Diaz v. Andy

987 So. 2d 698, 2008 Fla. App. LEXIS 8444, 2008 WL 2356712
CourtDistrict Court of Appeal of Florida
DecidedJune 11, 2008
DocketNo. 3D07-409
StatusPublished
Cited by1 cases

This text of 987 So. 2d 698 (Diaz v. Andy) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Diaz v. Andy, 987 So. 2d 698, 2008 Fla. App. LEXIS 8444, 2008 WL 2356712 (Fla. Ct. App. 2008).

Opinion

ROTHENBERG, J.

This appeal stems from an action filed by Gus Andy (“the Plaintiff’) against Daniel G. Diaz (“the Defendant”), asserting claims for conversion (Count I) and civil theft under section 812.014(1), Florida Statutes (2001) (Count II). The trial court referred the parties to nonbinding arbitration on all issues, including attorney’s fees and costs, in accordance with section 44.103, Florida Statutes (2006), and Florida Rule of Civil Procedure 1.820.

The underlying facts, which are basically undisputed, are as follows. In 2001, the Defendant owned waterfront property with a private seawall. The Defendant’s seawall abuts a seawall that is across the street from the Plaintiffs property. The Defendant moored two vessels to his private seawall, and the Plaintiff moored his twenty-two foot 1973 Catalina sailboat to the seawall abutting the Defendant’s property. The Plaintiff purchased his sailboat for $8000 several years prior to Hurricane Andrew, which occurred in August 1992. When the Plaintiff purchased the sailboat, it was rigged with a mast, boom, and sails. During Hurricane Andrew, the mast, boom, and sails were lost, and this equipment was never replaced.

Aecording to the Defendant, the sailboat hull would bump up against his forty-eight foot vessel, causing damage. Although the Defendant allegedly complained to The City of Miami, the Department of Environmental Resources Management, and the Marine Patrol, no action was taken. In an attempt to determine who owned the sailboat, the Defendant hired a private investigator, and when the investigator’s research proved unsuccessful, the Defendant concluded that the sailboat hull had been abandoned. On December 3, 2001, the Defendant and another individual, without authority from the Plaintiff, removed the 1973 sailboat from the seawall, towed it out to Biscayne Bay, and anchored it.

The Defendant was subsequently arrested and charged with grand theft in the third degree. The Defendant, who had no prior criminal record and was subject to possible deportation if convicted, entered a pretrial intervention program, and paid $5000 in restitution to the Plaintiff, although the sailboat, as later determined by the arbitrator, was worth only $500 at the time. Following the Defendant’s successful completion of the pretrial intervention program, the State nolle prossed the grand theft charge.

On July 1, 2002, the Plaintiff sent a letter to the Defendant, stating that pursuant to section 772.11, Florida Statutes (2001),1 he was demanding the immediate [700]*700return of the 1973 sailboat or payment of treble damages in the amount of $24,000, within thirty days.2

After the Defendant failed to return the sailboat or tender $24,000, the Plaintiff filed the instant civil action against the Defendant in December 2003. In his answer, affirmative defenses, and counterclaim, the Defendant asserted, in part, that the Plaintiff maliciously instituted this civil proceeding and that the $5000 in restitution he already had paid fully compensated the Plaintiff because the sailboat was worth substantially less.

On April 18, 2006, the Defendant served the Plaintiff with a motion for attorney’s fees pursuant to section 57.105(l)(b). Thereafter, on April 28, 2006, the trial court referred the action to nonbinding arbitration, ordering the arbitrator to consider all issues, including attorney’s fees and costs.

After the matter was heard, the arbitrator filed her written decision on September 13, 2006, finding as to the conversion and civil theft counts that the Defendant removed the “sailboat hull” with the intent to deprive the Plaintiff of its use, and that at the time of the removal, the fair market value of the “sailboat hull” was $500. As to attorney’s fees and costs, the arbitrator’s decision provides:

The above stated findings [as to intent to deprive and fair market value] entitle Plaintiff to an award of attorney’s fees and costs. Because the demand letter, dated July 1, 2002, did not state an accurate and substantiated value of damages pursuant to 772.11, Florida Statutes and, from the evidence and testimony presented, there were no obvious or reasonable offers of settlement from that date to the present, this award will not grant Plaintiffs attorney his full requested fees through August 8, 2006, or $35,460.00. The award of Plaintiffs attorney’s fees will be modified to include all fees up to the date of the demand letter, as well as 1) time spent to review the file and consult with prior counsel; 2) time spent attending hearings with the General/Special Master and Arbitrator, and Mediation conferences; 3) time spent appearing before the presiding Judge, and 4) time spent with regard to a proposal for settlement. The total of the amount awarded to Plaintiff for attorney’s fees and costs is 37.5 hours @ 300.00 per hour = $11,250.00.

Although the trial court ordered the arbitrator to determine all issues, including attorney’s fees and costs, the arbitrator’s written decision failed to address the Defendant’s claim for attorney’s fees pursuant to section 57.105(l)(b), and did not address whether the Defendant was entitled to a setoff as a result of the restitution payment to the Plaintiff.3

[701]*701On September 25, 2006, approximately twelve days after the arbitrator entered her written decision, the Defendant filed a “Motion for Rehearing of Arbitration Ruling” (“Motion for Rehearing”), arguing that the Plaintiff was not entitled to an award of attorney’s fees and costs. As to the statutory civil theft claim, the Defendant argued that a condition precedent to an award of attorney’s fees and costs is a written demand for $200 or the treble damage amount. See § 772.11. Since the Plaintiff knowingly sought substantially more than treble damages in his written demand, he was not entitled to an award of fees and costs. As to the conversion claim, the Defendant asserted that the prevailing party in a conversion action is not entitled to an award of attorney’s fees unless there is a separate statutory or contractual basis for the award, and that no such basis exists in this cause.

In addition to the Defendant’s arguments objecting to the Plaintiffs entitlement to an award of attorney’s fees, the Defendant argued that he was entitled to an award of attorney’s fees and costs under section 772.11 because the Plaintiff, by seeking $24,000 for a $500 sailboat hull, “raised a claim which was without substantial fact or legal support.” The Defendant also claimed that he was entitled to an award of attorney’s fees against the Plaintiff and his two attorneys under section 57.105(l)(b). The record reflects that the trial court did not rule on the Defendant’s Motion for Rehearing; address the Defendant’s entitlement to an award of attorney’s fees; or refer the cause back to the arbitrator to allow the arbitrator to address the Defendant’s motion for section 57.105(l)(b) attorney’s fees,and his entitlement to a setoff.

On October 6, 2006, the Plaintiff filed a Motion for Entry of Judgment Pursuant to Non-Binding Arbitration Award (“Motion for Entry of Judgment”), arguing that pursuant to section 44.103, Florida Statutes (2006),4 and Florida Rule of Civil Procedure 1.820(h),5 because the Defendant did not file a request for a trial de novo within twenty days of the arbitrator’s decision, the trial court must enter orders and judgments necessary to carry out the terms of the arbitrator’s decision.

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Singleton v. State
987 So. 2d 698 (District Court of Appeal of Florida, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
987 So. 2d 698, 2008 Fla. App. LEXIS 8444, 2008 WL 2356712, Counsel Stack Legal Research, https://law.counselstack.com/opinion/diaz-v-andy-fladistctapp-2008.