Monthly Archives: October 2012

CSK Obtains Reversal on Trial Order, Permitting Defendant’s Motion for Entitlement to Attorney’s Fees

Kristen Tajak of Cole, Scott & Kissane’s Appellate Group successfully obtained a reversal of the trial court’s order denying the Defendant’s motion for entitlement to attorney’s fees pursuant to a proposal for settlement in the matter of RTG Furnitre v. Franklin Coates and Lorie Coates.

On the 45th day before the trial start date, the Defendant served a proposal for settlement on the appellees, which they did not accept. Following a successful trial result in favor of the Defendant, and the trial court entered final judgment for the Defendant. The Defendant then filed a motion for entitlement to attorney’s fees and costs pursuant to the proposal for settlement that was never accepted.

The trial court denied the Defendant’s motion for entitlement to attorney’s fees, concluding that the 45th day before trial was one day short of being timely under rule 1.442 of the Florida Rules of Civil Procedure. Therefore, the trial court decided that the Defendant was not entitled to recover its attorney’s fees, although costs were awarded.

On appeal of the trial court’s denial of the Defendant’s motion for attorney’s fees, the Fourth District Court of Appeal held, in a 7-page opinion, that the plain and ordinary meaning of rule 1.442 is that the deadline for serving a proposal for settlement is the 45th day before the date set for trial; in other words, the 45 days includes the date of service of the proposal for settlement, but does not include the trial date. Because the Defendant’s proposal for settlement was served on the 45th day before the date set for trial, the proposal was timely under rule 1.442, and the Fourth District held that it was reversible error for the trial court to conclude otherwise. This is a significant ruling concerning the application and interpretation of rule 1.442 in that there are no other appellate court decisions addressing this issue.

CSK Attorneys Obtain Dismissal of Plaintiff Petition in Automobile Negligence Case

Trevor Hawes and Blake Cole of Cole, Scott & Kissane’s Jacksonville office obtained a Dismissal of Plaintiff Petition for Writ of Certiorari in the matter of Alida Benson v. Power Service Concepts, Inc. and James Miley.

Defendants argued in their Answer Brief, among other things, that the Fifth District Court of Appeal lacked jurisdiction as a result of Plaintiff’s untimely Petition. Defendants argued that Motions for Reconsideration and Motions for Rehearing of non-final orders are not authorized by the Florida Rules of Civil Procedure and, therefore, did not toll the thirty day time period for Plaintiff to file her Petition for Writ of Certiorari. Defendants emphasized that the time constraints for appealing a non-final order are strict and plainly stated in the applicable rules.

The Fifth District agreed and Plaintiff/Petitioner’s Petition was dismissed.

CSK Successfully Defends Employer in Discrimination Claim

Jessica Arbour of Cole, Scott & Kissane’s Miami office successfully tried an administrative case in the matter of Boffelli v. Kent Security Services, Inc.  The Claimant alleged he was discriminated against in violation of the Americans with Disabilities Act, believing he was terminated because of his medical condition and the needs to accommodate it.  Employer’s position is that he was terminated after falling asleep at his post multiple times, and that it had no knowledge of the Claimant’s medical condition at the time of his termination.

At the conclusion of the Claimant’s case before the Miami-Dade Office of Human Rights, Jessica moved for dismissal supported by her cross examination of the Claimant, in which she established the Claimant had no proof that he notified Kent Security of his disability nor that similarly-situated individuals were treated better than he was.  The motion was unanimously granted by the three member panel.

CSK Receives Defense Verdict in Whistle-blower Case

Edward S. Polk and Justin D. Siegwald of Cole, Scott & Kissane’s Miami office obtained a defense verdict in the matter of Hernandez v. Alexim Trading Corp.  The Plaintiff claimed that he was terminated in retaliation for reporting OSHA safety violations in the workplace.  The employer responded that there were no actual violations, and that the employee had been terminated for legitimate business reasons arising from his conduct on the job.  The jury deliberated only 36 minutes before returning a defense verdict.

CSK Obtains Summary Judgment in Dog Bite Case

Benjamin M. Esco and Giancarlo V. Nicolosi of Cole, Scott & Kissane’s Miami office obtained a summary judgment in this dog bite/premises liability case.

The Plaintiff filed suit against our clients for negligence alleging they owned, controlled, and possessed a Great Dane dog, which attacked the Plaintiff.  Our client was the owner of the home that was being rented out to the tenant/Co-Defendant, who owned the subject dog.  Defense counsel argued that our clients were not liable for alleged injuries as our clients were not the owners of the subject dog under Fla. Stat. §767.04 and did not have control or dominion over the subject dog.  In addition defense counsel argued that our clients did not have knowledge of the subject dog’s propensity for viciousness.  The court agreed and granted our motion for summary judgment.  Finally, as a result of timely filing a proposal for settlement, we are entitled to recovery of our attorney’s fees and costs.