IN THE SUPREME COURT STATE OF FLORIDA. CASE NO. SC08- Fourth District Court of Appeal Case No. 4D JAN DANZIGER, Petitioner,

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1 IN THE SUPREME COURT STATE OF FLORIDA CASE NO. SC08- Fourth District Court of Appeal Case No. 4D JAN DANZIGER, Petitioner, v. ALTERNATIVE LEGAL, INC., Respondent. ON DISCRETIONARY REVIEW OF A DECISION OF THE DISTRICT COURT OF APPEAL FOURTH DISTRICT BRIEF ON JURISDICTION OF PETITIONER KEITH T. GRUMER Nancy W. Gregoire, Esq. Florida Bar No nwg@bunnellwoulfe.com BUNNELL WOULFE KIRSCHBAUM KELLER & GREGOIRE, P.A. One Financial Plaza, 9th Floor Fort Lauderdale, Florida Telephone: ; Facsimile: Attorneys for Keith T. Grumer

2 TABLE OF CONTENTS Page TABLE OF CONTENTS TABLE OF CITATIONS i ii PREFACE 1 STATEMENT OF THE CASE AND OF THE FACTS 2 SUMMARY OF ARGUMENT 5 ARGUMENT 6 I. THE OPINION CONFLICTS WITH BOCA BURGER, MARCHINES, MIAMI MEDICAL, RUSSO & BAKER, AND STRICKLAND CONSTRUCTION ON AN APPELLATE COURT S AUTHORITY UNDER SECTION A. The Court s jurisdiction 6 B. The Fourth District s Opinion conflicts with Boca Burger and other cases on the same question of law 6 CONCLUSION 10 CERTIFICATE OF SERVICE 11 CERTIFICATE OF COMPLIANCE 11

3 TABLE OF CITATIONS Page Cases Barnett v. Barnett, 705 So. 2d 63 (Fla. 4th DCA 1997)... 9 Boca Burger, Inc. v. Forum, 912 So. 2d 561 (Fla. 2005)... 5, 7, 8 Department of Revenue ex rel. Marchines v. Marchines, 974 So. 2d 1085 (Fla. 2d DCA 2007)... 7 Kurzweil v. Larkin Hosp. Operating Co., 684 So. 2d 901 (Fla. 3d DCA 1996)... 7 Orange County Bldg. Codes v. Strickland Const. Services Corp., 913 So. 2d 718 (Fla. 5th DCA 2005)... 8 Russo & Baker, P.A. v. Fernandez, 752 So. 2d 716 (Fla. 3d DCA 2000)... 8 United Auto. Ins. Co. v. Miami Medical Group, Inc., 935 So. 2d 41 (Fla. 3d DCA 2006)... 8 Statutes , Fla. Stat. passim Other Authorities Article V, 3(b)(3), Fla. Const. 6 Fla. R. App. P (g)... 9 Fla. R. App. P (a)(2) ii

4 iii

5 PREFACE This is Petitioner Keith T. Grumer s request for discretionary review of a May 21, 2008 Opinion of the District Court of Appeal of the State of Florida, Fourth District. Petitioner Keith T. Grumer will be referred to as Grumer. Respondent Jan Danziger will be referred to as Danziger. iv

6 STATEMENT OF THE CASE AND OF THE FACTS A. Introduction 1 The Opinion states that the sole issue before the Fourth District was whether the trial court erred in failing to enter judgment for attorney s fees pursuant to section , Florida Statutes (2006), against both appellant and appellant s prior counsel, Keith Grumer. The Fourth District held, as a matter of law, that Grumer was responsible for 50% of the section attorney s fees assessed against Danziger. It did so without designating Grumer a party to the appeal, without directing him to file a brief in the appeal, without affording him an opportunity to address the issue at the trial court level, without recognizing that the trial court intended to find only Danziger responsible for the fees, and without providing the trial court an opportunity to more fully explain its intention to do so. Grumer now seeks this Court s review to clarify the procedure necessary to an appellate court s assessment of attorney s fees under section based on proceedings at the trial court level. B. Procedural Background Before the Trial Court 1 All statements in this Jurisdictional Brief are based on the Opinion. 2

7 The original dispute below was a failed real estate sale. Danziger, through Grumer, sued the original defendant, Mark Tamecki, for breach of an oral contract to sell her a parcel of land at an agreed price. She claimed that after he offered the land at a lower number and she accepted, but before they signed a contract, he raised the price. In order to avoid the statute of frauds, Grumer, on behalf of Danziger, alleged the Judicial Admissions Exception, because Tamecki admitted that he and Danziger had an oral agreement at the lower price. Tamecki moved to dismiss the complaint and for an award of fees. The trial court granted the motion to dismiss in part and ultimately granted Tamecki s motion for summary judgment on the remaining counts. The court also issued a Final Judgment Awarding Attorney s Fees and Costs to Tamecki on the basis of section , but it did so against Danziger alone. In seeking the fee award, Tamecki argued that the Plaintiff and the Plaintiff s attorney knew or should have known that the causes of action asserted in the allegations of the complaint were not supported by material facts and not supported by application of the then existing [law] to those existing facts (Opinion at 4). In the Final Judgment, however, the trial court specifically found that the evidence did not support that there was a good faith attempt by 3

8 Plaintiff to create new law (Opinion at 4). The Final Judgment was silent on the Plaintiff s attorney and awarded fees against Danziger, the Plaintiff, alone (Opinion at 4). C. Procedural Background Before the Fourth District Danziger appealed the Final Judgment to the Fourth District. Initially she was represented by Grumer but later replaced him and, through her own corporation Alternative Legal, Inc., took an assignment of the Final Judgment. Danziger filed the only brief before the Fourth District, arguing that Grumer should be liable for 50% of the fees assessed against her. There was no opposition by Alternative Legal because it was her own corporation. 2 There was also no opposition from Grumer, because he was not a party to the appeal and thus not authorized under the Florida Rules of Appellate Procedure to participate or file a brief. Only after the Fourth District issued the Opinion assessing fees against him did he file a Motion for Rehearing pointing out the numerous factual and legal errors in the Opinion. The Fourth District denied the Motion for Rehearing without comment. Grumer now seeks this Court s review. 2 Grumer pointed this out in a Suggestion of Fraud upon the Court. 4

9 SUMMARY OF ARGUMENT The Fourth District s Opinion conflicts with Boca Burger and other Florida cases on an appellate court s responsibility in considering appeals of judgments entered under section , Florida Statutes. 5

10 ARGUMENT I. THE OPINION CONFLICTS WITH BOCA BURGER, MARCHINES, MIAMI MEDICAL, RUSSO & BAKER, AND STRICKLAND CONSTRUCTION ON AN APPELLATE COURT S AUTHORITY UNDER SECTION A. The Court s jurisdiction. The Court s jurisdiction is governed by section 3(b)(3) of article V of the Florida Constitution, which provides that the Court [m]ay review any decision of a district court of appeal... that expressly and directly conflicts with a decision of another district court of appeal or of the supreme court on the same question of law. B. The Fourth District s Opinion conflicts with Boca Burger and other cases on the same question of law. The version of section at issue here provides: (1) Upon the court's initiative or motion of any party, the court shall award a reasonable attorney s fee to be paid to the prevailing party in equal amounts by the losing party and the losing party s attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial: (a) Was not supported by the material facts necessary to establish the claim or defense; or (b) Would not be supported by the application of then-existing law to those material facts. However, the losing party s attorney is not personally 6

11 responsible if he or she has acted in good faith, based on the representations of his or her client as to the existence of those material facts. If the court awards attorney s fees to a claimant pursuant to this subsection, the court shall also award prejudgment interest. (2) Paragraph (1)(b) does not apply if the court determines that the claim or defense was initially presented to the court as a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law, as it applied to the material facts, with a reasonable expectation of success , Fla. Stat. (2006) (emphases supplied). Here, the Fourth District failed to follow the statutory dictates for two reasons. First, because the Final Judgment did not contain the necessary findings regarding Grumer as opposed to Danziger the Fourth District failed to return this case to the trial court for the necessary findings. In Boca Burger, Inc. v. Forum, 912 So. 2d 561, 569 (Fla. 2005), citing Kurzweil v. Larkin Hospital Operating Co., 684 So. 2d 901, 902 (Fla. 3d DCA 1996), the Court explained that when a trial court has failed to make... findings [under section ], [the appellate court is] without authority to do so in the first instance on appeal. The Court further explained that if the district court was concerned with counsel s conduct in the trial court the proper procedure was to remand for the circuit court to allow the trial court to determine for itself whether to impose sanctions. Boca Burger at 569. The trial court had not imposed sanctions for such actions, and no authority exists for an appellate court s imposition 7

12 of sanctions for conduct occurring in the trial court. Id. Following Boca Burger, the Second, Third and Fifth Districts have held that where a trial court does not explicitly include findings to support a section award, the matter should be returned to the trial court for that determination. In Department of Revenue ex rel. Marchines v. Marchines, 974 So. 2d 1085, 1087 (Fla. 2d DCA 2007), for example, the Second District held that the trial court s order assessing section attorney s fees was reversible because it did not include any findings supporting a section award. Similarly, in United Automobile Insurance Company v. Miami Medical Group, Inc., 935 So. 2d 41, 43 (Fla. 3d DCA 2006), the Third District quashed a fee order and remanded the matter to the trial court to determine whether the sanction was appropriate. The Fifth District did the same in Orange County Building Codes v. Strickland Construction Services Corp., 913 So. 2d 718, 720 (Fla. 5th DCA 2005), holding that it was for the trial court to make the necessary findings. See also Russo & Baker, P.A. v. Fernandez, 752 So. 2d 716, 717 (Fla. 3d DCA 2000) (reversing and remanding for the statutory determination). In this case, in contrast to the dictates of Boca Burger and the cases from the Second, Third, and Fifth Districts, the Fourth District did not reverse and remand for the trial court to make the 8

13 necessary findings. Rather, it determined for itself that Grumer should be responsible to pay one-half of the assessed section fees. Yet the Opinion reflects that the trial court specifically did not find Grumer responsible for section fees. To the contrary, it explicitly held that only the Plaintiff, Danziger, was responsible and that there was no good faith attempt by the Plaintiff to create new law. 3 Those findings were in the face of a Motion for Attorney s Fees that specifically alleged that the Plaintiff and the Plaintiff s attorney were responsible. In the absence of findings regarding Grumer s responsibility, and particularly since the trial court could well have concluded that Grumer relied in good faith on Danziger s representations to him, the Fourth District should have reversed and remanded for further evidentiary hearings regarding Grumer s responsibility. Second, even if the Fourth District properly considered the issue itself rather than reversing and remanding, it should have provided for Grumer to file an answer brief in opposition to the sole brief filed by Danziger. The Florida Rules of Appellate Procedure have no provision for circumstances such as this, and the vacuum 3 While the Opinion notes that Danziger testified that she never gave Grumer a deposit check, the pleading alleged that she gave the deposit check to counsel, not Grumer. This distinction could well have led to the trial court s decision. 9

14 results in a violation of due process for any attorney involved in section proceedings. Under Florida Rule of Appellate Procedure 9.020(g), an appellant is a party who seeks to invoke the appeal jurisdiction of a court, and in this case that is Danziger. An appellee is [e]very party in the proceeding in the lower tribunal other than an appellant, and that is not Grumer. The general rule is that a non-party such as Grumer is a stranger to the record who has no standing in an appellate court. Barnett v. Barnett, 705 So. 2d 63, 64 (Fla. 4th DCA 1997). In a client s appellate proceeding under section against a former counsel, however, application of the general rule results in a violation of due process, because there is no procedural vehicle by which the former counsel is designated a party to the appeal. This case appears to be unique, but is capable of recurring and resulting in the exact due process violations that occurred in this case. Because these section proceedings involve counsel who are not parties under the rules, and thus have no opportunity to defend themselves in appellate proceedings such as these, the Court should accept jurisdiction, clarify the guidelines for appellate proceedings under section , and if appropriate direct the Florida Rules of Appellate Procedure Committee to address the issue. 10

15 CONCLUSION For the foregoing reasons, the Opinion should be quashed and the Fourth District directed to return this case to the trial court for further proceedings. 11

16 CERTIFICATE OF SERVICE We certify that a true and correct copy of the above and foregoing was furnished by U.S. Mail to the persons on the attached Service List this day of October CERTIFICATE OF COMPLIANCE We certify that this brief complies with the font requirements set forth in Florida Rule of Appellate Procedure 9.210(a)(2). Respectfully submitted, Nancy W. Gregoire, Esq. Florida Bar No nwg@bunnellwoulfe.com BUNNELL WOULFE KIRSCHBAUM KELLER & GREGOIRE, P.A. One Financial Plaza, 9th Floor Fort Lauderdale, Florida Telephone: ; Facsimile: Attorneys for Keith T. Grumer 12

17 SERVICE LIST Keith T. Grumer, Esq. GRUMER & MACALUSO, P.A. One East Broward Boulevard, Suite 1501 Fort Lauderdale, Florida Tel: ; Fax: Edward J. Jennings, Esq. EDWARD J. JENNINGS, P.A. 200 S.E. 18th Court Fort Lauderdale, Florida Tel: ; Fax: