NATALIA SOLANGE FONT POMALES v. AKLIPSE ASSET MANAGEMENT, INC.

Third District Court of Appeal
State of Florida
Opinion filed February 23, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-1130
Lower Tribunal No. 20-25273 CC
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Natalia Solange Font Pomales, et al.,
Appellants,
vs.
Aklipse Asset Management, Inc.,
Appellee.
An Appeal from the County Court for Miami-Dade County, Lawrence
D. King, Judge.
The Power Law Firm, and Bryan A. Dangler, (Winter Park); Law Office
of Robert Wayne, and Shawn A. Wayne and Robert Wayne, for appellants.
No appearance for appellee.
Before LINDSEY, MILLER, and BOKOR, JJ.
LINDSEY, J.
Appellants Natalia Solange Pomales and Anthony Martinez (the
“Tenants”) appeal the trial court’s order denying their motion for attorney’s
fees and costs. We reverse and remand for further proceedings consistent
with this opinion.
I. BACKGROUND
This case arises from an eviction initiated by Appellee Aklipse Asset
Management, Inc. (“Aklipse”). 1 Aklipse’s complaint alleged that the Tenants
failed to allow access to the premises for repairs or inspections in violation
of the lease agreement and Chapter 83, Florida Statutes, and further failed
to vacate the premises after receiving a notice of termination. Aklipse sought
attorney’s fees and costs in its complaint. In their answer, the Tenants
likewise requested fees pursuant to the lease agreement.
On March 16, 2021, Aklipse’s counsel filed a motion to withdraw from
the case, which the trial court granted. The trial court ordered Aklipse, a
corporate entity, to appear through counsel within twenty days. The order
further stated that “[f]ailure to comply . . . will create a presumption that
[Aklipse] no longer wishes to participate in the lawsuit and the Court may sua
sponte or on motion by opposing party impose sanctions against [Aklipse].
1
Aklipse has not appeared through counsel on appeal and has therefore not
submitted an answer brief.
2
Sanctions may include the imposition of fees and costs, striking of pleadings,
entry of default and dismissal of the action.”
Aklipse did not appear through counsel within twenty days. Instead,
Aklipse’s corporate representative sent a letter to the trial court requesting a
dismissal without prejudice given its failure to obtain counsel. The Tenants
filed an objection to the letter, asserting that they were prepared to go to trial
and that they had incurred substantial attorney’s fees defending the action.
Notwithstanding their objection, the trial court entered an Order of Voluntary
Dismissal based on the corporate representative’s letter and dismissed the
action without prejudice. In doing so, the trial court “[made] no finding or
ruling herein as to the entitlement by either party to an award of reasonable
. . . Attorney’s Fees or Costs.”
The Tenants subsequently filed a Motion for Attorney Fees and Costs,
seeking fees under section 83.48, Florida Statutes (2021). 2 The trial court
denied the motion because “the Court did not at any time enter a judgment
on the merits in favor of the [Tenants]. . . . Indeed, pursuant to the Notice of
2
The Tenants also moved for fees under section 57.105(7), Florida Statutes
(2021), which makes unilateral fee agreements reciprocal. But because the
provision in the lease agreement is not unilateral, that statute is inapplicable
here.
3
Voluntary Dismissal issued by [Aklipse’s] corporate representative . . . this
action was dismissed without prejudice[.]” The Tenants timely appealed.
II. ANALYSIS
“It is well recognized that a corporation, unlike a natural person, cannot
represent itself and cannot appear in a court of law without an attorney.”
Szteinbaum v. Kaes Inversiones y Valores, C.A., 476 So. 2d 247, 248 (Fla.
3d DCA 1985) (citing Nicholson Supply Co. v. First Fed. Sav. & Loan Assoc.,
184 So.2d 438 (Fla. 2d DCA 1966)). Here, Aklipse’s corporate
representative was not an attorney and was not authorized to represent
Aklipse. Therefore, the letter, which was never signed by an attorney, could
not be treated as a notice of voluntary dismissal on Aklipse’s behalf. 3
Because the lower court’s order denying the Tenants’ motion for fees
was explicitly based on an improperly entered voluntary dismissal, we
reverse and remand without prejudice to the trial court dismissing the matter
as a sanction for Aklipse’s failure to comply with the order requiring Aklipse
to appear through counsel, or to the Tenants seeking involuntary dismissal
3
The dissent suggests, without citation to authority, that the well-established
prohibition against corporate self-representation may not apply in this
situation. We do not read this prohibition so narrowly as to only apply when
a corporation is prosecuting or defending an action. Rather, as explained by
this Court in Szteinbaum, the prohibition broadly applies to the practice of
law. 476 So. 2d at 248.
4
pursuant to Florida Rule of Civil Procedure 1.420(b) for Aklipse’s failure to
comply with the trial court’s order. 4
Reversed and remanded.
BOKOR, J., concurs.
4
The dissent contends we exceed the scope of our review in considering the
dismissal order. However, as set forth above, the order denying the Tenants’
motion for fees is necessarily based on this erroneous dismissal. See Saul
v. Basse, 399 So. 2d 130, 133 (Fla. 2d DCA 1981) (“[A]n appeal from a final
order calls up for review all necessary interlocutory steps leading to that final
order, whether they were separately appealable or not.” (citing Auto-Owners
Ins. Co. v. Hillsborough Cnty. Aviation Auth., 153 So.2d 722, 724
(Fla.1963))). We also note that the notice of appeal was filed within 30 days
of rendition of the dismissal order.
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Natalia Solange Font Pomales, et al. v. Aklipse Asset Management,
Inc.
Case No. 3D21-1130
MILLER, J., dissenting.
I am compelled to respectfully dissent. This is an appeal from an order
denying entitlement to attorney’s fees and costs, not from an order ratifying
a voluntary dismissal. Yet, instead of determining whether fees and costs
were denied in error, in today’s decision, the majority sua sponte reverses
the unappealed order of dismissal that precipitated the underlying motion for
fees and costs. Because well-settled principles of judicial restraint counsel
against reversing an unappealed order based upon unpreserved, unbriefed,
and unargued issues, I cannot join in the majority decision.
BACKGROUND
In this routine eviction case, appellee, the landlord, brought suit in the
county court against appellants, the tenants. After some litigation, counsel
for the landlord withdrew. Citing burgeoning attorney’s fees, the president
and co-founder of the landlord entity then requested a voluntary dismissal.
The tenants filed a written objection, noting their readiness for trial and
certain litigation-related expenses. They noted in their objection, however,
“[tenants] cannot stop or prohibit the [landlord] from dismissing [its] case, but
[tenants] will proceed immediately for requested attorneys’ fees and costs.”
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The trial court ratified the dismissal by way of a written order, and the tenants
timely, but unsuccessfully, moved for fees and costs. The instant appeal
followed. On appeal, the tenants raise but one issue. They contend the trial
court erred in denying fees and costs. The landlord has not appeared or filed
an answer brief.
ANALYSIS
The decision by the majority to reverse the unappealed final order of
dismissal based upon unpreserved, unbriefed, and unargued reasoning is
contrary to three separate, but overlapping, principles of judicial restraint.
It is axiomatic that Florida’s appellate courts are error-correcting courts
of limited jurisdiction. Consequently, such courts are “not at liberty to
address issues that were not raised by the parties,” and must confine any
decision to those issues raised in the briefs. Anheuser-Busch Cos., Inc. v.
Staples, 125 So. 3d 309, 312 (Fla. 1st DCA 2013); see also Bainter v.
League of Women Voters of Fla., 150 So. 3d 1115, 1126 (Fla. 2014) (quoting
Powell v. State, 120 So. 3d 577, 591 (Fla. 1st DCA 2013)) (“‘Basic principles
of due process’—to say nothing of professionalism and a long appellate
tradition—‘suggest that courts . . . ought not consider arguments outside the
scope of the briefing process.’”); Redditt v. State, 84 So. 2d 317, 320 (Fla.
1955) (“The function of an assignment of error is to point [to] the specific
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error claimed to have been committed by the court below, in order that the
reviewing court and opposing counsel may see on what point the appellant
seeks reversal and to limit argument and review to such point.”).
Equally well-established is the secondary proposition that an appellate
court may not “depart from its dispassionate role and become an advocate
by second guessing counsel and advancing for him [or her] theories and
defenses which counsel either intentionally or unintentionally has chosen not
to mention.” Polyglycoat Corp. v. Hirsch Distribs., Inc., 442 So. 2d 958, 960
(Fla. 4th DCA 1983). “If we bend this rule, we ‘undermine an important rule
of judicial restraint.’” MacNeil v. Crestview Hosp. Corp., 292 So. 3d 840, 845
(Fla. 1st DCA 2020) (Jay, J., concurring) (quoting Torres v. State, 301 So.
3d 314, 316 (Fla. 5th DCA 2019)).
In line with these principles is yet a third. “In order to be preserved for
further review by [an appellate] court, an issue must be presented to the
lower court and the specific legal argument or ground to be argued on appeal
or review must be part of that presentation . . . .” Tillman v. State, 471 So.
2d 32, 35 (Fla. 1985). In this regard, appellate courts must zealously guard
against placing “a higher value on the rendition of a volunteered . . . opinion
than on the virtues of judicial restraint.” State v. Barati, 150 So. 3d 810, 814
8
(Fla. 1st DCA 2014) (quoting Superintendent, Mass. Corr. Inst., Walpole v.
Hill, 472 U.S. 445, 462 (1985)).
Abandonment of any one of these principles is fraught with danger, let
alone all three. As was cogently explained by Justice Lawson (then Judge
Lawson) in T.M.H. v. D.M.T., 79 So. 3d 787 (Fla. 5th DCA 2011):
Judicial restraint . . . refers to the principle that a court’s power of
judicial review should only be used where the law demands it,
and never as a means of simply substituting the values or
judgment of the individual judges deciding a case for the values
or judgment of the elected representatives of the people. Judicial
restraint serves as the essential self-imposed “check” against the
judicial branch’s abuse of power.’”
Id. at 826–27 (Lawson, J., dissenting) (citations omitted).
In contravention of these principles, the majority sua sponte reverses
the order of dismissal. The basis for reversal rests upon legal reasoning that
was not preserved and has neither been argued nor briefed. In explaining
its decision to review the order that is not on appeal, the majority states, “[w]e
also note that the notice of appeal was filed within 30 days of the rendition of
the dismissal order.” While this statement is technically correct because the
notice of appeal was filed within 30 days of rendition of the dismissal order,
nobody appealed the dismissal order. Only the order denying fees and costs
was appealed.
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Indeed, nobody is contending the order of dismissal should be
reversed. Instead, the opposite is true. The landlord requested the entry of
the dismissal in the lower tribunal. And, given that it has not filed an answer
brief or even appeared in these proceedings, that position remains
unchanged of record. Similarly, the tenants asserted below they were
powerless to prevent entry of the order, and, in these proceedings, they are
relying upon the dismissal order to justify entitlement to fees and costs.
The majority further states, “an appeal from a final order calls up for
review all necessary interlocutory steps leading to that final order.” Saul v.
Basse, 399 So. 2d 130, 133 (Fla. 2d DCA 1981). While it is true that we may
review all decisions that shaped the contours of an appealed judgment,
reliance upon this adage in this context is misplaced. The order of dismissal
was not an interlocutory order, but rather a final order, subject to separate
appeal. And nobody has appealed that order. The “interlocutory steps”
leading to this appeal consist only of those rulings made between the time
the final order of dismissal was rendered and the fees and costs were denied.
Hence, the appeal of the order denying entitlement does not serve to revive
any error relating to the dismissal order. See Fla. R. App. P. 9.110(h)
(“[Appellate] court[s] may review any ruling or matter occurring before filing
of the notice [of appeal].”); Philip J. Padovano, Florida Appellate Practice §
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1:7 (2021 ed.) (“The phrase ‘any ruling or matter’ in Rule 9.110(h) refers to
a prior interlocutory order entered in the course of the litigation relating to the
final order under review. It does not include a prior final order or an
interlocutory order that is unrelated to the final order.”).
The practical effects flowing from the majority decision warrant
examination. Nullifying the dismissal order reopens the underlying case,
effectively re-subjecting both parties to previously abandoned litigation and
liability, while, at the same time, requiring the needless expenditure of further
judicial resources. Further, in the broader context, the decision suggests
that litigants need not preserve arguments or seek review in order to obtain
appellate relief.
Finally, whether the voluntary dismissal is, as the majority has decided,
a nullity, is not entirely clear. Although there are a myriad of reported
decisions espousing the proposition that a corporation must prosecute or
defend an action through counsel, there is no clear precedent supporting the
proposition that a corporation may only exit litigation or abandon the
prosecution of a case through counsel. See Aktan v. Gotham Collection
Servs. Corp., 305 So. 3d 632, 633 (Fla. 3d DCA 2020); Szteinbaum v. Kaes
Inversiones y Valores, C.A., 476 So. 2d 247, 248 (Fla. 3d DCA 1985);
Nicholson Supply Co. v. First Fed. Sav. & Loan Ass’n of Hardee Cnty., 184
11
So. 2d 438, 440 (Fla. 2d DCA 1966). Thus, deciding this issue without the
benefit of argument or briefing creates an amplified risk of error.
Concluding therefore that the majority has overlooked several well-
established axioms restricting the scope of our review and extolling judicial
restraint, I respectfully dissent.
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