Florida Diversified Films, Inc. v. Simon Roofing & Sheet Metal Corp.

118 So. 3d 240, 2013 WL 3723215, 2013 Fla. App. LEXIS 11238
CourtDistrict Court of Appeal of Florida
DecidedJuly 17, 2013
DocketNo. 3D12-389
StatusPublished
Cited by5 cases

This text of 118 So. 3d 240 (Florida Diversified Films, Inc. v. Simon Roofing & Sheet Metal Corp.) 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
Florida Diversified Films, Inc. v. Simon Roofing & Sheet Metal Corp., 118 So. 3d 240, 2013 WL 3723215, 2013 Fla. App. LEXIS 11238 (Fla. Ct. App. 2013).

Opinion

ON MOTION FOR REHEARING GRANTED

ROTHENBERG, J.

The appellee, Simon Roofing and Sheet Metal Corp. (“Simon Roofing”), seeks rehearing of this Court’s opinion issued on March 20, 2013. Upon further review, we grant rehearing, withdraw our previous opinion, and substitute the following opinion in its place.

Florida Diversified Films, Inc. (“FDF”), which was the plaintiff below, appeals from the trial court’s order denying its motion for attorney’s fees based on its proposal for settlement, which the defendant below, Simon Roofing, did not accept. We affirm.

In prior consolidated appeals from this same underlying case, Simon Roofing appealed a final judgment entered in favor of FDF for $1,492,000 following a bench trial before Judge Victoria Platzer, and FDF cross-appealed the denial of its request for prejudgment interest (Case Nos. 3D10-2379 and 3D10-2455). This Court affirmed the final judgment in favor of FDF, but reversed the trial court’s denial of FDF’s request for prejudgment interest, and remanded with instructions to award prejudgment interest to FDF in a specific amount. Simon Roofing & Sheet Metal Corp. v. Fla. Diversified Films, Inc., 84 So.3d 1086 (Fla. 3d DCA 2012).

Thereafter, this Court addressed FDF’s motion for appellate attorney’s fees, in which FDF asserted it was entitled to an award of appellate attorney’s fees because the final judgment was at least twenty-five percent greater than the $370,000 proposal for settlement; the proposal for settlement complies with section 768.79, Florida Statutes (2007), and Florida Rule of Civil Procedure 1.442; the proposal for settlement was made in good faith; and Judge Jose M. Rodriguez had already ruled that FDF was entitled to recover attorney’s fees based on the proposal for settlement. Simon Roofing objected to FDF’s motion for appellate attorney’s fees, raising several arguments. On March 9, 2012, this Court granted FDF’s motion for appellate attorney’s fees and costs, and remanded “to the trial court to fix amount.”

However, prior to this Court issuing its opinion in the prior appeals and granting [242]*242FDF’s motion for appellate attorney’s fee, Judge Platzer agreed to rehear the issue of FDF’s entitlement to attorney’s fees. Following a hearing, Judge Platzer entered a “Final Order Denying Attorney’s Fees to Plaintiff, Florida Diversified Films, Inc.” While the prior appeals were still pending, FDF appealed Judge Plat-zer’s order denying FDF’s entitlement to attorney’s fees, which is the subject of the instant appeal.

In the instant appeal, FDF contends that Judge Platzer’s order denying FDF’s entitlement to attorney’s fees must be reversed pursuant to the law of the case doctrine. Specifically, FDF argues that this Court’s March 9, 2012 order in the prior appeals, which granted FDF’s motion for appellate attorney’s fees and remanded to the trial court to fix the amount, constitutes the “law of the case,” entitling FDF to an award of trial level attorney’s fees and costs. As we conclude that a manifest injustice has been demonstrated sufficient to overcome the law of the case doctrine, we conclude we are not bound in this separate appeal regarding entitlement to trial level attorney’s fees.

“Where successive appeals are taken in the same case ... the doctrine of the law of the case applies.” Fla. Dep’t of Transp. v. Juliano, 801 So.2d 101, 105 (Fla.2001). This doctrine “requires that questions of law actually decided on appeal must govern the case in the same court and the trial court, through all subsequent stages of the proceedings.” Id.; see also Suffolk Constr. Co. v. First Sealord Sur., Inc., 63 So.3d 18, 19 (Fla. 3d DCA 2011) (“When an appellate court has decided a question of law, the decision of the court becomes law of the case. This doctrine prevents reconsideration of all issues necessarily decided in the former appeal.”). However, the law of the case doctrine “provides that an appellate court has the power to reconsider and correct an erroneous ruling that has become the law of the case where a prior ruling would result in a ‘manifest injustice.’ ” Juliano, 801 So.2d at 106 (citing Strazzulla v. Hendrick, 177 So.2d 1, 5 (Fla.1965)); see also Spectrum Interiors, Inc. v. Exterior Walls, Inc., 65 So.3d 543, 545 n. 1 (Fla. 5th DCA 2011) (citing Juliano, 801 So.2d at 106; Strazzulla, 177 So.2d at 1) (“An appellate court does have the power to reconsider and correct an erroneous ruling if necessary to prevent a manifest injustice.”); Suffolk Constr. Co., 63 So.3d at 19; Tiede v. Satterfield, 870 So.2d 225, 229 (Fla. 2d DCA 2004) (“[T]o alter the law of the case, we must look to see if the ‘strict adherence to the rule would result in ‘manifest injustice.’ ”); Allstate Ins. Co. v. De La Fe, 647 So.2d 965, 965 (Fla. 3d DCA 1994).

In the prior appeals, this Court on March 9, 2012, granted FDF’s motion for appellate attorney’s fees and remanded to fix the amount. We recognize that, if Simon Roofing cannot demonstrate that strict adherence to that ruling would result in a “manifest injustice,” the law of the case doctrine is applicable, and this Court must reverse Judge Platzer’s ruling based solely on that doctrine. However, based on the unusual circumstances of this case, we conclude that to reverse Judge Plat-zer’s order denying FDF’s entitlement to trial level attorney’s fees would result in manifest injustice.

First, when this Court issued its March 9, 2009 order granting FDF’s motion for appellate attorney’s fees and remanding to fix the amount, FDF’s appeal of Judge Platzer’s order denying FDF’s entitlement to attorney’s fees was pending before this Court. At that time, this Court did not have the transcript of the hearing before Judge Platzer or the initial brief addressing the merits of Judge Platzer’s ruling. Thus, this Court’s March 9, 2012 order [243]*243granting FDF’s motion for appellate attorney’s fees should have been conditioned upon FDF ultimately prevailing in the instant appeal of Judge Platzer’s order denying FDF’s entitlement to attorney’s fees. See De La Fe, 647 So.2d at 965.

Second, we conclude that Judge Platzer did not abuse her discretion by determining that FDF is not entitled to attorney’s fees based on its proposal for settlement. Therefore, if we reversed Judge Platzer’s order based solely on the law of the case doctrine, manifest injustice would occur as Simon Roofing wrongfully would be required to pay trial level attorney’s fees in the amount of $770,000 to FDF.

In ruling on whether FDF was entitled to attorney’s fees based on its proposal for settlement, Judge Platzer made the following findings of fact, which are supported by competent substantial evidence.

5. On October 30, 2006, Plaintiff, [FDF] filed a complaint against Simon Roofing alleging negligence during a roof repair.
6. The Complaint alleges that as a result of Simon Roofing’s negligence, FDF’s machines would probably need to be re-cleaned and its other business losses have been exacerbated.
7. FDF sought compensatory, incidental, and consequential damages in the Complaint.
8. On April 6, 2007, Plaintiff served a proposal for settlement in the amount of Three Hundred Seventy Thousand Dollars ($370,000.00). As of that date, Plaintiff had not produced any documents nor responded to any discovery from the defendants. No depositions had been taken.

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Bluebook (online)
118 So. 3d 240, 2013 WL 3723215, 2013 Fla. App. LEXIS 11238, Counsel Stack Legal Research, https://law.counselstack.com/opinion/florida-diversified-films-inc-v-simon-roofing-sheet-metal-corp-fladistctapp-2013.