Opinion
No. 2D21-1019
07-15-2022
Gail VALENTE, Appellant, v. Joseph RAISSI, Appellee.
Thomas John Dandar of Dandar Law Group, P.A., Tampa, for Appellant. Benjamin E. Hillard and Amy Cuykendall Jones of Castle Law Group, P.A., Largo, for Appellee.
Thomas John Dandar of Dandar Law Group, P.A., Tampa, for Appellant.
Benjamin E. Hillard and Amy Cuykendall Jones of Castle Law Group, P.A., Largo, for Appellee.
LUCAS, Judge.
For a decade, Gail Valente and Joseph Raissi have been in litigation over a condominium investment in West Virginia. In a prior opinion stemming from this litigation, we laid out the pertinent facts. See Raissi v. Valente (Raissi I ), 247 So. 3d 629 (Fla. 2d DCA 2018). We need not recount them again here because Ms. Valente's appeal only concerns the tail-end of this dispute: entitlement to attorney's fees following the bench trial on Mr. Raissi's negligence counterclaim. Unfortunately, although we would like to provide some measure of finality to these litigants, we are without jurisdiction to do so. We will briefly explain why.
In addition to Raissi I , two other appeals have been filed, and dismissed, in this case. See Raissi v. Valente , No. 2D20-1147 (Fla. 2d DCA Apr. 24, 2020); Raissi v. Valente , 279 So. 3d 701 (Fla. 2d DCA 2019).
Following remand from our decision in Raissi I , the presiding circuit judge, Judge Minkoff, convened a trial on Mr. Raissi's counterclaim. At the conclusion of the trial, Judge Minkoff ruled from the bench in favor of Ms. Valente. A final judgment was entered, and Mr. Raissi filed an appeal, which he later dismissed. Ms. Valente then sought recovery of her attorney's fees.
On March 17, 2020, following a hearing, Judge Minkoff entered an "Order Granting Entitlement to Attorney [sic] Fees and Costs and Order Setting Evidentiary Hearing on Attorney's Fees" (hereafter, the First Entitlement Order). The First Entitlement Order awarded costs to Ms. Valente and concluded that she was entitled to recover her attorney's fees on three separate bases: (1) because Ms. Valente had prevailed "on all issues in this lawsuit, including the claim for accounting against Raissi"; (2) because Mr. Raissi had improperly denied multiple requests for admissions Ms. Valente had served under Florida Rule of Civil Procedure 1.380(c) during the litigation; and (3) because
Mr. Raissi has not appealed the award of costs, only the imposition of attorney's fees.
Raissi and his counsel knew or should have known that the [c]ounterclaim when initially presented to the court, or at any time before trial, would not [be], and was not, supported by the material facts necessary to establish the claim, and would not [be], and was not, supported by the application of then-existing law to those material facts,
which, the court concluded, warranted an award of attorney's fees under section 57.105, Florida Statutes (2020). The First Entitlement Order did not award any attorney's fees but scheduled an evidentiary hearing to determine an appropriate amount.
On March 31, 2020, Mr. Raissi filed a motion for reconsideration of the First Entitlement Order. Judge Minkoff denied that motion. Mr. Raissi moved to disqualify Judge Minkoff and filed a second motion for reconsideration. Due to restructuring within the court's civil divisions and Judge Minkoff's retirement from judicial service, the second motion for reconsideration was assigned to a new judge, Senior Circuit Judge Baird.
The court convened a hearing on the second motion, and on December 9, 2020, Judge Baird entered an "Order Granting in Part and Denying in Part Defendant Joseph Raissi's Motion for Reconsideration of the Order Granting Entitlement to Attorney's Fee [sic], Sanctions, and Costs" (hereafter, the Second Entitlement Order). The Second Entitlement Order concluded that Ms. Valente was not entitled to recover her attorney's fees for prevailing on her accounting claim (the first basis under the First Entitlement Order) because "there was never a final judgment entered for an accounting by the previous trial judge and no actual accounting was ever ordered, performed or submitted to support the claim." The court rejected Mr. Raissi's argument to reconsider Ms. Valente's entitlement to attorney's fees under the prior order's third basis, section 57.105. The Second Entitlement Order did not mention the First Entitlement Order's second basis of entitlement to fees under rule 1.380(c), from which we presume the court intended to leave that basis undisturbed as well.
Mr. Raissi then filed yet a third motion for reconsideration. By this time, the case had been reassigned again to Judge Williams. On February 18, 2021, the court convened a hearing on the third motion for reconsideration of the First Entitlement Order. At the conclusion of the hearing, Judge Williams ruled that she would not disturb the findings in the Second Entitlement Order about the accounting claim, but that, in her view, the First Entitlement Order was not "detailed and factually specific as to bad faith conduct and factual findings relating to bad faith." On March 8, 2021, the court entered its Order Granting Defendant's Motion for Reconsideration of the Sanctions Portion of the Fees Order (hereafter, the Third Entitlement Order). The Third Entitlement Order stated that any portion of the First Entitlement Order that had granted entitlement to fees under section 57.105 as against either Mr. Raissi or his counsel "is hereby stricken." The Third Entitlement Order did not address the First Entitlement Order's second basis for awarding attorney's fees—the failure to admit requests for admission under rule 1.380(c) —but instead stated that Ms. Valente "may proceed to an evidentiary hearing if Plaintiff has any remaining basis for fees."
Ms. Valente then filed this appeal.
The parties urge us to definitively resolve whether Ms. Valente is entitled to recover her attorney's fees under section 57.105 (and, conversely, whether that entitlement was appropriately "stricken" as one of the successor judges purported to do). Although we are troubled by the seriatim manner in which a predecessor trial judge's fee entitlement order was addressed, and though we may have reservations about the Third Entitlement Order's legal conclusions, we cannot give Ms. Valente any relief in this appeal. To be sure, the Third Entitlement Order significantly truncated the First and Second Entitlement Orders' scope, but the Third Entitlement Order leaves in place Ms. Valente's entitlement to recover attorney's fees under rule 1.380(c) in an amount that has yet to be determined. Because no amount of fees has been ascertained or awarded, we are without jurisdiction to provide appellate relief. See Parrish v. RL Regi Fin., LLC , 194 So. 3d 571, 571-72 (Fla. 2d DCA 2016) ("An order determining an entitlement to attorney's fees and costs without setting the amount is a nonfinal, nonappealable order." (citing Greenberg v. Greenberg, 129 So. 3d 470, 471 (Fla. 2d DCA 2014) ; Rocka Fuerta Constr., Inc. v. Southwick, Inc., 103 So. 3d 1022, 1025–26 (Fla. 5th DCA 2012) )); see also Perini v. Perini , 322 So. 3d 124, 125 (Fla. 4th DCA 2021) ("An order for attorney's fees that determines the entitlement but not the amount is unripe for appellate review." (citing Weimer v. Weimer , 677 So. 2d 86, 88 (Fla. 4th DCA 1996) )). The circuit court may yet revisit the entitlement decisions it had previously reconsidered. But until such time as the court either awards or declines to award an amount of attorney's fees, we cannot pass upon the merits of this case.
We are also troubled by the tone of Mr. Raissi's briefing—both in his answer brief and amended answer brief—in which his counsel included personal invective against opposing counsel and Judge Minkoff. We would take this opportunity to remind all lawyers who file briefs with our court that their written arguments are supposed to "enlighten as to issues and pertinent facts," not provide a forum for venting. See Fumigation Dep't v. Pearson , 547 So. 2d 352, 352-53 (Fla. 1st DCA 1989) ; see also Oath of Admission to the Florida Bar , The Florida Bar, https://www.floridabar.org/prof/regulating-professionalism/oathof-admission/ (last visited February 11, 2022) ("To opposing parties and their counsel, I pledge fairness, integrity, and civility, not only in court, but also in all written and oral communications.").
Cf. Tingle v. Dade Cnty. Bd. of Cnty. Commr's , 245 So. 2d 76, 77-78 (Fla. 1971) (distinguishing between successor judges' review of previously entered interlocutory orders versus final orders and judgments and observing that a " 'code' of restraint" should permeate all such reviews out of "considerations of comity and courtesy"). Comity aside, the Third Entitlement Order's conclusions about the sufficiency of the First Entitlement Order's findings seem unwarranted given the record before us. They were certainly premature. The case law imposing a duty to render specific findings for an award under section 57.105(1) concerns orders that award fees, not simply determine entitlement. See Soto v. Carrollwood Vill. Phase III Homeowners Ass'n , 326 So. 3d 1181, 1185 (Fla. 2d DCA 2021) ("A fee award as a sanction under section 57.105(1) requires the circuit court to make detailed findings on the basis of its award."); Jean-Pierre v. Glaberman , 192 So. 3d 613, 613 (Fla. 4th DCA 2016) (reversing fee order under section 57.105(1) when the trial court "failed to make detailed findings in its order regarding the basis for the fees sanction"); see also Austin & Laurato, P.A. v. State Farm Fla. Ins. Co. , 229 So. 3d 911, 913 (Fla. 5th DCA 2017) ("An order awarding attorney's fees as a sanction under section 57.105(1) 'must include findings by the trial court to support the award.' " (quoting Goldberg v. Watts , 864 So. 2d 59, 60 (Fla. 2d DCA 2003) )).
Appeal dismissed.
BLACK and ATKINSON, JJ., Concur.