Response to Petition for Attorneys Fees

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					      IN THE SUPREME COURT FOR THE STATE OF FLORIDA

                                                 CASE NO. SC08-390
                                             DCA CASE NO. 5D04-3052

DELTA FIRE SPRINKLERS, INC.,

      Petitioner,

v.

SOUTHTRUST BANK, N.A.,

     Respondent.
_____________________________________________________________


                    RESPONSE OPPOSING PETITION
                    FOR DISCRETIONARY REVIEW


        FROM THE FIFTH DISTRICT COURT OF APPEAL

        RESPONDENT’S BRIEF OPPOSING JURISDICTION



Alfred Truesdell, Esquire
Florida Bar No. 885363
J. Timothy Schulte, Esquire
Florida Bar No. 769169
ZIMMERMAN, KISER & SUTCLIFFE, P.A.
315 E. Robinson St., Ste. 600
Orlando, FL 32801
(407) 425-7010
atruesdell@zkslawfirm.com
tschulte@zkslawfirm.com
Attorneys for Respondent, Southtrust Bank, N.A.




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                                     TABLE OF CONTENTS

Jurisdictional Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

Statement of the Case and Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

A.       SouthTrust’s Motion for Appellate Attorneys’ Fees For
         Appeal No. 5D04-3052 Was Granted By the Fifth District . . . . . . . . .2

B.       SouthTrust’s Award of Appellate Attorneys’ Fees Was Not
         Issued Sua Sponte, But in Response to a Motion for Appellate
         Attorneys’ Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

C.       The Fee Award Was Based on This Appeal, Not on Events in
         the Trial Court or in a Separate Appeal . . . . . . . . . . . . . . . . . . . . . . . .3

Summary of Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6

Legal Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

I.       JURISDICTION SHOULD BE DENIED BECAUSE THE
         FIFTH DISTRICT ORDER GRANTING SOUTHTRUST’S
         MOTION FOR REVIEW OF THE TRIAL COURT ORDER
         REFUSING TO DETEMINE THE AMOUNT OF APPELLATE
         ATTORNEYS’ FEES TO AWARD SOUTHTRUST ON
         REMAND DOES NOT CONFLICT WITH THE SUPREME
         COURT’S DECISION IN BOCA BURGER v. FORUM, AND
         THEREFORE, THIS COURT’S DISCRETIONARY
         JURISDICTION SHOULD NOT BE INVOKED. . . . . . . . . . . . . . . . 7

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10




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                                  TABLE OF CITATIONS

Boca Burger, Inc. v. Forum, 912 So. 2d. 561, 574 (2005) . . . . . . 1, 6, 7, 8, 9

Delta Fire Sprinklers, Inc. v. SouthTrust Bank, N.A., 940 So. 2d
164 (Fla. 5th DCA 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145,
1151-52 (Fla. 1985). (Pet. Brief, pp. 2-6, 8). . . . . . . . . . . . . . . . . . . . . . . . . 7

Sierra v. Sierra, 505 So. 2d 432, 434 (Fla. 1987). . . . . . . . . . . . . . . . . . . . 7, 8

Fla. R. App. P. 9.030(a)(2)(A)(iv). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

Fla. R. App. P. 9.400(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

Florida Statute § 57.105. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3




                                                     ii
                      JURISDICTIONAL STATEMENT

      Petitioner Delta Fire Sprinklers, Inc. (“Delta”) is asking this Court to

exercise discretionary jurisdiction on the basis of an alleged conflict among

appellate courts. (Pet. Brief, pp. 1, 5, 8, 9). The Supreme Court may invoke

discretionary jurisdiction when an order being appealed “expressly and

directly conflict[s] with a decision of another district court of appeal or of

the Supreme Court on the same question of law.”              Fla. R. App. P.

9.030(a)(2)(A)(iv).

      Delta’s argument for jurisdiction is that the December 7, 2007 Order

by the Fifth District Court of Appeal (“Fifth District”) reversing a trial court

order denying appellate attorneys’ fees that were previously ordered by the

Fifth District, conflicts with the Supreme Court decision in Boca Burger,

Inc. v. Forum, 912 So. 2d. 561, 574 (2005). (Pet. Brief, pp. 1, 5, 8; Appx. to

Pet. Brief). However, because no conflict exists, and no other provision of

Rule 9.030(a)(2)(A) applies, this Court should deny Delta’s petition and

decline to exercise discretionary jurisdiction.

               STATEMENT OF THE CASE AND FACTS

      Delta is asking this Court to hear the appeal of an Order by the Fifth

District granting SouthTrust Bank, N.A.’s (“SouthTrust”) Motion for

Review of Order of Trial Court Denying Appellate Attorneys’ Fees and



                                       1
Costs on Remand (“Motion for Review”), pursuant to Florida Rule of

Appellate Procedure 9.400(c). (Appx. to Pet. Brief). The December 7, 2007

Order by the Fifth District reversed an order by the trial court refusing on

remand to determine the amount of appellate attorneys’ fees to be awarded

to SouthTrust in Appeal No. 5D04-3052. (Appx. to Pet. Brief). The Fifth

District on August 15, 2006 affirmed per curiam the dismissal of Delta’s

Amended Complaint and in a separate order issued that same day remanded

the case to the trial court to determine the amount of fees SouthTrust should

be awarded for having to defend this frivolous appeal. (Appx. 1 and 2). The

issue of entitlement to appellate fees was settled by the Fifth District in the

August 15, 2006 order. (Appx. 2). The only issue facing the trial court on

remand was the amount of fees to be awarded. Yet at an evidentiary hearing

in September 19, 2007, the trial judge refused to assess fees to SouthTrust

without more specific findings from the appellate court. The trial court

instead issued an order denying appellate attorneys’ fees and costs on

remand. (Appx. 3). SouthTrust filed a Motion for Review of the trial court’s

order on remand, pursuant to Rule 9.400(c). (Appx. 4). The Fifth District

granted SouthTrust’s Motion for Review and remanded the case back to the

trial court a second time to determine the amount of appellate fees to be

awarded to SouthTrust for Appeal No. 5D04-3052. (Appx. to Pet. Brief).



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      Delta’s Petition is based on several factual misrepresentations of the

record, which should be clarified.

A.    SouthTrust’s Motion for Appellate Attorneys’ Fees For Appeal
      No. D04-3052 Was Granted By the Fifth District

      Delta’s assertion that the trial court on remand “could find no basis for

awarding appellate sanctions because SouthTrust’s [§]57.105 motion was

denied by the District Court and there was no disagreement that a

substantive basis for attorney’s fees did not exist” is simply false. (Pet. Brief,

p. 6). The Fifth District on August 15, 2006 granted SouthTrust’s motion

for appellate attorneys’ fees pursuant to Florida Statute § 57.105, and

remanded the case to the trial court to determine the amount. (Appx. 2). The

August 15, 2006 order shows that, contrary to Delta’s assertion, the Fifth

District, by granting the motion, found that a basis for attorneys’ fees did

exist. (Appx. 2).

B.    SouthTrust’s Award of Appellate Attorneys’ Fees Was Not Issued
      Sua Sponte, But in Response To SouthTrust’s Motion for
      Appellate Attorneys’ Fees

      The December 7, 2007 Order being appealed does not award

attorneys’ fees sua sponte. (See Pet. Brief, p. 5-6). Attorneys’ fees for this

appeal were awarded to SouthTrust in the Fifth District’s August 15, 2006

Order granting SouthTrust’s motion for appellate attorneys’ fees. (Appx. 2).

The August 15, 2006 order expressly states that it is granting SouthTrust’s

                                        3
motion for appellate fees. Therefore, the fees were not awarded sua sponte,

as Delta asserts. Delta is familiar with the August 15, 2006 order, as its

counsel spent a portion of the September 19, 2007 evidentiary hearing in the

trial court attacking the sufficiency of SouthTrust’s motion for appellate

attorneys’ fees as the basis for the award.

C.    The Fee Award Was Based on This Appeal, Not on Events in the
      Trial Court or in a Separate Appeal

      Delta incorrectly argues that the Fifth District relied on a motion filed

in the trial court in granting SouthTrust’s Motion for Review and that the

motion was based on events before the trial court. (Pet. Brief, p. 1, 4, 5). The

December 7, 2007 Order was based on SouthTrust’s Motion for Review

filed with the Fifth District. (Appx. 4). The August 15, 2006 order initially

awarding appellate attorneys’ fees to SouthTrust was based on a motion for

fees filed on April 15, 2005 in the Fifth District during the appeal of Case

No. 5D04-3052. These orders were not based on any motions filed in the

trial court. The trial court had assessed fees against Delta prior to the appeal

in this case, and those fees were affirmed by the Fifth District in a separate

appeal, No. 3177, Delta Fire Sprinklers, Inc. v. SouthTrust Bank, N.A., 940

So. 2d 1164 (Fla. 5th DCA 2006). (Appx. to Pet. Brief). SouthTrust is not

seeking fees from the appellate court for litigation in the trial court. The




                                       4
assertion that the Order being appealed was based on a motion in the trial

court is incorrect.

      Delta also incorrectly asserts that the Order being appealed was based

on a decision in a separate appeal. (Pet. Brief, p. 1, 4, 5). The Order granting

SouthTrust’s Motion for Review points out that another panel of the Fifth

District had reviewed the underlying claim in a separate appeal. (Appx. to

Pet. Brief, pp. 1-2). In that appeal, No. 5D05-3177, Delta appealed fees

assessed by the trial court for litigation in Circuit Court of the same

underlying claim that forms the basis of this appeal. The Fifth District did

not base its decision to award fees in this appeal on the fact they were

granted in another appeal affirming trial court fees.        The Fifth District

simply pointed out that a second appellate panel had found Delta’s

underlying claim sufficiently without merit to affirm an award of fees by the

trial court for litigating the claim in the lower court. (Appx. to Pet. Brief, p.

3).

      Delta is once again using the legal process to re-argue the merits of

the underlying claim. Delta has unsuccessfully argued the merits in trial and

appellate courts, both of which awarded fees to SouthTrust.           The Fifth

District awarded appellate attorneys’ fees for Appeal No. 5D04-3052

approximately 19 months ago and the parties have yet to complete the



                                       5
evidentiary hearing to determine the amount of fees to be awarded to

SouthTrust.

                       SUMMARY OF ARGUMENT

      The Order being appealed granting SouthTrust’s Motion for Review

and remanding the case for a second time to the trial court to determine the

amount of attorneys’ fees to be assessed does not conflict with this Court’s

opinion in Boca Burger, Inc. v. Forum, 912 So. 2d 561 (Fla. 2005). The

facts of Boca Burger are distinguishable from the instant appeal. This Court

held in Boca Burger that an appellate court should not award fees for events

that occurred in the trial court, particularly when the trial court refused to

award sanctions for that same conduct. Id. at 574.

      Delta argues that the Fifth District Order conflicts with Boca Burger

because its findings are not specific enough. (Pet. Brief, pp. 2-4, 8). The

December 7, 2007 Order concludes that the appeal is so lacking in merit, the

Fifth District was unable to determine the reasons Delta continued to pursue

this frivolous appeal. (Appx. to Pet. Brief, p. 3). The task of assessing a

specific amount of fees and that of articulating the reasons for those specific

findings has been relegated to the trial court on remand. (Appx. 1). The case

was remanded so the trial court can hold a hearing, receive evidence, and

hear testimony and arguments of counsel, in order to make those specific



                                        6
findings. The appellate court does not normally hold evidentiary hearings,

and is therefore, not in a position to make those specific findings as to how

fees should be assessed, what fees were reasonable, and whether fees should

be assessed against Delta’s counsel. See Sierra v. Sierra, 505 So. 2d 432, 434

(Fla. 1987).

      For these reasons, SouthTrust asks this Court to deny Delta’s Petition

for Jurisdiction.

                           LEGAL ARGUMENT

I.    JURISDICTION SHOULD BE DENIED BECAUSE THE FIFTH
      DISTRICT ORDER GRANTING SOUTHTRUST’S MOTION FOR
      REVIEW OF THE TRIAL COURT ORDER REFUSING TO
      DETERMINE THE AMOUNT OF APPELLATE ATTORNEYS’
      FEES TO AWARD SOUTHTRUST ON REMAND DOES NOT
      CONFLICT WITH THE SUPREME COURTS DECISION IN BOCA
      BURGER, INC. v. FORUM, AND THEREFORE, THIS COURT
      HAS NO BASIS TO INVOKE DISCRETIONARY JURISDICTION.

      Delta has argued repeatedly without success that the Fifth District’s

fee award was contrary to Boca Burger v. Forum, 912 So. 2d 84 (Fla. 2005).

Delta argues that the Fifth District failed to make specific findings regarding

the granting of fees, including the determination of the percentage of the

award that should be assessed against Delta’s counsel, as set forth in Florida

Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145, 1151-52 (Fla.

1985). (Pet. Brief, pp. 2-6, 8). However, Delta fails to acknowledge that the

task of articulating specific findings can be delegated to the trial court on

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remand. It is common practice in Florida for appellate courts to award

attorneys’ fees and remand the case to the trial court to determine the

amount of fees, whether fees should be assessed against opposing counsel,

and other specific findings. The receiving of testimony and record evidence

is usually left to the trial court, since appellate courts normally do not hold

evidentiary hearings. Sierra v. Sierra, 505 So. 2d 432, 434 (Fla. 1987).

      Boca Burger does not provide a basis for overturning the Fifth District

Order granting SouthTrust’s Motion for Review and requiring the trial court

to determine the amount of fees on remand. Boca Burger is distinguishable

in that it involved an appellate court awarding fees for events that occurred

in the trial court. 912 So. 2d at 574. The appellate court was not authorized

to award sanctions for conduct that occurred in the trial court, particularly

where the trial court did not award sanctions for the same conduct. Id.

      In this appeal, the Fifth District awarded appellate attorneys’ fees for

actions in the appellate court, and only the trial court awarded sanctions for

litigating the same frivolous claim in the lower court. Therefore, Boca

Burger is in applicable to this appeal, and does not conflict with the

attorneys’ fees orders in this appeal.

      Delta asserts that the Fifth District was “unaware of the circumstances

of Delta’s appeal.” (Pet. Brief, p. 1). What the appellate court actually stated



                                         8
was that it was “unaware of the circumstances related to Delta’s decision to

pursue its meritless appeal . . .” (Appx. to Pet. Brief, p. 1, 3). The language

could be construed to mean that the appeal was so lacking in merit that the

court could not offer any explanation as to why Delta may have continued to

pursue the merits of the appeal in the face of court rulings to the contrary.

                               CONCLUSION

      Because there is no conflict between the December 7, 2007 Order

granting SouthTrust’s Motion for Review and this Court’s opinion in Boca

Burger, Inc. v. Forum, and because the facts of Boca Burger are not on point

with those in this appeal, Respondent SouthTrust respectfully asks this Court

to deny Delta’s Petition and to decline to exercise discretionary jurisdiction

over this appeal.

                    CERTIFICATE OF COMPLIANCE

      The undersigned counsel certifies that the font size of this

jurisdictional brief is Times New Roman 14, in compliance with Florida

Rule of Appellate Procedure 9.210(a)(2).




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                      CERTIFICATE OF SERVICE

      I HEREBY CERTIFY that a true and correct copy of the foregoing

has been furnished via U.S. mail to Rosemary H. Hayes, Esquire, Hayes &

Caraballo, P.L., 830 Lucerne Terrace (32801) P. O. Box 547248, Orlando,

FL 32854-7248 and William L. Grant, Attorney, Shutts & Bowen, LLP, 300

S. Orange Avenue, Suite 1000 P.O. Box 4956, Orlando, FL 32802-4956, on

this 28th day of March, 2008.



                                ______________________________
                                Alfred Truesdell, Esquire
                                Florida Bar No. 885363
                                J. Timothy Schulte, Esquire
                                Florida Bar No. 769169
                                ZIMMERMAN, KISER & SUTCLIFFE,
                                P.A.
                                315 E. Robinson St., Ste. 600
                                Orlando, FL 32801
                                (407) 425-7010
                                Attorneys for Respondent, Southtrust Bank,
                                N.A.




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