Peter Marocco v. Russell Brabec, Rose Marie Brabec, and Design & More, Inc., a Florida corporation ( 2019 )


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  •           FIRST DISTRICT COURT OF APPEAL
    STATE OF FLORIDA
    _____________________________
    No. 1D17-894
    _____________________________
    PETER MAROCCO,
    Appellant/Cross-Appellee,
    v.
    RUSSELL BRABEC, ROSE MARIE
    BRABEC, and DESIGN & MORE,
    INC., a Florida corporation,
    Appellees/Cross-Appellants.
    _____________________________
    On appeal from the Circuit Court for Leon County.
    Karen Gievers, Judge.
    April 5, 2019
    WETHERELL, J.
    This case arose out of a dispute over interior design and
    construction work performed by Appellees on Appellant Peter
    Marocco’s properties in 2008. The litigation in the trial court,
    which spanned more than eight years (and four circuit judges), was
    acrimonious and took many twists and turns, 1 most of which have
    1  For example, in case number 1D13-3314, we per curiam
    affirmed the dismissal of a suit filed by Marocco against Appellees’
    attorney related to the attorney’s representation of Appellees in
    no bearing on the issues in this appeal and cross-appeal. Thus,
    what follows is only a brief overview of the facts and the
    proceedings in the trial court.
    Factual and Procedural Background
    In July 2008, while in the process of remodeling his two
    properties in Tallahassee, Marocco went overseas for his
    employment. His neighbors, Russell and Rose Marie Brabec,
    offered to act as liaisons for Marocco with the contractors and
    laborers doing the remodeling work to ensure that the work was
    completed while Marocco was away. However, upon his return
    home, Marocco discovered that the Brabecs and their interior
    design firm, Design & More, Inc. (collectively, “Appellees”), had
    performed—and billed him for—significantly more work on the
    properties than he had authorized.
    Thereafter, Marocco sued Appellees for damages, claiming
    that they breached their fiduciary duty to him, exceeded the
    authorized scope of work, acted negligently, and slandered his title
    by recording fraudulent liens. The damages sought by Marocco
    included the wages he allegedly lost because the liens recorded by
    Appellees on his properties adversely affected his top secret
    security clearance, 2 which in turn, cost him lucrative jobs with
    government contractors working on classified projects.
    Appellees responded that all of the work they performed on
    Marocco’s properties was done with his consent, and they filed
    compulsory counterclaims for breach of contract, unjust
    enrichment, and lien foreclosure through which they sought to
    recover payment for their work. They also filed a permissive
    this case. See Marocco v. Dunlap, 
    2014 WL 2809093
    (Fla. 1st DCA
    June 23, 2014).
    2  Marocco had a SCI (sensitive compartmented information)
    top secret security clearance which, according to the security
    expert who testified at trial, is the highest security clearance level
    and gave Marocco access to classified information that was only
    accessible on a “need-to-know basis.”
    2
    counterclaim alleging that Marocco committed fraud during the
    litigation in order to get a prior judge off the case, 3 but the trial
    court severed that counterclaim from the remaining claims shortly
    before trial and dismissed it “with leave to amend with the
    requisite specificity.”
    After a week-long trial, the jury found in favor of Marocco on
    his claims for breach of fiduciary duty, negligence, and slander of
    title. The jury also found in favor of Marocco on Appellees’ lien
    foreclosure and breach of contract counterclaims, but the jury
    found in favor of Design & More on its counterclaim for unjust
    enrichment. The jury awarded Marocco a total of $511,625 on his
    claims and awarded Design & More $2,505.95 on its counterclaim.
    The award to Marocco was comprised of $1,125 in damages on
    his breach of fiduciary duty and negligence claims against Mr.
    Brabec and $510,500 in damages (for his lost wages) on his slander
    of title claim against Design & More. No damages were awarded
    against Mrs. Brabec.
    After the trial, and without a motion from Appellees, 4 the trial
    court entered what amounts to a sua sponte judgment
    notwithstanding the verdict (JNOV) on Marocco’s claim for lost
    wages based on the court’s determination that (1) the lost wages
    3  Specifically, Appellees alleged that Marocco conspired with
    a third-party to dupe them into hiring the prior judge’s wife, who
    was an artist, to consult with them on what turned out to be a
    sham project in order to give Marocco grounds for a motion to
    disqualify the prior judge.
    4  Appellees pointed out at oral argument that they did not
    have a chance to file a post-verdict motion because less than a
    week after the trial ended, the judge convened a hearing at which
    she announced her decision not to include the lost wages awarded
    by the jury in the final judgment. Although Marocco was given an
    opportunity to present argument (or, as the judge called it,
    “statements for the record”) after the judge announced her ruling,
    the post-trial procedure followed by the judge in this case was
    unorthodox, at best.
    3
    claim was barred by the sword and shield doctrine 5 and (2)
    Marocco’s lost wages were not proximately caused 6 by Appellees’
    wrongdoing and instead “were the direct result of his own decision
    . . . to keep litigating” after the case had conditionally settled. The
    trial court entered final judgment in accordance with the
    remainder of the jury verdict, awarding $1,125 to Marocco and
    $2,505.95 to Design & More. The trial court declined to award
    attorney’s fees to either party.
    This appeal and cross appeal followed.
    Analysis
    Marocco raises seven issues on appeal: (1) the trial court erred
    in sua sponte raising the sword and shield doctrine and striking
    the jury award for lost wages; (2) the trial court erred in striking
    the jury award for lost wages based on a lack of proximate cause;
    (3) the trial court erred in relying on section 713.28, Florida
    Statutes, to strike the lost wages award; (4) the trial court erred in
    denying attorney’s fees and costs to which a predecessor judge had
    previously awarded entitlement; (5) the trial court erred in
    denying attorney’s fees and costs to Marocco pursuant to section
    713.29, Florida Statutes; (6) the trial court erred in denying
    attorney’s fees and costs to Marocco pursuant to section 713.31,
    Florida Statutes; and (7) the trial court erred in denying Marocco’s
    5   “[T]he ‘sword and shield’ metaphor . . . embraces the rule
    ‘that a plaintiff may not seek affirmative relief in a civil action and
    then invoke the Fifth Amendment to avoid giving discovery in
    matters pertinent to the litigation.’” DeLisi v. Bankers Ins. Co.,
    
    436 So. 2d 1099
    , 1100 (Fla. 4th DCA 1983) (quoting City of St.
    Petersburg v. Houghton, 
    362 So. 2d 681
    , 685 (Fla. 2d DCA 1978)).
    6  Although the final judgment also described the lost wages
    as “far beyond the edge of the Palsgraf [v. Long Island Railroad
    Co., 
    162 N.E. 99
    (N.Y. 1928)] zone of reasonable foreseeability,” it
    is clear from the judgment as a whole that the lost wages were
    stricken based on the trial judge’s determination that they were
    not proximately caused by the liens, not because lost wages are not
    recoverable as a matter of law in this context.
    4
    motion for summary judgment on Appellees’ counterclaim for
    unjust enrichment. On cross-appeal, Appellees raise only one
    issue: the trial court erred in dismissing their fraud counterclaim.
    We affirm issues 4 and 7 without discussion, and we affirm
    issue 3 because, as Appellees correctly point out in their answer
    brief, the trial court did not rely on section 713.28, Florida
    Statutes, to strike the lost wages award. We dismiss the cross-
    appeal for lack of jurisdiction because an order dismissing a
    permissive counterclaim with leave to amend is a non-appealable
    nonfinal order, see Minty v. Meister Financialgroup, Inc., 
    97 So. 3d 926
    , 932 (Fla. 4th DCA 2012), and we reverse issues 1, 2, 5, and 6
    for the reasons that follow.
    On issue 1, we agree with Marocco that the trial court erred
    in raising the sword and shield doctrine sua sponte. The trial
    court’s role is to adjudicate the case by ruling on the issues raised
    by the parties, not to litigate the case by raising issues for the
    parties. See, e.g., Shore Mariner Condo. Ass’n v. Antonious, 
    722 So. 2d 247
    , 248 (Fla. 2d DCA 1998) (“Trial judges must studiously
    avoid the appearance of favoring one party in a lawsuit, and
    suggesting to counsel or a party how to proceed strategically
    constitutes a breach of this principle.”); Chastine v. Broome, 
    629 So. 2d 293
    , 295 (Fla. 4th DCA 1993) (“Obviously, the trial judge
    serves as the neutral arbiter in the proceedings and must not enter
    the fray by giving ‘tips’ to either side.”). Here, the record reflects
    that the sword and shield doctrine had not been raised in this case
    until the trial judge interjected it at a pretrial conference three
    weeks before the trial was set to begin. 7 We recognize that
    Appellees subsequently raised the doctrine in their motions for
    directed verdict at trial, but that was only after the trial judge
    foreshadowed her post-trial ruling at another pretrial conference
    by expressing her unsolicited opinion that there had been a “major
    violation of [the sword and shield doctrine] in this case.”
    7  At the pretrial conference where the trial judge first raised
    the sword and shield doctrine, she candidly acknowledged that “I
    don’t have any motion [on the issue] in front of me at this point.”
    5
    We also agree with Marocco that the trial court erred in
    applying the sword and shield doctrine in this case because,
    contrary to the finding in the final judgment that Marocco
    “block[ed] discovery” pertinent to his lost wages claim, the record
    shows that Marocco did not shield himself from the discovery of
    information relevant to that claim. Although early in the case
    Marocco did seek a protective order for all information related to
    his employment, no order was ever entered, and Appellees were
    ultimately able to depose Marocco and obtain relevant financial
    documents prior to trial. Although the disclosures and deposition
    occurred shortly before trial and well after the discovery cut-off,
    Appellees did not seek a continuance of the trial to obtain
    additional discovery or prepare for trial, and the trial court did not
    find that Appellees were prejudiced by the late discovery. 8 Under
    these circumstances, it was an abuse of discretion for the trial
    court to strike the lost wages claim post-trial. Cf. Binger v. King
    Pest Control, 
    401 So. 2d 1310
    , 1313-14 (Fla. 1981) (explaining that
    the trial court has discretion to exclude evidence that is not timely
    disclosed during discovery if the resulting prejudice to the
    opposing party cannot otherwise be cured); Village Inn Restaurant
    v. Aridi, 
    543 So. 2d 778
    , 782 (Fla. 1st DCA 1989) (explaining that
    sanctions short of dismissal may be imposed under the sword and
    shield doctrine).
    On issue 2, we agree with Marocco that the trial court erred
    in setting aside the jury’s determination that Marocco’s lost wages
    were proximately caused by Appellees’ actions. Evidence was
    presented at trial from which the jury could—and apparently did—
    find that Marocco’s lost wages were caused by the liens recorded
    by Appellees. Specifically, the jury heard evidence that Marocco
    informed Mr. Brabec several months before Appellees filed their
    liens that liens recorded in the public record would adversely
    impact his employment. 9 Moreover, the court’s post-trial ruling
    8   We have not overlooked the finding in the final judgment
    that the financial discovery provided by Marocco was essentially
    too little, too late, but the record simply does not support that
    characterization.
    9 Appellees argued that they could not have possibly known
    the extent of the impact because Marocco did not disclose the
    6
    was not based on a consideration of the evidence presented to the
    jury, but rather on the court’s opinion—informed by “the court’s
    knowledge of the rest of the picture”—that Marocco’s lost wages
    were solely caused by his failure to settle the case. If it is improper
    for a trial court to reweigh the evidence presented to the jury when
    ruling on a post-trial motion for JNOV—and it is, see New
    Jerusalem Church of God, Inc. v. Sneads Community Church, Inc.,
    
    147 So. 3d 25
    (Fla. 1st DCA 2013), it is equally, if not more,
    inappropriate for the court to grant a JNOV sua sponte based on
    information that was not presented to the jury.
    Based on the foregoing, we reverse the JNOV granted by the
    trial court with respect to Marocco’s lost wages and remand for
    entry of an amended final judgment in accordance with the jury
    verdict on that issue.
    On issue 5, we disagree with Marocco’s argument that he was
    entitled to an award of attorney’s fees under section 713.29,
    Florida Statutes, simply because he successfully defeated
    Appellees’ efforts to foreclose their liens. Section 713.29 provides
    for an award of attorney’s fees to the prevailing party in an action
    to enforce a lien, but “prevailing party” has been construed to mean
    the party who prevails on the “significant issues” in the entire
    litigation, not just the lien claim. See Trytek v. Gale Indus., Inc., 
    3 So. 3d 1194
    , 1202 (Fla. 2009); Prosperi v. Code, Inc., 
    626 So. 2d 1360
    , 1362-63 (Fla. 1993).
    Here, the trial court did not necessarily abuse its discretion in
    denying attorney’s fees to Marocco under the “significant issues”
    test because even though he successfully defended against
    Appellees’ lien foreclosure claim, the jury found in favor of Design
    nature of his work, but that is not the issue. Rather, the issue is
    whether, based on the evidence presented, it was foreseeable that
    Marocco would suffer some amount of lost wages based on the filing
    of the liens. In this context, foreseeability was a fact question for
    the jury. See McCain v. Fla. Power Corp., 
    593 So. 2d 500
    , 504 (Fla.
    1992) (explaining that “the question of foreseeability as it relates
    to proximate causation generally must be left to the fact-finder to
    resolve”).
    7
    & More on its counterclaim for unjust enrichment. See 
    Prosperi, 626 So. 2d at 1362
    (“[I]t was obviously not the intent of the
    legislature to award attorney’s fees to a defendant in a mechanics’
    lien foreclosure merely because he successfully defends against the
    impression of a lien yet is nevertheless found liable in damages, in
    the same case, for labor and/or materials furnished for his
    benefit.”) (quoting Emery v. Int’l Glass & Mfg., Inc., 
    249 So. 2d 496
    ,
    500 (Fla. 2d DCA 1971)). Nevertheless, because our disposition on
    issues 1 and 2 might impact the balancing required under the
    significant issues test, we reverse the denial of attorney’s fees
    under section 713.29 and remand for reconsideration in light of
    this opinion.
    On issue 6, we disagree with Marocco’s argument that he was
    entitled to an award of attorney’s fees under section 713.31,
    Florida Statutes, simply because the jury found that Appellees
    exaggerated the amount of their liens. Section 713.31 provides for
    an award of attorney’s fees to the party who prevails in an action
    to foreclose a fraudulent lien and it defines “fraudulent lien” to
    include liens in which the lienor has willfully exaggerated the
    amount of the lien. See § 713.31(2)(a), (2)(c), Fla. Stat. However,
    an award of prevailing party attorney’s fees under this statute is
    subject to the same “significant issues” test that governs an award
    of fees under section 713.29. See Newman v. Guerra, 
    208 So. 3d 314
    , 317-19 (Fla. 4th DCA 2017) (holding that the “significant
    issues” test adopted in Trytek and Prosperi also applies to motions
    seeking attorney’s fees under section 713.31). Accordingly,
    although the trial court did not necessarily abuse its discretion in
    determining that Marocco was not entitled to attorney’s fees under
    section 713.31, we reverse and remand for reconsideration in light
    of this opinion because our disposition on issues 1 and 2 might
    impact the balancing required under the significant issues test.
    Conclusion
    Based on the foregoing, we reverse the final judgment and
    remand for entry of an amended final judgment in accordance with
    the jury’s verdict in its entirety; reverse the orders denying
    Marocco’s motions for attorney’s fees and remand for
    reconsideration in light of this opinion; and dismiss Appellees’
    8
    cross-appeal for lack of jurisdiction.   In all other respects, we
    affirm.
    AFFIRMED in part; REVERSED in part; DISMISSED in part;
    REMANDED with directions.
    OSTERHAUS and WINOKUR, JJ., concur.
    _____________________________
    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
    _____________________________
    Mark V. Murray, Tallahassee; and Terry P. Roberts of Law Office
    of Terry P. Roberts, Tallahassee, for Appellant/Cross-Appellee.
    Davisson F. Dunlap, Jr., of Dunlap & Shipman, P.A., Tallahassee,
    for Appellees/Cross-Appellants.
    9