IN THE SUPREME COURT OF FLORIDA EVENT SERVICES AMERICA, INC. d/b/a CONTEMPORARY SERVICES COMPANY, CASE NO. SC06-284 Lower Tribunal No: 3d04-2368 v. Petitioner, ANTHONY RAGUSA and KAREN RAGUSA, his wife, JAMES NAPIER, SCOTT MARINO, ANNETTE A. SCOTT and BRYAN SCOTT, her husband, ROBERT BEEH and DARLENE BEEH, his wife, Respondents. / RESPONDENTS BRIEF ON JURISDICTION NEAL W. HIRSCHFELD, ESQ. Greenspoon, Marder, Hirschfeld, Rafkin, Trade Centre South, Suite 700 100 W. Cypress Creek Road Ft. Lauderdale, FL 33309 (954) 491-1120/Fax (954) 267-8030 Fla. Bar No. 315 389 JOEL S. PERWIN, P.A. 169 East Flagler Street, Suite 1422 Miami, Florida 33131 (305) 779-6090 / Fax (305) 779-6095 By: JOEL S. PERWIN Fla. Bar No. 316814
TABLE OF CONTENTS Table of Authorities... ii I. STATEMENT OF THE CASE AND FACTS... 1 II. SUMMARY OF THE ARGUMENT... 3 III. ISSUE ON REVIEW... 4 WHETHER THE DISTRICT COURT S DECISION DIRECTLY OR EXPRESSLY CONFLICTS WITH ANY DECISION OF THIS COURT OR ANY OTHER DISTRICT COURT OF APPEAL... 4 IV. ARGUMENT... 4 V. CONCLUSION... 9 CERTIFICATE OF SERVICE SERVICE LIST CERTIFICATE OF COMPLIANCE
TABLE OF AUTHORITIES Cases Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)... 7 Cooley v. Certified Grocers of Florida, 629 So. 2d 273 (Fla. 1st DCA 1993)... 6 Dep t of Highway Safety and Motor Vehicles, Florida Highway Patrol v. Weinstein, 747 So. 2d 1019 (Fla. 3d DCA 1999)... 8 Eagleman v. Eagleman, 673 So. 2d 946 (Fla. 4th DCA 1996)... 4, 8 Evans v. Piotraczk, 724 So. 2d 1210 (Fla. 5th DCA 1998)... 8 Event Services America, Inc. v. Ragusa, 917 So. 2d 882, 884 (Fla. 3d DCA 2005)... passim Fox v. McCaw Cellular Communications of Florida, Inc., 745 So. 2d 330 (Fla. 4th DCA 1998)... 8 Hartford Cas. Ins. Co. v. Silverman, 689 So.2d 346 (Fla. 3d DCA 1997), review denied, 707 So. 2d 1124 (Fla. 1998)... 8 Knealing v. Puleo, 675 So. 2d 593 (Fla. 1996)... 7 Marcoux v. Marcoux, 464 So. 2d 542 (Fla. 1985)... 4 ii
McMahan v. Toto, 311 F.3d 1077, 1083 (11th Cir. 2002), cert. denied sub nom. Nemesis Veritas, L.P. v. Toto 539 U.S. 914 (2003)... 8 Peoples Gas System, Inc. v. Acme Gas Corp., 689 So.2d 292 (Fla. 3d DCA 1997)... 6, 8 TGI Friday s, Inc. v. Dvorak, 663 So. 2d 606 (Fla. 1995)... 7 iii
I. STATEMENT OF THE CASE AND FACTS Although the Petitioner (hereinafter Event Services ) has attached a copy of the District Court s decision, its brief challenges a different decision, which was never made, without telling the Court what the District Court actually decided. Nor does the Petition ever address the body of evidence, summarized by the District Court, which supported the Plaintiffs case against Event Services at the time of its nominal offer of judgment. Instead, Event Services brief is a partisan protest, devoid of any objectivity. The place to start, therefore, is with the actual decision, which Event Services has neither described nor attacked. Event Services America, Inc. v. Ragusa, 917 So. 2d 882, 884 (Fla. 3d DCA 2005) (hereinafter Opinion ). As Event Services acknowledges (Brief at 5, 7) the District Court appreciated that good faith is the standard against which awards of attorney s fees must be measured when enforcing proposals for settlement... (Brief at 5) (see Opinion at 884). Event Services also acknowledges the District Court s recognition that good faith is shown if the offeror ha[s] some reasonable foundation on which to base an offer, (Brief at 7, citing Opinion at 884). Its argument is that the District Court departed from that standard in appraising the facts of the case. It would have iv
been appropriate, therefore, for Event Services to discuss the facts recited in the District Court (Opinion at 884-85): Here, the trial court did not abuse its discretion by striking the proposals because the Appellee s claim had merit and it appeared Event Services had at least some exposure at the time the offers were made. There were eyewitness accounts stating the crowd had not been properly regulated and some testimony that there were more than two people per step at the time of the accident, exceeding the manufacturer s stated limit. Also, it is undisputed that Event Services did not shut off the escalator in a timely manner after the accident occurred. Although many of these facts were disputed, there was still a sufficient basis at the time of the offers to indicate that Event Services would reasonably face liability. The fact that the claim against Event Services survived a motion for summary judgment bears this point out. Indeed, the trial court noted that its gut response is it s not fair for [the Appellees] to have to pay [Event Services ] attorney s fees because the issue really needed to be litigated. Here, the record supports the trial court s decision. There is no statutory requirement that the court state specific findings to justify its exercise of discretion. 1 Four important points are stated in this passage. First, the reasonableness of the offer is judged by the offeror s exposure at the time the offers were made. Throughout this proceeding, Event Services has cited only the evidence at trial (see 1 As this passage demonstrates, there is no merit to Event Services statement (Brief at 9) that [t]he District Court does not explain what iota of conflicting evidence may have justified the denial of summary judgment.... 2
its brief at 3, 9). Second, there was significant evidence against Event Services at the time of the offer--a fact which Event Services has never addressed. Third, the District Court did not base its decision on the fact that the trial court denied its motion for summary judgment. It said that this was only one factor which bears this point out. Fourth, the District Court did not base its decision on the trial court s gut response that it s not fair for [the Appellees] to have to pay [Event Services ] attorney s fees because the issue really needed to be litigated, (Opinion at 884-85). This was just another factor ( Indeed the trial court noted..., Opinion at 885). In failing to accurately describe the District Court s opinion, Event Services challenge is based on a holding which was never made. II. SUMMARY OF THE ARGUMENT Event Services has attributed to the District Court a number of statements which the court did not make. In the process, it has not addressed, or even mentioned, the evidence against it at the time it made a nominal offer based on liability alone. Consideration of that evidence was a legitimate factor in the trial court s exercise of discretion. Because the District Court neither misstated nor misapplied any settled legal principal, there is no conflict jurisdiction. III. 3
ISSUE ON REVIEW WHETHER THE DISTRICT COURT S DECISION DIRECTLY OR EXPRESSLY CONFLICTS WITH ANY DECISION OF THIS COURT OR ANY OTHER DISTRICT COURT OF APPEAL. IV. ARGUMENT Scattered throughout its brief are six arguments upon which Event Services bases its assertion of conflict. In the order raised, they are: 1. Event Services objects that there was no express finding recited by the circuit judge that the proposal was made in bad faith, or even in the absence of good faith (Brief at 2). See also Brief at 1 ( Without any finding by the trial court regarding the absence of good faith, the decision below was necessarily predicated on such other issues.... As the District Court noted (Opinion at 885): There is no statutory requirement that the court state specific findings to justify its exercise of discretion. 2 Event Services has cited no authority to the contrary. 2 See generally Marcoux v. Marcoux, 464 So. 2d 542, 544 (Fla. 1985). Thus, for example, in Eagleman v. Eagleman, 673 So. 2d 946, 948 (Fla. 4th DCA 1996), in which the trial court stated only that the defendant s nominal offer was not based on any reasonable foundation, but was made merely to lay a predicate for a future award of attorney s fees and costs, its exercise of discretion was upheld. 4
2. Event Services manufactures conflict in attributing to the District Court s mention of the circuit judge s gut feeling its approval as an appropriate basis for exercising discretion (see Brief at 2, 4, 6). As noted, the District Court made no such statement. After stating its holding, it simply added that [i]ndeed the circuit court had intuitively recognized the correct standard. 3. Event Services protests that after a nominal acknowledgment that good faith is the only appropriate standard, the District Court then endorsed consideration of multiple issues in a single sentence of its Opinion, stating: The issues--good faith or not; whether to award or not--are expressly addressed to the trial court s exercise of discretion (Opinion at 885). 3 It is difficult to understand how Event Services can attribute to this single statement the District Court s abandonment of the good-faith standard in favor of a consideration of multiple issues. Moreover, even if the District Court had made such a statement, it is obvious that the administration of a general good-faith standard must consider a number of relevant factors. As we noted, the general rule in any case evaluating a 3 See also Brief at 4 ( instead allowing consideration of multiple issues, such as the issues--good faith or not; whether to award or not ); 5 ( The decision conflicts with the other precedent holding that the absence of good faith is the sole factor that may be considered ); 5-6 ( [a]lthough citing [a decision] for the proposition that good faith is the standard, the District Court re-wrote the standard to include multiple factors ). 5
district court s discretion is whether there is competent, substantial evidence to support its ruling. Cooley v. Certified Grocers of Florida, 629 So. 2d 273 (Fla. 1st DCA 1993). Necessarily, a trial court s exercise of discretion is based upon the record. Peoples Gas System, Inc. v. Acme Gas Corp., 689 So.2d 292, 300 (Fla. 3d DCA 1997). That is no less true when a trial court is evaluating an offeror s good faith. 4. Event Services says that any analysis of the reasonableness of the case for liability is irrelevant to the only legitimate inquiry: whether the offeree had a reasonable basis for non-liability (Brief at 10) (emphasis added; see Brief at 2, 7-8). Event Services contends that the District Court was wrong to say that one necessary criterion (though not necessarily sufficient) is that the offer can be considered reasonable only where the disputed record strongly indicates that the defendant had no exposure in the case (Brief at 3, quoting Opinion at 884). Event Services [s]pecifically objects to the District Court s statement that the offer was not reasonable because there was sufficient basis at the time of the offers to indicate that Event Services would reasonably face liability, Brief at 2-3, citing Opinion at 884 --a standard which Event Services says focuses on essentially, the Plaintiff s view of whether to accept the offer or pursue liability. 4 4 6
This is a non-sequitur. A plaintiff might reject an offer of settlement for all sorts of reasons, but that is not the issue. We agree with Event Services that the existence of a reasonable basis for a plaintiff to pursue liability and reject a proposal for settlement is not mutually exclusive with the existence of a reasonable basis for making such a proposal (Brief at 7); and that the mere fact a plaintiff might have a reasonable basis for pursuing liability does not necessarily exclude a defendant s reasonable calculation that it faced only nominal liability (Brief at 8). The District Court did not remotely say that the trial court should consider these many factors. It said only that the good faith of the objection obviously depends in part on one of those factors--the strength of the plaintiff s case. And of course that criterion is relevant. It is the single most important factor in evaluating the offeror s good faith, whether one considers it the Plaintiff s side of the case (Brief at 7), or instead the See also Brief at 7 (District Court skipped an analysis of the basis for Event Services proposal and substituted a contrary analysis of whether Event Services might reasonably be pursued for liability -- essentially an evaluation of the Plaintiff s side of the case ); Brief at 8 ( The rule of irrelevance of a case for liability makes eminent sense because as this Court has established, the standard of reasonableness is not an inevitable conclusion, but one over which reasonable people might disagree, citing Canakaris v. Canakaris, 382 So. 2d 1197, 1112 (Fla. 1980); (Brief at 7-8, citing Knealing v. Puleo, 675 So. 2d 593, 595 (Fla. 1996), ( the reasonableness of the plaintiff s rejection [of the offer] is irrelevant to the question of fee entitlement ). Accord, TGI Friday s, Inc. v. Dvorak, 663 So. 2d 606 (Fla. 1995). 7
obstacles facing the Defendant. They are exactly the same question. The District Court said (Opinion at 885): A reasonable basis for a nominal offer exists only where the undisputed record strongly indicate[s] that [the defendant] had no exposure in the case. Peoples Gas Sys., Inc. v. Acne Gas Corp., 689 So. 2d 292, 300 (Fla. 3d DCA 1997). Therefore, a nominal offer should be stricken unless the offeror had a reasonable basis to conclude that its exposure was nominal. Dep t of Highway Safety and Motor Vehicles, Florida Highway Patrol v. Weinstein, 747 So. 2d 1019 (Fla. 3d DCA 1999). As the court put it in Evans v. Piotraczk, 724 So. 2d 1210, 1211 (Fla. 5th DCA 1998): The question to be considered by the court in determining good or bad faith is whether the offer bears a reasonable relationship to the amount of damages suffered and a reasonable assessment of liability. The court must determine if the offer reflected a realistic [view] of the claims made. Hartford Cas. Ins. Co. v. Silverman, 689 So.2d 346, 348 (Fla. 3d DCA 1997), review denied, 707 So. 2d 1124 (Fla. 1998). Accord, Eagleman v. Eagleman, 673 So. 2d 946, 948 (Fla. 4th DCA 1996). The same is true of nominal offers. They are suspect when they are not based on any assessment of liability and damages. Fox v. McCaw Cellular Communications of Florida, Inc., 745 So. 2d 330, 332 (Fla. 4th DCA 1998), quoted in McMahan v. Toto, 311 F.3d 1077, 1083 (11th Cir. 8
2002), cert. denied, sub. nom. Nemesis Veritas, L.P. v. Toto, 539 U.S. 914 (2003). The court must examine the entire record of the case -- the facts and circumstances surrounding the offer. Fox, supra, 745 So. 2d at 333. Obviously the strength of the Plaintiff s case is relevant. There is no contrary authority. 5. Event Services characterizes the Court s asserted new standard as tantamount to a summary judgment standard (Brief at 3), because the Court said: The fact that the claim against Event Services survived a motion for summary judgment bears this point out (Opinion at 884; see also Brief at 9). As we noted, the District Court said no such thing. It merely pointed out that the denial of a defendant s motion for summary judgment is relevant because it means that there is evidence for the plaintiff, which suggests that a nominal offer was not made in good faith. 6. Event Services finds error (and apparently conflict) in the asserted failure of both the trial court and the District Court to consider the jury s eventual exoneration of Event Services. See Brief at 3 (Plaintiff s evidence was rejected as incredible or immaterial by the jury ); 9 ( certainly the jury found (no evidence) that mattered ). As noted earlier, the only relevant perspective is at the time the offer was made. Event Services has cited no contrary authority. 9
V. CONCLUSION It is respectfully submitted that Event Services has shown no conflict, and its Petition should be denied. 10
CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing was mailed March, 2006 to all counsel of record on the attached service list. Respectfully submitted, NEAL HIRSCHFELD, ESQ. Greenspoon, Marder, Hirschfeld, Rafkin, Trade Centre South, Suite 700 100 W. Cypress Creek Road Ft. Lauderdale, FL 33309 (954) 491-1120/Fax (954) 267-8030 Fla. Bar No: 315389 JOEL S. PERWIN, P.A. 169 East Flagler Street, Suite 1422 Miami, Florida 33131 (305) 779-6090 / Fax (305) 779-6095 _ By: JOEL S. PERWIN Fla. Bar No. 316814 11
Hal B. Anderson, Esq. W. Tucker Craig, Esq. Billing Cochran Heath Lyles, et al. 888 S.E. Third Avenue Suite 301 Ft. Lauderdale, FL 33316 William E. Johnson, P.A. 477 South Rosemary Avenue, Suite 303 West Palm Beach, FL 33401 Eli Kaplan, Esq. Kaplan & Miller, P.A. 999 Ponce de Leon Blvd. Suite 20 Coral Gables, FL 33134 Ronald A. David, Esq. Ronald A. David & Associates, P.A. 555 South Federal Highway, Suite 440 Boca Raton, FL 33432 Richard A. Bolton, Esq. Bolton & Gross, P.A. 801 N.E. 167th Street, 2nd Floor North Miami Beach, FL 33162 Jack Paris, Esq. Leeds, Colby & Paris, P.A. 2400 S. Dixie Highway, Suite 100 Miami, FL 33133 Michael J. Ferrin, Esq. 823 North Olive Avenue West Palm Beach, FL 33401 SERVICE LIST
David M. Gaspari, Esq. 515 N. Flagler Drive, Suite 1000 West Palm Beach, FL 33401 Richard P. Hermann, II, Esq. Gordon Hargrove & James, P.A. 2400 E. Commercial Blvd., Suite 1100 Ft. Lauderdale, FL 33308
CERTIFICATE OF COMPLIANCE WE HEREBY CERTIFY that this computer-generated brief is in compliance with the font requirements of Rule 9.210(a)(2), Fla. R. App. P. as submitted in Times New Roman 14-point. JOEL S. PERWIN Florida Bar No. 316814