Ultrasmith Racing Reply Brief (Fla. 4th DCA)

8/10/2019 Ultrasmith Racing Reply Brief (Fla. 4th DCA)

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IN THE DISTRICT COURT OF APPEAL OF THE STATE

OF FLORIDA

FOURTH DISTRICT IN AND FOR PALM BEACH COUNTY, FLORIDA

CASE NO. 4D10-2674LOWER CASE NO. 502007CA001349XXMB

BYRON HENN,

Appellant,

v.

ULTRASMITH RACING, L.L.C., etc.

Appellee.

REPLY BRIEF OF BYRON HENN

DANIEL S. WEINGER, ESQ.

CONRAD & SCHERER, LLP

Attorneys for Appellant

P. O. Box 14723

Fort Lauderdale, FL 33302

Tel: (954) 462-5500Fax: (954) 463-9244


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Table of Contents

Table of Contents ............................................................................................. i

Table of Authorities ........................................................................................ii

Points on Appeal ............................................................................................ iv

Points on Appeal ............................................................................................ iv

Preface ............................................................................................................. v

I. Introduction and Response to Ultrasmiths Statement of Case and Facts ... 1

Argument ........................................................................................................ 2

II. The Trial Court Erred by Denying Defendants/Appellants

Motion for Prevailing Party Attorneys Fees When the Plaintiff

Voluntarily Dismissed its Case and Failed to Seek a Timely ReviewChallenging the Validity of Said Voluntary Dismissal ............................... 2

III. Even Under the Trial Courts Revised Order, the Court Erred by

Denying Appellants Motion for Prevailing Party Attorneys Fees

When Dismissal was Involuntarily Entered as a Sanction .......................... 7

Conclusion .................................................................................................... 13

Certificate of Service .................................................................................... 15

Certificate of Type Size and Style ................................................................ 15


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ii

Table of Authorities

Cases

Alhambra Homeowners Association, Inc. v. Asad,

943 So. 2d 316 (Fla. 4th DCA 2006) ................................................................ 1, 7Anthony v. Marion County General Hospital,

617 F.2d 1164 (5th Cir. 1980)............................................................................. 10

Caufield v. Cantele,

837 So. 2d 371 (Fla. 2002) .................................................................................. 12

DeLuca v. Harriman,

402 So. 2d 1205(Fla. 2d DCA 1981) .................................................................. 11

Frazier v. Dreyfuss,

14 So. 3d 1183 (Fla. 4th DCA 2009) ................................................................ 1, 7Gordon v. Warren Heating & Air Conditioning, Inc.,

340 So.2d 1234 (Fla. 4th DCA 1976) ................................................................. 12

Grine v. Coombs,

214 F.R.D. 312 (W.D. Pa. 2003)......................................................................... 10

Heston v. Vitale,

432 So. 2d 744 (Fla. 4th DCA 1983) .................................................................... 5

Link v. Wabash R.R. Co.

370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962) ............................................. 9McArthur Dairy, Inc. v. Guillen,

470 So. 2d 747 (Fla. 3d DCA 1985) ............................................................. 11, 13

McCullough v. Lynaugh,

835 F.2d 1126 (5th Cir. 1988)............................................................................. 10

Mitchell v. Beach Club of Hallandale Condominium Association, Inc.,

17 So. 3d 1265 (Fla. 4th DCA 2009) .................................................................... 8

Moritz v. Hoyt Enter., Inc.,

604 So. 2d 807 (Fla. 1992) .................................................................................. 11Nasious v. Two Unknown B.I.C.E. Agents,

492 F.3d 1158 (10th Cir. 2007)........................................................................... 10

Olsen v. Mapes,

333 F.3d 1199 (10th Cir. 2003)....................................................................... 9, 10


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Pegasus Companies, Inc. v. RREEF America,

995 So. 2d 1180 (Fla. 4th DCA 2008) .................................................................. 5

Pharmafax, Inc. v. Segal,

654 So. 2d 1244 (Fla. 3d DCA 1995) ................................................................... 5

Randle Eastern Ambulance Serv. v. Vasta,360 So. 2d 68 (Fla. 1978) .................................................................................. 5, 6

Roscioli Yachting Center, Inc. v. Lexington Ins., Co.,

601 So. 2d 1246 (Fla. 4th DCA 1992) .......................................................... 10, 11

Shaw v. Schlusemeyer,

683 So. 2d 1187 (Fla. 5th DCA 1996) .................................................................. 8

Sholkoff v. Boca Raton Community Hospital, Inc.,

693 So. 2d 1114 (Fla. 4th DCA 1997) ................................................................ 12

Sun First National Bank of Delray Beach v. Green, Crane, Concrete Services,Inc.,

371 So. 2d 492 (Fla. 4th DCA 1979) .................................................................... 6

Statutes

Florida Statutes 57.105 ......................................................................................... 13

Rules

Fed. R. Civ. P. 41 ................................................................................................ 9, 10

Fla. R. Civ. P. 1.090 .................................................................................................. 9

Fla. R. Civ. P. 1.420 .................................................................................. 4, 8, 11, 13

Fla. R. Civ. P. 1.530 .............................................................................................. 2, 4


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Points on Appeal

THE TRIAL COURT ERRED BY DENYING

DEFENDANTS/APPELLANTS MOTION FOR

PREVAILING PARTY ATTORNEYS FEES WHEN

THE PLAINTIFF VOLUNTARILY DISMISSED ITS

CASE AND FAILED TO SEEK A TIMELY REVIEW

CHALLENGING THE VALIDITY OF SAID

VOLUNTARY DISMISSAL

EVEN UNDER THE TRIAL COURTS REVISED

ORDER THE COURT ERRED BY DENYING

APPELLANTS MOTION FOR PREVAILING PARTY

ATTORNEYS FEES WHEN DISMISSAL WAS

INVOLUNTARILY ENTERED AS A SANCTION


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Preface

This is the Reply Brief of BYRON HENN, Defendant below.

BYRON HENN is referred to as Appellant, Defendant, or his proper name.

ULTRASMITH RACING, LLC, is referred to as Appellee, Plaintiff, or

Ultrasmith.

The following symbols will be used:

R. ___ references are to the Record on Appeal.

I.B. ___ references are to Appellants Initial Brief

A.B. ___ references are to Appellees Answer Brief

Unless otherwise indicated, all emphasis is supplied by the writer.


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I. Introduction and Response to Ultrasmiths Statement of Case and

Facts

As a threshold matter, the fact section of Ultrasmiths Answer Brief is a

mishmash of improper argument and factual allegations that are irrelevant to the

issues in this appeal. Mr. Henn disputes the recitation of Ultrasmiths factual

allegations and could just as easily present his own version casting the record

evidence in a completely different light. Such posturing, however, serves no

purpose in determining prevailing party status when a case is dismissed. In fact,

this is precisely the type of fact based jurisprudence that this Court sought to avoid

by developing the bright-line test first set forth in Alhambra Homeowners

Association, Inc. v. Asad, 943 So. 2d 316 (Fla. 4th DCA 2006), and later

reaffirmed in Frazier v. Dreyfuss, 14 So. 3d 1183 (Fla. 4th DCA 2009).

Ultrasmiths entire argument is nothing more than a transparent attempt to mislead

this Court into finding that one can only be the prevailing party for attorneys fees

purposes when they can claim a victory on the merits. This is simply not the law

in Florida.


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Argument

II. THE TRIAL COURT ERRED BY DENYING

DEFENDANTS/APPELLANTS MOTION FOR

PREVAILING PARTY ATTORNEYS FEES WHEN

THE PLAINTIFF VOLUNTARILY DISMISSED ITS

CASE AND FAILED TO SEEK A TIMELY REVIEW

CHALLENGING THE VALIDITY OF SAID

VOLUNTARY DISMISSAL

A. The Trial Court Erred by Making

Substantive Changes to its October 22, 2009, Final

Order Several Months After the Expiration of

Ultrasmiths Time for Seeking Rehearing

Ultrasmiths Motion to Strike Defendants Motion for Attorneys Fees and

for Clarification was a thinly veiled attempt to raise issues that were untimely and

which could only be raised by either a direct appeal or a motion under Rule 1.530.

As if to disprove its own claim, Ultrasmith opens the argument section of its brief

with a dissertation on the issue of when a representative can or cannot act on behalf

of a corporation; an issue that is wholly irrelevant unless one were challenging the

propriety of the underlying order. Ultrasmith essentially argues that the trial court

could not have accepted an oral voluntary dismissal by the sole shareholder of a

closely held corporation because it would have been error to do so. Whether by

error or not, this is exactly what the trial court did and Ultrasmith never followed

through with an appeal of that decision. Moreover, as discussed infra, Ultrasmiths

assertion of error in this regard is not supported by the applicable law in any event.


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The intent of the October 22 order is crystal clear. Although the trial court

never used the term voluntary dismissal, the express language of the order leads

to no other reasonable conclusion but that it, correctly or not, accepted an oral

voluntary dismissal by Ultrasmith. The order in its entirety states:

This case is dismissed without prejudice. Barry Smith, who appeared

on behalf of Ultrasmith as its principal and managing agent, orally

agreed to dismissal. Barry Smith tried to submit a written dismissal

on behalf of Ultrasmith (a copy of which is attached); however, he

may not do so as Florida law requires corporations to file motions and

their court filings through counsel. The Court reserves jurisdiction to

entertain any motions for attorneys fees or costs.

(R. 500.) The clear import is that, because Barry Smith cannot submit a filing to

accomplish a voluntary dismissal, the court was creating an avenue to accomplish

his goal by proactively entering an order of voluntary dismissal pursuant to his oral

request. Critically, the court sought fit to attach a copy of the attempted written

dismissal to the order, which would be a meaningless act if the order were intended

as a sanction. Interestingly, and perhaps tellingly, Ultrasmith quotes the entire

order except for that portion indicating that a copy of Smiths written dismissal is

attached. (A.B. p. 8.) The order reads quite differently without this critical

inclusion.

Additionally, there is nothing in the order to indicate that the Court was

sanctioning Ultrasmith. The court does not even mention or reference in any way

its previous instruction that the case could be dismissed if Ultrasmith failed to


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attend the hearing represented by counsel. The court simply acknowledges that a

corporation cannot file motions and other court filings without counsel. The court

makes no indication, however, that it believes it cannot take action on its own to

effectuate a dismissal based upon the oral request of the corporate representative

and sole shareholder of Ultrasmith. Drawing a distinction between when a party

may submit a written dismissal and when the court may do so in an order pursuant

to an oral request is supported by the express language of Rule 1.420(a)(2), which

states that [e]xcept as provided in subdivision (a)(1) of this rule, an action shall

not be dismissed at a party's instance except on order of the court. . .

The question of whether the court was arguably mistaken in accepting Barry

Smiths oral request for a voluntary dismissal became irrelevant when Ultrasmith

failed to file a timely challenge under Rule 1.530 and abandoned its appeal. For

purposes of Mr. Henns Motion for Attorneys Fees, the case was voluntarily

dismissed. The only reasonable conclusion to be drawn from the courts order is

that the case was voluntarily dismissed at Ultrasmiths request.

Ultrasmith correctly concedes that Rule 1.540 does not apply to this case

because it was not asking the court to correct a mistake or clerical error. (A.B. p.

12.) With this concession in mind, Ultrasmith can offer no procedural basis for the

trial courts ability to revisit the content of the October 22, 2009, order.


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Finally, it should be noted that Ultrasmiths claim that Barry Smith was

without power to request a voluntary dismissal is incorrect in any event. Although

generally, a corporation may only appear in court and submit filings through

counsel, a corporate representative is permitted, without counsel, to take actions on

behalf of the company that relate to submitting to the courts jurisdiction. See

Pharmafax, Inc. v. Segal, 654 So. 2d 1244, 1246 (Fla. 3d DCA 1995) (recognizing

that submitting to the trial court's jurisdiction is a decision that may be made by

the proper corporate agent, without the formality of an attorney's representation,

since it does not amount to a court appearance, but, rather, is a decision that can

be made by any party, including a corporate party). See also Pegasus Companies,

Inc. v. RREEF America, 995 So. 2d 1180 (Fla. 4th DCA 2008) (affirming on the

authority of Pharmafax). Because announcing a voluntary dismissal is nothing

more than a method for a party to revoke its submission to the jurisdiction of the

court, it necessarily follows that a corporate representative has the power to

announce its intention to voluntarily dismiss its case without the assistance of an

attorney. See Randle Eastern Ambulance Serv. v. Vasta, 360 So. 2d 68, 68 (Fla.

1978) (recognizing that the effect of a voluntary dismissal is equivalent in all

respects to a deprivation of jurisdiction);Heston v. Vitale, 432 So. 2d 744, 745

(Fla. 4th DCA 1983) (acknowledging the well-established proposition that a


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voluntary dismissal is a mechanism that acts to relinquish jurisdiction to such an

extent that a court is not even permitted to reinstate a cause of action).

In fact, this Court has held that even when a voluntary dismissal is a nullity,

a trial court is still without authority to reinstate the claims. See Sun First National

Bank of Delray Beach v. Green, Crane, Concrete Services, Inc., 371 So. 2d 492,

492 (Fla. 4th DCA 1979) (finding that based upon the strong language in Vasta, a

trial court is without jurisdiction to reinstate a case even when the voluntary

dismissal itself was improper).

Based upon the foregoing, as well as the more extensive arguments

contained in Appellants Initial Brief, the trial court committed reversible error in

failing to award prevailing party attorneys fees to Appellant after Appellee

voluntarily dismissed its case.

B. Because the Final Order in this Case was

Based Upon a Voluntary Dismissal, the Trial

Court Committed Reversible Error When it Denied

Appellants Motion for Prevailing Party Attorneys

Fees

Appellee does not challenge the proposition that Mr. Henn is entitled to

prevailing party attorneys fees if the trial courts October 22, 2009, order werea

voluntary dismissal. Appellant relies on the argument in the Initial Brief as to this

issue, including this Courts adoption of a bright-line test in Alhambra


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Homeowners Association, Inc. v. Asad, 943 So. 2d 316 (Fla. 4th DCA 2006), as

well as the authorities cited therein.

Based upon the foregoing, as well as the more extensive arguments

contained in Appellants Initial Brief, the trial court committed reversible error in

failing to award prevailing party attorneys fees to Appellant after Appellee

voluntarily dismissed its case.

III. EVEN UNDER THE TRIAL COURTS REVISED

ORDER THE COURT ERRED BY DENYING

APPELLANTS MOTION FOR PREVAILING PARTY

ATTORNEYS FEES WHEN DISMISSAL WAS

INVOLUNTARILY ENTERED AS A SANCTION

Even if the trial court was correct in treating the October 22, 2009, final

order as an involuntary dismissal as a sanction against Ultrasmith for ignoring the

courts previous orders to appear with counsel, the court still erred by failing to

award prevailing party attorneys fees to Mr. Henn. For the most part, Appellant

relies upon the argument in his Initial Brief, and specifically the discussion of this

Courts decision in Frazier v. Dreyfuss, 14 So. 3d 1183 (Fla. 4th DCA 2009),

which applied the bright-line test established in Alhambra Homeowners

Association, Inc. v. Asad, 943 So. 2d 316 (Fla. 4th DCA 2006), to an involuntary

dismissal.1

1Appellant also relies upon the argument in his Initial Brief that the opinions in

Mitchell v. Beach Club of Hallandale Condominium Association, Inc., 17 So. 3d


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Ultrasmith attempts to distinguishFrazierby making the spurious argument,

without any supporting authority, that a sua sponte dismissal as a sanction for

failure to comply with a court order is not an involuntary dismissal under Rule

1.420(b) because it was not the result of a motion by Mr. Henn. This argument

defies logic and begs the question: if a sua sponte dismissal as a sanction for

failure to comply with a court order is not an involuntary dismissal under Rule

1.420, which Rule of Procedure authorizes a court to everenter such a dismissal?

Rule 1.420 is titled Dismissal of Actions. Rule 1.420(b) is titled

Involuntary Dismissal. The remainder of this subsection does not purport to be a

definition of any and all involuntary dismissals, but merely sets parameters for

certain situations. Nowhere does the Rule state that a court may not enter an

involuntary dismissal on its own motion. Ultrasmith takes the myopic approach of

focusing on the introductory language of the rule that [a]ny party may move for

dismissal of an action or of any claim against that party for failure of an adverse

party to comply with these rules or any order of court. Notice of hearing on the

motion shall be served as required under rule 1.090(d). The clear import of this

language is to ensure that when a party moves for an involuntary dismissal, they

comply with the time for service requirements of Rule 1.090(d) so that the non-

1265 (Fla. 4th DCA 2009), and Shaw v. Schlusemeyer, 683 So. 2d 1187 (Fla. 5th

DCA 1996), are factually inapplicable.


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moving party is given proper notice. Notice that its case might be dismissed if it

did not obtain counsel was provided to Ultrasmith by the court in its September 15,

2009, order setting the status conference. (R. 496-97.) A second notice was

provided after Ultrasmith failed to appear at the subsequent status conference on

October 15, 2009. (R. 498.) Moreover, the issue of notice has never even been

challenged.

Without specifically stating as much, Ultrasmith is claiming that a court is

prohibited from entering a sua sponte involuntary dismissal under the rule by

negative implication. Although the undersigned has not found any Florida caselaw

on point, federal jurisprudence is brimming with opinions rejecting this same

contention under the corresponding Federal Rule of Civil Procedure. Rule 41 of

the federal rules provides:

(b) Involuntary Dismissal; Effect. If the plaintiff fails to prosecute

or to comply with these rules or a court order, a defendant may move

to dismiss the action or any claim against it.

The federal courts have consistently held that sua sponteorders of dismissal

for failure to comply with the rules or a court order are involuntary dismissals

under Rule 41. See Olsen v. Mapes, 333 F.3d 1199, 1204 n.3 (10th Cir. 2003)

(citingLink v. Wabash R.R. Co.,370 U.S. 626, 630-31, 82 S.Ct. 1386, 8 L.Ed.2d

734 (1962), for the proposition that [a]lthough the language of Rule 41(b) requires

that the defendant file a motion to dismiss, the Rule has long been interpreted to


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permit courts to dismiss actions sua sponte for a plaintiff's failure to prosecute or

comply with the rules of civil procedure or court's orders); Nasious v. Two

Unknown B.I.C.E. Agents, 492 F.3d 1158, 1161 n.2 (10th Cir. 2007) (citing Olsen);

McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988) (holding that under

Rule 41(b), [a] district court may dismiss an action for failure of a plaintiff to

prosecute or to comply with any order of court. . . . The court possesses the

inherent authority to dismiss the action sua sponte, without motion by a

defendant); Anthony v. Marion County General Hospital, 617 F.2d 1164, 1167

(5th Cir. 1980) (recognizing that under Rule 41(b), a court may not only dismiss

for want of prosecution upon motion of a defendant, but it may also suasponte

dismiss an action whenever necessary to achieve the orderly and expeditious

disposition of cases); Grine v. Coombs, 214 F.R.D. 312, 361-62 (W.D. Pa. 2003)

(Courts have recognized that motions to dismiss an action under Rule 41 may be

raisedsua sponteby the court under its inherent case management powers).

For its part, Ultrasmith relies on nothing but the inapplicable decision in

Roscioli Yachting Center, Inc. v. Lexington Ins., Co., 601 So. 2d 1246 (Fla. 4th

DCA 1992). in support of the outlandish proposition that a court is without

authority to issue asua sponteinvoluntary dismissal as a sanction under the Rule.

That case, however, involved a voluntarydismissal that was never filed, was never

the basis of a written order, and was never consented to by the plaintiff in any way,


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shape, or form. Id. at 1247. Furthermore, inRoscioli, the Court found that there

was no colorable basis under the rule to dismiss the plaintiffs case either

voluntarily or involuntarily. Id. at 1248. As a result, this Court found that the trial

courts sua sponte dismissal was not sustainable on any grounds. Here, the

grounds for dismissal is not even in issue, as Ultrasmith never challenged the trial

courts authority to dismiss its case as a sanction. Moreover, nowhere inRoscioli

does the court say that a trial court never has authority under Rule 1.420(b) to enter

an involuntary dismissal,sua sponte, as a sanction.

Ultrasmith also cites to Moritz v. Hoyt Enter., Inc., 604 So. 2d 807 (Fla.

1992) for the proposition that a prevailing party is one who succeeds on the

significant issues in a case. However, that case involved a determination of

prevailing party after the entry of final judgment as opposed to after a dismissal

under Rule 1.420. As exhaustively discussed in the Initial Brief, no such

determination is made when a case comes to an end through dismissal.

The purpose of permitting a party to recover costs for taking a voluntary

dismissal under the rule is to insure that the plaintiff bear the cost of using a

voluntary dismissal as a tactical tool against a particular defendant. McArthur

Dairy, Inc. v. Guillen, 470 So. 2d 747, 748 (Fla. 3d DCA 1985) (quotingDeLuca v.

Harriman, 402 So. 2d 1205, 1207 (Fla. 2d DCA 1981)). See also Gordon v.

Warren Heating & Air Conditioning, Inc., 340 So.2d 1234, 1235-36 (Fla. 4th DCA


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1976) (opining that the rule has the obvious salutary effect of discouraging

repeated lawsuits of the same claim). It is not only illogical, but patently absurd,

for Ultrasmith to claim that a sua sponteinvoluntary dismissal as a sanction is not

likewise covered by this same principle. Carving out asua sponteexception would

lead to the unjust result of rewarding a party for flagrantly ignoring an order of the

court. In the instant case, the parties engaged in extensive litigation, going so far

as to complete discovery. If this Court accepts Ultrasmiths proposition,

Ultrasmith would reap a financial windfall by virtue of blatantly disregarding the

trial courts authority to such an extent that the court was compelled into striking

their pleadings before Henn even had a chance to file a motion under the Rule. If

this is the case, then the rules should specify as much if only to alert the trial courts

of the possibility that such sanctions will have the opposite effect of their

punitive intent.

It should be kept in mind that a plaintiff whose case is dismissed as a

sanction still has a method for recouping their costs/fees if they bring a new cause

of action and eventually prevail on the merits. See Caufield v. Cantele, 837 So. 2d

371, 375 (Fla. 2002) (recognizing that where a party has previously paid costs after

a dismissal if that party subsequently prevails in the same action, then such a

party may recover at least some of the costs previously paid); Sholkoff v. Boca

Raton Community Hospital, Inc., 693 So. 2d 1114, 1115 (Fla. 4th DCA 1997) (the


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Respectfully submitted,

By:

DANIEL S. WEINGER, ESQ.


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Certificate of Service

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

furnished via U.S. Mail to Les Stracher, Esq., Kurkin Forehand Brandes, LLP,

Attorneys for Appellee, 2900 Glades Circle, Suite 700, Weston, FL 33327-2271 on

this 22nd day of October, 2010.

Certificate of Type Size and Style

The undersigned counsel certifies that the type and style used in this brief is

14 point Times New Roman.

_________________________

CONRAD & SCHERER, LLP

Attorneys for Appellee

P. O. Box 14723

Fort Lauderdale, FL 33302

Phone: (954) 462-5500

By:__________________________

DANIEL S. WEINGER

Florida Bar No. 0172900

Documents

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