURISDICTION

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1 IN THE SUPREME COURT OF THE STATE OF FLORIDA ALEXANDER SCHULTZ vs.. Petitioner Supreme Court Case No. SC th DCA Case No. 4D WALDEMAR K. SCHICKEDANZ et al., Respondents / RESPONDENTS BRIEF ON JURISDICTION ROD TENNYSON, P.A. ROD TENNYSON, ESQ. Florida Bar No Centrepark Blvd. Suite 100 West Palm Beach, Florida (561)

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3 TABLE OF CONTENTS Page Table of Contents Certificate of Interested Persons Table of Authorities i ii iii Statement of the Case 1-2 Argument 3 Conclusion 6 Certificate of Service/Font 7 i

4 CERTIFICATE OF INTERESTED PERSONS Counsel for Respondents certifies that the following persons and entities have or may have an interest in the outcome of this case. 1. Alexander Schultz (Attorney pro se for Plaintiff/Petitioner) 2. Rod Tennyson (Attorney for Defendants-Respondents) 3. Schickedanz Bros.-Riviera. Ltd. (Defendant-Respondent) 4. Schickedanz Bros-Palm Beach. Ltd. (Defendant-Respondent) 5. Schickedanz Enterprises, Inc. (Defendant-Respondent) 6. Waldemar Schickedanz (A principal of Defendant-Respondent) 7. Gerhard Schickedanz (A principal of Defendant-Respondent) 8. The Honorable Arthur G. Wroble (Trial Judge) 9. Fourth District Court of Appeal Panel The Honorable Larry A. Klein The Honorable Martha C. Warner The Honorable Robert M. Gross ii

5 TABLE OF AUTHORITIES CASES: Page Bernstein v. Berrin, 516 So. 2d 1042 (Fla. 2d DCA 1987) 5 Heirs of Waldon s Estate v. Rotella, 427 So.2d 261 (Fla. 5th DCA 1983) 3, 4 Katz v. N.M.E. Hosp., Inc., 842 So. 2d 853, 854 (Fla. 4th DCA 2002) 5 Moritz v. Hoyt Enterprises, Inc. 604 So.2d 807 (Fla. 1992) 3 Palma Sola Harbour Condo., Inc. v. Huber, 374 So. 2d 1135 (Fla. 2d DCA 1979) 5 OTHER: Rule 9.110(e), Fl. App. R. P. 4 Rule 9.200, Fl. App. R. P. 4 Rule 9.200(g), Fl. App. R. P. 5 Rule 9.600, Fl. App. R. P. 5

6 iii STATEMENT OF THE CASE AND FACTS The Petitioner in this case is Alexander Schultz, (hereinafter, Schultz) a licensed Florida Attorney who has represented himself throughout the 6 year history of this case without the benefit of any other objective counsel of record. Mr. Schultz filed this action, tried the case before jury, appealed to the District Court on two separate appeals, and now appeals the cause to this Court with himself as the client, contrary to the warning most lawyers receive in their first semester in law school. This case has been in litigation since October of 1998 and finally terminated in a jury verdict against Schultz in December The presiding trial judge was the Honorable Arthur G. Wroble who presided from January 2001 through the jury trial and fee hearings of 2002 and Schultz appealed the jury verdict against him which the District Court affirmed in Alexander Schultz v Schickedanz DCA #4D on October 8, (Merits Appeal). The District Court also awarded Schickedanz attorneys fees for the Merits Appeal. See attached Appendix. Schultz also appealed the Trial Court s award of attorneys fees and costs of $68, entered against Schultz on June 19, (Fee Appeal). The Trial Court Judge Wroble had earlier found Schultz liable for fees under his contract with Schickedanz but reserved ruling on the amounts until after the jury trial in December -1-

7 2002. The District Court upheld the Trial Court s fee award with minor revisions in Alexander Schultz v Schickedanz DCA #4D on September 29, (Fee Appeal). Schultz now seeks review by this Court of the Fee Appeal and decision of the District Court. The only issue raised by Schultz in the District Court Fee Appeal that Schultz now claims as decisional conflict is as follows: THE TRIAL COURT DID NOT HAVE JURISDICTION IN THIS MATTER, BECAUSE AFTER 110 DAYS THE RECORD WAS TRANSFERRED TO THE COURT OF APPEAL. -2-

8 THE DISTRICT COURT S DECISION ON JURISDICTION TO HEAR ATTORNEYS FEE ISSUES DOES NOT CONFLICT WITH OTHER APPELLATE DECISIONS. In it s decision the Fourth District stated: We hold that the trial court did not lose jurisdiction, nor did it err in entering the award of attorney s fees without the record under the facts of this case. While having the record before it may be necessary in cases such as Rotella, the trial court s award of attorney s fees without the record does not amount to reversible error in this case where the motion was heard by the same judge who tried the case and was familiar with the proceedings. Schultz argues that because the full court file record had been transported to the Fourth District for the Merits Appeal the Trial Court could not determine fees while that appeal was pending. Schultz argues that the District Court s opinion cited above conflicts with Moritz v. Hoyt Enterprises, Inc. 604 So.2d 807 (Fla. 1992) and Heirs of Waldon s Estate v. Rotella, 427 So.2d 261 (Fla. 5th DCA 1983). So such conflict exists on the face of these decisions and the Petition should be denied for the following reasons. In Moritz, supra the central issue was the determination of who is a prevailing party for purposes of awarding attorneys fees: It is our view that the fairest test to determine who is the prevailing party is to allow the trial judge to determine from the record which party has in fact prevailed on the significant issues tried before the court. Given the circumstances of this record, we find that the trial judge was within his discretion to grant Hoyt's motion for attorney's fees and costs. -3-

9 The Moritz court made no decision on the jurisdictional question of whether or not a trial court could award attorneys fees when the court record had previously been transmitted to the appellate court. There is absolutely no question that Schickedanz was the prevailing party because in the 12 years of this litigation Schultz has yet to win anything. There is no conflict between Schultz v. Schickedanz and Moritz. The Schultz v. Schickedanz District Court clearly distinguished the decision in Heirs of Waldon s Estate: Heirs of Waldon s Estate v. Rotella, 427 So. 2d 261 (Fla. 5th DCA 1983), is distinguishable. In that case, the court found review of the record was necessary in the award of attorney s fees to a personal representative because the trial court was required to determine which efforts were for the benefit of the estate where the attorney seeking fees wore several hats in dealing with the estate, including being a trustee in bankruptcy, attorney for the trustee, and attorney for the personal representative. Whether the attorney was entitled to be paid from estate funds for services rendered could be determined only by reviewing the pleadings and filings. 427 So. 2d at 264. Moreover, the court did not determine as a matter of law that an attorney s fee award could not be made when the record on appeal was already lodged in the appellate court. Schultz, in effect, is arguing that any appeal of a final judgment of the lower court, with the required transmittal of the Court file under Rule Fl. R. App. P., automatically stays the trial court from jurisdictionally hearing any award of attorneys fees pending appeal 1. Schultz cannot cite any decision by any Florida appellate court to support 1 Rule 9.110(e) Fl. R. App. P. mandates the court record be transmitted to the appellate court within 110 days. Because of the current complexity of fee -4-

10 this preposterous argument. In fact the cases overwhelmingly state just the opposite, that trial courts retain jurisdiction to award attorneys fees pending appeal: Section (b) of Rule provides, If the jurisdiction of the lower tribunal has been divested by an appeal from a final order, the court by order may permit the lower tribunal to proceed with specifically stated matters during the pendency of the appeal. This section permits a trial court to proceed with awarding trial attorney s fees pending appeal. [A] trial court is divested of jurisdiction upon notice of appeal except with regard to those matters which do not interfere with the power and authority of the appellate court or with the rights of a party to the appeal which are under consideration by the appellate court. Palma Sola Harbour Condo., Inc. v. Huber, 374 So. 2d 1135, 1138 (Fla. 2d DCA 1979) (emphasis added). The award of attorney s fees after trial does not interfere with the authority of the appellate court with regard to the matters under consideration in the main appeal; therefore, the trial court retains jurisdiction to make the award. Katz v. N.M.E. Hosp., Inc., 842 So. 2d 853, (Fla. 4th DCA 2002); Bernstein v. Berrin, 516 So. 2d 1042, (Fla. 2d DCA 1987). Schultz v. Schickedanz Opinion page 2. The transmittal of the file does not keep parties from submitting relevant portions of the file to the trial judge to determine fees, which was done in this case. evidentiary hearings and crowed trial dockets, trial courts seldom can schedule a fee hearing within this 110 day limitation. Rule 9.200(g) Fl. R. App. P. does not allow a return of this record until the appellate court has completed a final disposition. -5-

11 CONCLUSION In conclusion, the Schultz v. Schickedanz Opinion does not conflict with other Fourth District Court of Appeal's opinions, or with previous opinions of the other District Courts of Appeal, or with opinions of the Florida Supreme Court. Cases cited by Schultz do not create a clear and convincing conflict of decisions. For these reasons, it is imperative that this Court deny jurisdiction and not review the Fourth District Court of Appeal's Opinion in this cause. -6-

12 CERTIFICATE OF SERVICE/FONT I HEREBY CERTIFY that this brief and a true and correct copy of the foregoing has been furnished by [ , U.S. mail and/or fax] to Alexander Schultz, Esq., P. O. Box 32644, Palm Beach Gardens, FL 33420, this 29 th day of December, I HEREBY CERTIFY that Times New Roman #14 font was used in this brief Rod Tennyson, Esquire, 1450 Centrepark Boulevard, Suite 100, West Palm Beach, FL Florida Bar No By ROD TENNYSON Florida Bar No

13 IN THE SUPREME COURT OF THE STATE OF FLORIDA ALEXANDER SCHULTZ vs.. Petitioner Supreme Court Case No. SC th DCA Case No. 4D WALDEMAR K. SCHICKEDANZ et al., Respondents / RESPONDENTS APPENDIX District Courts authority for appellate attorneys fees ROD TENNYSON, P.A. ROD TENNYSON, ESQ. Florida Bar No Centrepark Blvd. Suite 100 West Palm Beach, Florida (561)

14 CERTIFICATE OF SERVICE I HEREBY CERTIFY that this brief and a true and correct copy of the foregoing has been furnished by [ , U.S. mail and/or fax] to Alexander Schultz, Esq., P. O. Box 32644, Palm Beach Gardens, FL 33420, this 29 th day of December, Rod Tennyson, Esquire, 1450 Centrepark Boulevard, Suite 100, West Palm Beach, FL Florida Bar No