IN THE DISTRICT COURT OF APPEAL OF THE STATE OF … · in the district court of appeal of the state...

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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA,

THIRD DISTRICT

PEDRO J. GOMEZ

Appellant Case No. 3D16-511

vs. Lower Court Case No.

13-12830 CA 23

JOSE E. GOMEZ AND

MARTHA M. GOMEZ,

Appellees

___________________________________/

APPELLANT’S NOTICE OF SUPPLEMENTAL AUTHORITY

Pursuant to Rules 9.225 of the Florida Rules of Appellate Procedure,

Appellant, PEDRO J. GOMEZ (“Appellant”), respectfully submits this Notice of

Supplemental Authority which transmits to the Court the following decisions,

copies of which are attached to this Notice:

1. MetroPCS Commc'ns, Inc. v. Porter, Case No. 3D12-3077 (Fla. 3d

DCA October 31, 2016) is pertinent to the issue of whether a lower tribunal has

authority to modify or evade an appellate mandate and the propriety of a denial of

a protective order based on an appellate ruling. This is discussed in the Initial

Brief, pp. 50 (n. 22), 54 (n. 23), 56-57, and in the Reply Brief, pp. 7-8.

2. Horace Mann Ins. Co. v. Chase, 51 So.3d 640 (Fla. 1st DCA 2011) is

pertinent to the issue of whether sanctions may be issued pursuant to Fla. R. Civ. P.

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1.380 where the sanctioned party did not fail to provide discovery or issued

pursuant to inherent authority where “the [trial] court's written order failed to

satisfy requirements set forth in Moakley v. Smallwood, 826 So.2d 221, 223-27

(Fla.2002).” This is discussed in the Initial Brief, pp. 38-39, 42, the Answer Brief,

pp. 8, 31-34, and the Reply Brief, p. 8-11.

3. Tenev v. Thurston, 41 Fla. Law Weekly D634 (Fla. 2nd

DCA March 9,

2016) is pertinent to the issue of whether sanctions may be entered against a party

where there is no evidence of prejudice to the opposing party. This is discussed in

the Initial Brief, p. 57 and the Reply Brief, pp. 10-11, 12, 15. Tenev is also

pertinent to the issue of whether sanctions may be imposed when the trial court’s

findings lack a high degree of specificity of bad faith actions. This is discussed in

the Initial Brief, pp. 32-34, 38-43, 47-48 and the Reply Brief, p. 11.

4. RV-7 Prop., Inc. v. Stefani De La O, Inc., 187 So.3d 915 (Fla. 3d

DCA 2016) is pertinent to the issue of whether attorney’s fees may be awarded

when the final order lacks a basis for entitlement. This is discussed in the Initial

Brief, pp. 37-38 and the Reply Brief, pp. 8-11, 13.

5. Creative Choice Homes, II, Ltd. v. Keystone Guard Servs., Inc., 137

So.3d 1144 (Fla. 3d DCA 2014) is pertinent to the issue of whether a trial court

must consider a party’s financial ability to pay a coercive contempt fine. This is

discussed in the Initial Brief, p. 50. Creative Choice is also pertinent to the issue of

3

whether sanctions are appropriate when a party makes a good faith effort to explain

why civil contempt sanctions should not be imposed. This is discussed in the Initial

Brief, pp. 51-57.

6. De Vaux v. Westwood Baptist Church, 953 So.2d 677 (Fla. 1st DCA

2007) is pertinent to the issue of what necessary elements are required

pursuant to the Statute of Frauds to establish an enforceable contract for the

purchase and sale of real property. This is discussed in the Initial Brief, pp. 22-23,

25.

Respectfully submitted,

KENZIE N. SADLAK, PA

Attorney for Appellant

PO Box 971635

Miami, FL 33197-1635

Tel. (305) 987-4151

[email protected]

By: _/S/ Kenzie N. Sadlak_________

Kenzie N. Sadlak

Florida Bar No. 618241

4

CERTIFICATE OF SERVICE

I hereby certify that on March 24, 2017, a true and correct copy of the foregoing

was furnished via email to: [email protected] for Matthew J.

Troccoli, Esq., Law Offices of Matthew Troccoli, PA, 2250 SW 3 Avenue, Suite

303, Miami, FL 33129.

____/S/ Kenzie N. Sadlak________

Kenzie N. Sadlak

Metropcs Commc'ns, Inc. v. Porter (Fla. App., 2016)

-1-

MetroPCS Communications, Inc., et al.,

Appellants,

v.

Jorge Porter, Appellee.

No. 3D12-3077

Third District Court of Appeal State of

Florida

October 31, 2016

Not final until disposition of timely filed

motion for rehearing.

Lower Tribunal No. 12-17187

An Appeal from the Circuit Court for Miami-

Dade County, Jorge E. Cueto, Judge.

Carlton Fields Jorden Burt, Aaron S. Weiss

and Steven M. Blickensderfer; Drinker Biddle

& Reath LLP and Michael J. Stortz (San

Francisco, California), for appellants.

Dorta Law, Gonzalo R. Dorta and Matias R.

Dorta, for appellee.

Before ROTHENBERG, EMAS and LOGUE,

JJ.

EMAS, J.

Page 2

On Motion to Enforce Mandate

In a prior appeal, MetroPCS

Communications, Inc. ("MetroPCS") sought

review of the trial court's order denying its

motion to compel arbitration. We reversed

the order and remanded this cause to the trial

court. MetroPCS Commc'ns, Inc. v. Porter,

114 So. 3d 348 (Fla. 3d DCA 2013). In our

opinion reversing and remanding, we

provided express directions to the trial court:

The order under review denying

arbitration is reversed for a

determination after an

evidentiary hearing of the

threshold issue of whether the

arbitration clause was contained

in a binding agreement between

the parties.

Id. at 348. The mandate issued on May 31,

2013.

Upon remand, the parties were directed

by the trial court to conduct appropriate

discovery in preparation for the

aforementioned evidentiary hearing on the

threshold issue. Thereafter, Porter served a

notice of taking deposition of MetroPCS'

corporate representative. Attached to the

notice was a schedule which listed twenty-one

separate "Areas of Inquiry." In response,

MetroPCS filed a motion for protective order,

asserting that eleven of these "Areas of

Inquiry" impermissibly exceeded the limited

scope of the single-issue evidentiary hearing

on the threshold issue and that such

discovery, if permitted, would violate this

court's mandate. MetroPCS sought to prohibit

Porter from making inquiry into

Page 3

Areas numbered Eight, Nine, Ten, Eleven,

Twelve, Fourteen, Fifteen, Sixteen, Seventeen,

Nineteen and Twenty.

At the hearing on the motion for

protective order, MetroPCS argued the court

was required by this court's mandate to limit

discovery to those areas bearing on the

threshold issue of whether there was a

binding arbitration agreement between the

parties. The trial court denied the motion,

indicating "if there is a case filed, [Porter's

counsel] or [MetroPCS's counsel] or anybody

else can ask anything you want during a

deposition relating to the case that is filed."

The trial court's order denying the

motion for protective order was contrary to

the mandate of this court. An appellate court

has the inherent authority to enforce its own

Metropcs Commc'ns, Inc. v. Porter (Fla. App., 2016)

-2-

mandate. Posner v. Posner, 257 So. 2d 530

(Fla. 1972); Wolf v. Horton, 322 So. 2d 71

(Fla. 3d DCA 1975). When an appellate court

issues its mandate, compliance by the lower

tribunal is a purely ministerial act, and the

lower tribunal is without authority to modify

or evade that mandate. Brunner Enterps., Inc.

v. Dep't of Revenue, 452 So. 2d 550 (Fla.

1984); Hollander v. K-Site 400 Assocs., 657

So. 2d 16 (Fla. 3d DCA 1995); Milton v. Keith,

503 So. 2d 1312 (Fla. 3d DCA 1987).

Our opinion directed the trial court to

conduct an evidentiary hearing which was

expressly limited in scope to the threshold

issue of whether the arbitration clause was

contained in a binding agreement between

the parties. This necessarily

Page 4

limited the scope of any discovery to be

conducted in preparation for the evidentiary

hearing. To permit a party under these

circumstances to conduct full discovery

before the threshold issue is determined by

the trial court would be contrary to the

mandate of this court and would undermine

one of the central underlying purposes of

arbitration. See Merrill Lynch Pierce Fenner

& Smith, Inc. v. Melamed, 425 So. 2d 127,

128-29 (Fla. 4th DCA 1982) (observing that

the "[s]peedy resolution of disputes is the

raison d'être of arbitration. Once parties

agree to arbitrate, it is essential that they have

an easy and quick means enforce their

agreement to arbitrate.")

We need not belabor the point by

restating each of the eleven Areas of Inquiry

to which MetroPCS objected. Suffice it to say

that the motion for protective order should

have been granted as to "Areas of Inquiry"

numbered Eight, Nine, Ten, Eleven, Twelve,

Fourteen, Fifteen, Sixteen, Seventeen,

Nineteen and Twenty.1

The order denying the motion for

protection order is quashed. We remand this

cause to the trial court, as before, with

directions to conduct a limited

Page 5

evidentiary hearing on the threshold issue of

whether the arbitration clause was contained

in a binding agreement between the parties.

Any further discovery to be conducted for

purposes of that evidentiary hearing shall be

limited to this threshold issue. This opinion

shall take effect immediately,

notwithstanding the filing or disposition of

any motion for rehearing.

Order quashed. Cause remanded with

directions.

--------

Footnotes:

1. In his response to the motion to enforce

mandate, Porter contends only that discovery

should be permitted into Areas of Inquiry

numbered Eight, Nine and Ten. Porter's

response wholly failed to address Areas of

Inquiry numbered Eleven, Twelve, Fourteen,

Fifteen, Sixteen, Seventeen, Nineteen and

Twenty, apparently abandoning any

contention that these Areas of Inquiry were

within the proper scope of the limited

discovery to be conducted in advance of the

evidentiary hearing directed by our mandate.

--------

Horace Mann Ins. Co. v. Chase, 51 So.3d 640 (Fla. App., 2011)

-1-

51 So.3d 640

HORACE MANN INSURANCE

COMPANY, Appellant,

v.

Allison N. CHASE, Individually, and as

Co-Personal Representative of the

Estate of Richard Chase, Deceased.,

Appellee.

No. 1D09-5572.

District Court of Appeal of Florida,

First District.

Jan. 19, 2011.

[51 So.3d 641]

Tammy De Soto Cicchetti and Audra M.

Bryant of The Cicchetti Law Firm,

Tallahassee, for Appellant.

Benjamin E. Richard, Stephen J. Pajcic,

III, and William A. Bald of Pajcic & Pajcic,

P.A., Jacksonville, for Appellee.

PER CURIAM.

We grant the Appellee's Motion for

Clarification, withdraw our previous opinion,

and substitute the following opinion in its

place.

This appeal concerns a circuit court's

decision to impose sanctions for a party's

bad-faith failure to participate in pre-trial

discovery. Because the order imposing

sanctions does not meet the requirements of

either rule or common law, we reverse the

order as it applies to Appellant, Horace Mann

Insurance Co.

Prior to trial, the circuit court concluded

Appellant committed "gross discovery

misconduct" and acted with "bad faith,

willfulness or deliberate disregard." The court

imposed sanctions against Appellant

pursuant to (1) Florida Rule of Civil

Procedure 1.380 (2008); and (2) its inherent

power to sanction.

Sanctions were inappropriate under Rule

1.380 because the Appellees did not prevail

on a motion to compel and Appellant's

counsel did not fail to appear at a duly noticed

deposition. See Fla. R. Civ. P. Rule 1.380

(2008). Sanctions were also inappropriate

under the court's inherent power to sanction

because, although the record amply

supported the trial judge's conclusion, the

court's written order failed to satisfy

requirements set forth in Moakley v.

Smallwood, 826 So.2d 221, 223-27

(Fla.2002). We note that sanctions may have

been available under section 57.105(3),

Florida Statutes (2008), but the Appellees did

not timely request such relief.

Accordingly, because the circuit court's

order failed to cite sufficient grounds on

which to base its imposition of sanctions

against Appellant, we reverse.

REVERSED.

WEBSTER, LEWIS and HAWKES,

JJ., concur.

Tenev v. Thurston (Fla. App., 2016)

-1-

PETIA B. TENEV, ESQ., Appellant,

v.

FREDERICK D. THURSTON, D.M.D.,

individually; THURSTON DENTAL

ASSOCIATES, P.A.,

a Florida professional association; and

THURSTON AND ACOSTA DENTAL

ASSOCIATES, P.L.,

a Florida limited liability company,

Appellees.

Case No. 2D14-4566

DISTRICT COURT OF APPEAL OF

FLORIDA SECOND DISTRICT

March 9, 2016

NOT FINAL UNTIL TIME EXPIRES TO FILE

REHEARING MOTION AND, IF FILED,

DETERMINED

Appeal from the Circuit Court for Polk

County; Keith Spoto and J. Dale Durrance,

Judges.

Petia B. Tenev, Esq., pro se.

Matthew Morrow, St. Petersburg, for

Appellant.

Hank B. Campbell and William T. McKinley

of Valenti Campbell Trohn Tamayo & Aranda,

P.A., Lakeland, for Appellees.

SLEET, Judge.

Page 2

Petia B. Tenev challenges the trial court's

final judgment granting sanctions against her

in which the trial court directed Tenev to pay

$68,385.83 in attorneys' fees and $5853.83 in

costs to Frederick Thurston, D.M.D.;

Thurston Dental Associates, P.A.; and

Thurston and Acosta Dental Associates, P.L.

(collectively Thurston), who were the

plaintiffs below. Tenev represented the

defendants below, Henry Acosta, D.M.D., and

Acosta Dental Associates, P.L. (collectively

Acosta). We reverse.

The underlying action involved the

separation and winding up of a dental

practice that had been owned by Thurston

and Acosta. The proceedings were bifurcated

with the issues of dissolution, wind up, and

an accounting addressed first at a bench trial.

The parties then prepared to address the issue

of damages via a jury trial. On May 5, 2014,

the parties selected a jury, including one

alternate, and the jury was sworn in. Before

adjourning for the day, the court1 addressed

the jurors specifically, stating:

I want to remind you that

during this overnight recess do

not discuss this case among

yourselves or with any other

persons, and do not permit

anyone to say anything to you in

your presence about the case, do

not read or listen to any reports

about the case, and do not do

any electronic research on the

Internet or any other electronic

devices concerning this case or

the location of this case, and do

not have any conversation

whatsoever with the attorneys,

the parties, or any of the

witnesses who are listed to

appear in this case.

Page 3

On the following morning, before the

jurors entered the courtroom, the court

convened to discuss the logistics of the trial

with the parties and counsel. After about

thirty minutes of discussion, as the trial court

was about to bring the jurors back into the

courtroom, Tenev informed the court that she

wanted to strike a juror for cause because the

juror was a Facebook friend of one of Dr.

Acosta's employees. Initially, the court

became upset and admonished Tenev for

violating the aforementioned instruction to


-2-

the jurors before adjourning the day before.

Then the trial court asked Tenev how she

came to learn this information, and a lengthy

discussion ensued during which Tenev gave

three different answers to the inquiry. None

of Tenev's responses involved any contact

with the juror.

After hearing Tenev's responses, the trial

court first stated that it could strike the

questionable juror and proceed to trial with

the alternate juror. Both parties initially

agreed, but Thurston then asked for the court

to inquire of both Dr. Acosta's wife and the

juror. The court granted the request and

inquired of the juror, who admitted to being

Facebook friends with Dr. Acosta's hygienist

but stated that she was unaware that the

hygienist worked part time for Acosta and

that she did not know anything about the

instant case. Further, the juror stated that she

had not had any contact with any party or

attorney involved in the case. Thereafter, the

court sent the juror back to the jury room and

inquired of Dr. Acosta's wife, Katherine Loh.

Loh testified that she found the jury list

in Dr. Acosta's suit coat the evening before

and decided to research the jurors on the

Internet. She discovered that one of the jurors

was Facebook friends with the hygienist.

Thereafter, she sent a text to Tenev informing

her of the relationship and asking her to

strike the juror. Tenev

Page 4

responded to Loh that morning via text and

asked for the name of the juror. Loh provided

the name to Tenev.

Rather than making a motion to strike

the juror and proceed to trial with the

alternate juror, Thurston moved for a mistrial

and argued that there was no way he could

receive a fair trial given that Tenev and Loh

had attempted to make improper contact with

a juror. Tenev argued that the court should

excuse the juror and proceed with the

alternate juror because there was no evidence

of any improper contact between herself and

any juror. The court found that Tenev had

acted in bad faith, and it granted a mistrial.

However, the court did not find that Tenev

had made any contact with the juror or that

trial could not proceed with the remaining

panel of jurors. Thurston filed a motion for

sanctions, alleging that Tenev's dishonesty

and improper juror research caused the

mistrial. Following a hearing, the trial court

granted the motion and ordered Tenev to pay

for Thurston's counsel's fees and costs for

preparation and attendance at the trial and

prosecution of their motion for sanctions.

On appeal, Tenev first argues that the

trial court's imposition of sanctions must be

reversed because the court failed to make

specific findings as to the grounds for the

sanctions. However, the trial court did make a

specific finding that Tenev was dishonest in

answering the court's inquiry about the basis

for striking the juror and such does constitute

an ethical violation between Tenev and the

court. But the court failed to make specific

findings as to any bad faith acts committed by

Tenev that were so prejudicial as to vitiate the

entire trial and necessitate a mistrial.

Although counsel for Thurston's frustration

with Tenev is palpable from the record,

Thurston did not provide the trial court with a

sufficient legal basis to grant the mistrial.

Page 5

"We review an order imposing sanctions

for abuse of discretion." Rush v. Burdge, 141

So. 3d 764, 766 (Fla. 2d DCA 2014). "[A] trial

court possesses the inherent authority to

impose attorneys' fees against an attorney for

bad faith conduct." Moakley v. Smallwood,

826 So. 2d 221, 226 (Fla. 2002). However,

that authority is not unfettered or without

limits; the court must strike a balance

"between condemning as unprofessional or

unethical litigation tactics undertaken solely

for bad faith purposes, while ensuring that

attorneys will not be deterred from pursuing


-3-

lawful claims, issues, or defenses on behalf of

their clients or from their obligation as an

advocate to zealously assert the clients'

interests." Id. Accordingly

the trial court's exercise of the

inherent authority to assess

attorneys' fees against an

attorney must be based upon an

express finding of bad faith

conduct and must be supported

by detailed factual findings

describing the specific acts of

bad faith conduct that resulted

in the unnecessary incurrence of

attorneys' fees. Thus, a finding

of bad faith conduct must be

predicated on a high degree of

specificity in the factual

findings.

Id. at 227.

In the instant case, the trial court made

the following findings in its written order:

With regard to Plaintiffs'

Motion for Sanctions against

Defendants' counsel, Petia

Tenev, Esquire, the court

specifically finds that her bad

faith conduct leading up to,

during and even subsequent to

the jury trial which began on

May 5, 2014, and which

mistried on May 6, 2014,

reflects an intentional,

consistent, deliberate, and

contumacious disregard for [the

trial] court's authority. In

particular the conduct of

Defendant's counsel pertaining

to her May 6, 2014, request to

disqualify a juror for cause after

the jury was sworn on May 5,

2014, well establishes her

unethical and willful disregard

of or gross indifference to the

authority of the court. As clearly

reflected in the transcript, in the

history of this case, and as

asserted in Plaintiffs' Motion for

Sanctions, Ms. Tenev's actions,

including her admitted

Page 6

dishonesty to the court's direct

questioning, mandates

sanctioning . . . .

The bulk of the trial court's findings lack

the high degree of specificity required to

support the imposition of sanctions.

However, the court arguably makes a

sufficiently detailed finding upon which to

sanction Tenev for being dishonest before the

court. But a review of the record before us

clearly establishes that Tenev's dishonesty

was not a litigation tactic undertaken solely

for bad faith purposes. Tenev initially set out

to notify the court of a potentially biased juror

before trial commenced. Such was her duty as

an officer of the court, and she clearly was not

attempting to unduly delay or protract

litigation or to seek an unfair advantage

against Thurston. However, the aggressive

inquiry by the trial court as to the legal basis

for her motion to strike the juror was met

with inarticulate, evasive, and dishonest

answers. As a consequence, she violated her

oath as an attorney to be honest before a

tribunal. See R. Regulating Fla. Bar 4-

3.3(a)(1) ("A lawyer shall not knowingly . . .

make a false statement of fact or law to a

tribunal."); 4-8.4(c) ("A lawyer shall not . . .

engage in conduct involving dishonesty,

fraud, deceit, or misrepresentation.").

Nevertheless, we conclude that the

dishonest answers Tenev gave to the trial

court during the conference before the

commencement of opening statements did

not adversely impact the proceedings in any

material way such that a fair trial could not be

had for both parties. And Tenev's actions

certainly did not result in Thurston incurring

additional attorneys' fees and costs. When a


-4-

trial court awards attorneys' fees as a sanction

against an attorney, "the amount of the award

of attorneys' fees must be directly related to

the attorneys' fees and costs that the opposing

party has incurred as a result of the specific

bad faith conduct of the attorney." Moakley,

826 So. 2d at 227.

Page 7

The trial court determined that Tenev's

actions caused the ultimate mistrial of the

case and awarded "all reasonable attorneys'

fees and costs incurred for preparation for

and attendance at jury trial." This was an

abuse of discretion because the only detailed

factual finding of bad faith on the part of

Tenev—the dishonest statements to the

court—did not warrant a mistrial. "[A]

mistrial should not be granted unless an

absolute legal necessity to do so exists."

Gatten v. Zachar, 932 So. 2d 543, 544 (Fla.

5th DCA 2006) (quoting Ratley v. Batchelor,

599 So. 2d 1298, 1302 (Fla. 1st DCA 1991));

White v. Consol. Freightways Corp. of Del.,

766 So. 2d 1228, 1232 (Fla. 1st DCA 2000)

(same); see also Duest v. State, 462 So. 2d

446, 448 (Fla. 1985) ("[A] mistrial is

appropriate only when the error committed

was so prejudicial as to vitiate the entire

trial.").

Once Tenev brought the issue of a

potentially biased juror to the trial court's

attention, the court questioned both Loh and

the juror, revealing no evidence of any

improper contact with any of the jurors on the

part of Tenev or Loh. Trial had not

commenced, and an agreed upon alternate

juror was available and could have been

substituted for the questionable juror. The

remaining jury panel, including the alternate,

had been sequestered during the hearing on

the request to strike, and there was no

indication that Thurston could not have

received a fair trial with the alternate juror

seated. In moving for mistrial, counsel for

Thurston argued that the jurors had been

waiting three hours and were aware that one

juror had been questioned by the court. But a

jury having to wait while a trial court hears a

motion is not so prejudicial to one party or

the other so as to create an absolute legal

necessity for a mistrial.

Furthermore, in granting the mistrial, the

trial court made much of the fact that Tenev

had disobeyed its instruction to do no

research on the case. But the pretrial

Page 8

instruction to refrain from discussions or

research about the case and to avoid any

contact with witnesses and parties was

directed to the jurors—not the attorneys or

the parties—and could not be a basis for the

imposition of sanctions against Tenev. There

is no prohibition in Florida law against an

attorney researching jurors before, during,

and throughout a trial so long as the research

does not lead to contact with a juror. An

attorney is not obligated to inform the court

of such research unless it affects the fairness

of the trial and the administration of justice.

In this case, the research was initiated by

a party's spouse who was also a witness under

subpoena to testify. When the result of the

research was relayed to Tenev, she had an

obligation to inform the court of a potentially

biased juror who had a relationship with her

client's employee, and she satisfied that

obligation. Even had Tenev immediately

stated that it was Loh who had made the

Facebook discovery, the trial court still would

have had to conduct a hearing and inquire of

Loh and the potentially biased juror. And

although the trial court also seemed to take

exception to the fact that Tenev did not bring

the issue to the trial court's attention until

thirty minutes into the morning's

proceedings, nothing about that time delay

exacerbated the situation or changed the fact

that the alternate juror could have been

seated in place of the potentially biased juror.


-5-

Review of the record demonstrates that

the trial court conducted numerous motion

hearings, patiently dealt with Tenev's

repetitive arguments, and expeditiously ruled

on the legal issues. However, it appears that

Tenev's motion to strike this juror on the

morning of trial was the proverbial straw that

broke the camel's back. The court's

frustration is evident in its order granting

sanctions; however, none of Tenev's actions

warranted the granting of Thurston's motion

for mistrial. Her dishonesty

Page 9

about the juror research did not directly affect

Thurston's incurrence of attorneys' fees and

costs in preparation for and attendance at the

jury trial. And the fees and costs Thurston did

incur in seeking sanctions were the result of

its own motion. At the hearing on the

sanctions motion, Thurston presented no

evidence or argument to establish that it had

been prejudiced in any way by the three

conflicting answers Tenev gave regarding the

juror research. As such, we must reverse the

trial court's order in its entirety.

Reversed.

ALTENBERND and LUCAS, JJ., Concur.

--------

Footnotes:

1. Trial was conducted before Judge Dale

Durrance, and he entered the mistrial and

issued the order imposing sanctions.

However, Judge Keith Spoto conducted the

hearing on and entered the order setting the

amount of sanctions.

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RV-7 Prop., Inc. v. Stefani De La O, Inc., 187 So.3d 915 (Fla. App., 2016)

-1-

187 So.3d 915

RV–7 PROPERTY, INC., Appellant,

v.

STEFANI DE LA O, INC., Appellee.

No. 3D14–2965.


Third District.

March 16, 2016.

Bales Sommers & Klein, P.A., and Jason

Klein, for appellant.

Law Office of Alberto Carrero, P.A., and

Alberto Carrero, for appellee.

Opinion

SCALES, J.

Appellant and defendant below, RV–7

Property, Inc. (RV–7), appeals a summary

judgment in favor of Appellee and plaintiff

below, Stefani De La O, Inc. (Stefani).

Because material facts exist that preclude

summary judgment, we reverse.

I. Facts and Procedural Background

In the trial court, Stefani filed a complaint for

breach of contract against RV–7. Stefani

alleged that RV–7 failed to pay Stefani for

interior design services Stefani provided for

RV–7. RV–7 initially admitted that it entered

into a contract with Stefani, but disputed that

RV–7 owed any money to Stefani and

asserted that Stefani failed to perform its

duties under the contract.

Stefani filed a motion for summary judgment,

arguing that no disputed factual issues

existed and that it was entitled to a judgment

against RV–7 as a matter of law. The parties

filed conflicting affidavits supporting and

opposing Stefani's motion for summary

judgment. Two days before the summary

judgment hearing, RV–7 filed a motion for

leave to amend its answer and affirmative

defenses, essentially asserting that the design

services contract was executed by Rubem

Vasconcelos, the president of RV–7, in his

personal capacity, and not as an agent for

RV–7.

The trial court denied RV–7's motion to

amend and granted Stefani's motion for

summary judgment. The trial court also

awarded attorney's fees to Stefani.

RV–7 raises three issues on appeal to this

Court: (i) the trial court erred in denying RV–

7's Motion for Leave to File Amended Answer

and Affirmative Defenses; (ii) the trial court

erred in granting summary judgment for

Stefani; and (iii) the trial court erred in

awarding attorney's fees to Stefani.

II. Standard of Review

Each of RV–7's bases for appeal bears its own

standard of review. A trial court decision

whether to allow an amendment of a pleading

is evaluated for abuse of discretion. Cobbum

v. Citimortgage, Inc., 158 So.3d 755 (Fla. 2d

DCA 2015). We review a trial court's

summary judgment order de novo. See

Volusia County v. Aberdeen at Ormond

Beach, L.P., 760 So.2d 126 (Fla.2000). And,

determinations on whether there exists a legal

basis entitling a party to attorney's fees are

reviewed de novo. Bateman v. Serv. Ins. Co.,

836 So.2d 1109 (Fla. 3d DCA 2003).

III. Analysis

Motion for Leave to Amend

First, the trial court erred when it denied RV–

7's motion for leave to amend. Amendments

to pleadings ought to be allowed freely unless

there is a clear

[187 So.3d 917]


-2-

danger of prejudice, abuse, or futility.

Laurencio v. Deutsche Bank Nat. Trust Co.,

65 So.3d 1190, 1193 (Fla. 2d DCA 2011); see

Kay's Custom Drapes, Inc. v. Garrote, 920

So.2d 1168, 1171 (Fla. 3d DCA 2006). If such

dangers cannot be clearly established, the

trial court abuses its discretion by denying the

party's motion for leave to amend the

pleading. Cobbum, 158 So.3d at 756. The

reason for the liberal allowance of amended

pleadings is to provide the best chance for

cases to be decided on their merits. S.

Developers & Earthmoving, Inc. v.

Caterpillar Fin. Servs. Corp., 56 So.3d 56

(Fla. 2d DCA 2011).

RV–7's Motion for Leave to Amend was

offered before the summary judgment

hearing took place. There appears to be no

clear danger of prejudice or abuse here, so the

only possible reason to disallow the

opportunity to amend would be futility. While

we may share the trial court's apparent

concern regarding the ultimate success of

RV–7's “new” affirmative defense, we cannot

say that, as a matter of law, the amendment is

futile. Any doubt with respect to futility

should be resolved in favor of allowing the

amendment, especially when leave to amend

is sought at or before the summary judgment

hearing. See Hart Properties, Inc. v. Slack,

159 So.2d 236 (Fla.1963). Thus, we conclude

that the trial court erred in not allowing RV–7

to amend its answer.

Summary Judgment

Second, the trial court erred when it granted

Stefani's motion for summary judgment. In

order to prevail on a motion for summary

judgment, the moving party has an obligation

to demonstrate conclusively the absence of

any genuine issues of material fact. Moore v.

Morris, 475 So.2d 666, 668 (Fla.1985). “The

trial court must interpret every possible

inference in favor of the non-movant, and

should not enter summary judgment unless

the facts are so crystallized that nothing

remains but questions of law.” Campaniello

v. Amici P'ship, 832 So.2d 870, 872 (Fla. 4th

DCA 2002).

Even without RV–7's amended pleading, the

record evidence before the trial court—

consisting of the parties' competing

affidavits—created genuine issues of material

fact regarding: (i) the parties to the contract;

(ii) whether Stefani satisfactorily performed

pursuant to the contract; and (iii) whether

and how much Stefani was owed pursuant to

the contract. These are issues of fact that

must be evaluated by the trier of fact. Thus,

the trial court erred in granting summary

judgment.

Attorney's Fees

Finally, the trial court erred in awarding

attorney's fees to Stefani. Attorney's fees

cannot be awarded in the absence of a

statutory or contractual basis specifically

entitling a party to such fees. Price v. Tyler,

890 So.2d 246 (Fla.2004).

In all the documents submitted to the trial

court, Stefani made no allegation or argument

in support of an entitlement to attorney's

fees; and, on appeal, Stefani has cited no

statutory or contractual basis for such

entitlement. Stefani argues only the

reasonableness of its requested fee amount.

Similarly, in the final judgment, the trial court

ruled on the reasonableness of the fees

awarded, but provided no statutory or

contractual basis for entitlement to an award

of attorney's fees.

On this record, we see no basis for such an

entitlement. Thus, the trial court erred in

awarding attorney's fees in the final

judgment.

IV. Conclusion

The trial court erred in (i) denying RV–7's

motion for leave to amend, (ii) granting

[187 So.3d 918]


-3-

summary judgment for Stefani, and (iii)

awarding attorney's fees to Stefani. We vacate

the final judgment, and reverse and remand

this case to the trial court for further

proceedings consistent herewith.

Reversed and remanded.

Creative Choice Homes, II, Ltd. v. Keystone Guard Servs., Inc., 137 So.3d 1144 (Fla. App., 2014)

-1-

137 So.3d 1144

CREATIVE CHOICE HOMES, II, LTD.,

etc., Appellant,

v.

KEYSTONE GUARD SERVICES, INC.,

Appellee.

No. 3D13–2770.


Third District.

April 2, 2014.

[137 So.3d 1145]

Clyatt & Richardson, P.A., and Kevin F.

Richardson (West Palm Beach), for appellant.

Carmela D. Jackson Law, P.A., and Carmela

D. Jackson, for appellee.

Before ROTHENBERG, SALTER, and

EMAS, JJ.

ROTHENBERG, J.

Creative Choice Homes, II, Ltd.

(“Creative Choice”), the defendant below,

appeals an order finding Creative Choice in

contempt and imposing sanctions for its

failure to file a fact information sheet (“FIS”)

as the court ordered in the final judgment.

Based on the facts of the case and the nature

of the sanctions, we find that the trial court

abused its discretion and accordingly reverse

the contempt order and remand with

instructions.

Keystone Guard Services, Inc.

(“Keystone”), the plaintiff below, was

awarded a $312,725.50 final judgment in

March 2009. The final judgment required

Creative Choice to file a completed FIS,

Florida Rules of Civil Procedure Form

1.977(b), which requires the disclosure of

various financial information to make the

judgment more easily enforceable, within 45

days of the order. Some five months later,

Creative Choice had not complied with the

requirement to file its FIS. The trial court,

upon Keystone's ex parte motion, entered an

order compelling Creative Choice to complete

and file the FIS on August 27, 2013. The order

compelling the completion of the FIS stated

that Creative Choice must complete the FIS

and deliver it to Keystone's attorney within

ten days of the order and warned that a

failure to comply would result in Creative

Choice being held in contempt of court.

Before the ten days had expired, Creative

Choice filed a motion to stay execution of the

final judgment and for relief from the order

compelling production of the FIS, arguing

that a pending related case filed by Creative

Choice against Keystone would likely result in

an offset in the judgment, and executing the

judgment and completing the FIS at that

juncture would

[137 So.3d 1146]

be premature. Shortly thereafter, Keystone

filed its motion for an order of contempt and

for sanctions because the ten-day period in

the order to compel completion of the FIS had

expired. The trial court set both motions to be

heard on September 17, 2013, but

rescheduled the motions to be heard the

following week because Creative Choice's

counsel had a conflict. On the morning of the

rescheduled hearing, Creative Choice's

counsel got stuck in traffic on the way to the

courthouse, and the trial court considered

both motions with only Keystone's counsel

present. The trial court denied Creative

Choice's motion to stay and granted

Keystone's motion for sanctions.

The order imposing sanctions found that:

(1) Creative Choice was in contempt of court;

(2) Creative Choice would be fined $2,500 per

day from the date of the order until it

delivered the completed FIS to Keystone's


-2-

attorney and filed a notice of compliance with

the trial court; (3) Creative Choice must pay

$450 in attorney's fees to cover Keystone's

costs on the contempt order; (4) Creative

Choice must pay all attorney's fees and fines

imposed, as well as deliver the completed FIS

to purge the contempt and stop the fines; and

(5) if Creative Choice did not purge the

contempt order within 30 days, a writ of

bodily attachment would be issued for the

principals of the company.

Creative Choice appeals the order

granting Keystone's motion for sanctions,

arguing that the sanctions imposed, although

civil in name, are criminal in nature and do

not comply with the prerequisites necessary

to impose criminal sanctions. Creative Choice

also contends that even if the sanction is a

civil sanction, the terms of this particular

sanction fail to meet the requirements of law.

Because the coercive civil sanction imposed

by the trial court failed to meet the

requirements of law, we reverse.

A contempt order imposing sanctions

comes to this Court with a presumption of

correctness and will only be overturned upon

a showing that the trial court abused its

discretion or departed from the essential

requirements of law. Neiman v. Naseer, 31

So.3d 231, 233 (Fla. 4th DCA 2010). There are

three types of sanctions a court may impose:

(1) criminal sanctions, (2) compensatory civil

sanctions, and (3) coercive civil sanctions. See

Parisi v. Broward Cnty., 769 So.2d 359, 363

(Fla.2000). “[D]etermining whether the

contempt proceedings are civil or criminal is

critical to the court and to the parties because

the nature of the contempt both determines

the procedures for adjudication and sets the

parameters for the sanctions that can be

imposed.” Id. at 364. “The distinction

between criminal and civil contempt often

turns on the ‘character and purpose’ of the

sanctions involved.” Id. (quoting Int'l Union,

United Mine Workers v. Bagwell, 512 U.S.

821, 827, 114 S.Ct. 2552, 129 L.Ed.2d 642

(1994)). The key distinction between criminal

and civil contempt is that criminal contempt

is punitive in nature and imposes an

unavoidable sanction, whereas civil contempt

is remedial or incentive-based and allows the

contemnor to purge the contempt and avoid

or reduce the sanction by complying with

court orders. Id. at 365;see also Berlow v.

Berlow, 21 So.3d 81, 83–84 (Fla. 3d DCA

2009).

The sanctions in this order are coercive

and civil in nature, as the order is clearly

intended to prompt Creative Choice to comply

with the earlier order compelling production

of the FIS and also contains a purge provision

allowing Creative Choice to avoid future fines

and incarceration by complying with the

delineated terms. In addition to requiring the

mandatory purge provision that is the

hallmark

[137 So.3d 1147]

of all civil sanctions, coercive civil sanctions

in the form of a civil fine also require a

consideration of the contemnor's financial

resources and ability to pay the fine assessed.

Parisi, 769 So.2d at 366. A consideration of

the contemnor's financial situation is

especially important where, as here, a failure

to pay the assessed fine will result in

incarceration.

The trial court, while apparently well-

intentioned, abused its discretion by entering

this sanction order because it gave Creative

Choice no grace period in which to comply

with the order before sanctions would be

imposed and because it completely failed to

consider Creative Choice's financial

resources. Although per diem fines are a

perfectly acceptable coercive sanction, Parisi,

769 So.2d at 365, a contemnor must be given

a reasonable opportunity to purge the

contempt before such fines are imposed. See

The Fla. Bar v. Forrester, 916 So.2d 647, 651

(Fla.2005) (“[T]he hallmark of civil contempt

is a purge provision allowing the contemnor

to avoid the sanction imposed by complying


-3-

with the court order.”) (emphasis added);

Berlow, 21 So.3d at 83 (“[The sanctions] must

contain a purge provision that affords the

contemnor the opportunity to avoid the

sanction.”) (emphasis added) (quoting Lewis

v. Nical of Palm Beach, Inc., 959 So.2d 745,

752 (Fla. 4th DCA 2007)). Assessing a fine the

very day the contempt order is filed gives the

contemnor no ability to purge the contempt

before such fines are levied, and becomes

closer in nature to a criminal sanction by

imposing the fine punitively for failing to

follow court orders, rather than serving a

coercive purpose by incentivizing compliant

behavior.

In Compagnoni v. Compagnoni, 619

So.2d 450, 451 (Fla. 3d DCA 1993), this Court

held that “the order must also contain a

reasonable period of time within which the

[contemnor] may purge himself of contempt.”

While the Compagnoni Court recognized

there may be an exceptional case in which the

contemnor has the present ability to comply

with the purge provision forthwith, there was

no such showing in that case. Id. at 451 n. 2.

Such a showing has not been made in this

case either.

The trial court's contempt order in the

instant case gave Creative Choice no real

opportunity to comply with the order before

sanctions were imposed. Furthermore,

Creative Choice had a pending motion for

relief from the order compelling production

of the FIS when the contempt order was

entered. This was not a situation in which

Creative Choice knew that it would be

sanctioned if it did not comply; rather,

Creative Choice made a good faith effort to

explain why the sanction should not be

imposed. When the trial court was

unpersuaded by Creative Choice's argument,

it gave Creative Choice no reasonable

opportunity to comply with the trial court's

order. We therefore find that the coercive civil

fine that was assessed was improper.

The trial court also failed to make any

findings or consider Creative Choice's ability

to pay the per diem fines, as is required under

Florida law. Parisi, 769 So.2d at 366;see also

Whitby v. Infinity Radio, Inc., 961 So.2d 349,

352–54 (Fla. 4th DCA 2007) (affirming a

$100,000 sanction award because the trial

court held an evidentiary hearing to

determine whether the contemnor had the

present ability to pay). While the trial court

need not conduct an evidentiary hearing or

make precise calculations in every case,

Channel Components, Inc. v. Am. II Elecs.,

Inc., 915 So.2d 1278, 1284 (Fla. 2d DCA

2005) (finding that “there is no requirement

that the amount of a fine coincide with some

strict element of proof of damages or losses

[137 So.3d 1148]

caused by the noncompliance”), there must be

some indication in the record that the trial

court considered the contemnor's ability to

comply with the sanction, especially when the

payment of those assessments is necessary to

avoid incarceration. Nothing in this record,

however, evidences even the slightest

consideration of Creative Choice's present

ability to comply with the per diem

assessments. Thus, the sanctions order does

not comply with the essential requirements of

the law.

Because the trial court did not afford

Creative Choice a reasonable time to purge its

contempt before imposing sanctions, and

because it did not consider Creative Choice's

present ability to pay those coercive

sanctions, the trial court abused its discretion

and departed from the essential requirements

of the law by assessing the immediate per

diem fines. The sanctions imposed do not

meet the requirements for criminal sanctions,

and cannot be supported as proper coercive

civil sanctions. Accordingly, we reverse the

order imposing sanctions and remand for the

trial court to consider whether Creative

Choice has fully complied with the order

compelling production of the FIS and, if it has


-4-

not, the trial court may sanction Creative

Choice. If the trial court imposes a coercive

civil sanction, the trial court's order must

contain a purge provision; the trial court must

determine that Creative Choice has the

present ability to pay the fine that will be

levied if Creative Choice fails to purge its

contempt; and the trial court must provide

Creative Choice with a reasonable amount of

time to purge its contempt before any

sanction is imposed.

Reversed and remanded with

instructions.

De Vaux v. Westwood Baptist Church, 953 So.2d 677 (Fla. App., 2007)

-1-

953 So.2d 677 David DE VAUX, Appellant,

v.

WESTWOOD BAPTIST CHURCH,

Appellee. No. 1D06-2666.


First District. April 4, 2007.

[953 So.2d 679]

Richard S. Johnson, Destin, for

Appellant.

Jennifer Hanson Copus, Dowd Law Firm,

Destin, for Appellee.

VAN NORTWICK, J.

David de Vaux appeals a final judgment

dismissing with prejudice his complaint

seeking specific performance of an alleged

"real estate purchase agreement" with

Westwood Baptist Church (Westwood),

appellee. We agree with the trial court that

the writings comprising the alleged

agreement fail to include essential terms of an

enforceable contract for the purchase of real

property. Thus, we agree that the complaint

fails to state a cause of action for specific

performance, and we affirm. Further, because

the arguments raised by de Vaux on appeal

are completely unsupported by the

application of the law, we find this appeal

frivolous and grant Westwood's motion for

appellate attorney's fees pursuant to section

57.105, Florida Statutes (2005).

De Vaux's complaint for specific

performance alleges, in pertinent part, as

follows:

5. Defendant is interfering with the

Plaintiff's equitable right to possession of the

real property.

6. On or about May 29, 2005, Plaintiff

and Defendant entered into a Real Estate

Purchase Agreement, (the "Agreement") for

the purchase of property located in Okaloosa

County described as: Oakland ADD LOTS 1, 2,

9 & 10 EXC. N60 FT. LOT 10 BLK. 2,

Okaloosa County, Florida. A copy of the

contract is attached hereto and referenced as

Exhibit "A" as if incorporated herein.

7. The purchase price of the property set

forth in the agreement was $535,000.00.

* * *

9. Plaintiff has performed all conditions

precedent to the "Agreement" or they have

occurred.

10. Notwithstanding this, Defendant has

failed and refused to perform Defendant's

part of the "Agreement."

11. Plaintiff does not have an adequate

remedy at law.

[953 So.2d 680]

12. Plaintiff is in possession of the real

property by way of equity.

Exhibit A incorporated into the

complaint consists of two one-page

documents. The first document is a letter

dated May 19, 2005, from de Vaux to

Westwood offering to purchase a parcel of

real property. In material part, the letter

states:

I am proposing an offer to buy from

Westwood Baptist Church of 401 NW

Hollywood Blvd. 60,000 sq. feet of property.

The property would consist of 200 ft. located

on Hollywood Blvd. by 300 ft. deep. I am

offering $535,000.00 for the property subject

to the following terms.

1. Buyer will pay for all closing costs

including loan costs, City of FWB

Administration fees, Water and Sewer fees,


-2-

Impact fees and Comprehensive Plan review

fees.

2. After signing a contract of good faith

buyer will have 45 days to do a feasibility

study on the property. The property would be

subject to the zoning being R-2 and be

consistent with the Comprehensive Plan of

Fort Walton Beach. The property must be

approved to hold 24 units.

3. The above-mentioned property is

presently not in compliance with the

Comprehensive Plan. Westwood Baptist

Church and buyer would work together in full

cooperation to change the Comprehensive

Plan concerning the above land. Buyer will do

necessary paperwork involved in changing

Comprehensive Plan.

4. We would close on the property 30

days after the city of Fort Walton Beach

approves a development order.

5. Westwood Baptist Church would

finance the property at 1/2 percent under

prime at the time of closing. Buyer would pay

interest payments quarterly. This contract

will take precedent until a more detailed legal

contract can be drawn up stating terms,

conditions, dates and financing.

The second document that makes up

Exhibit A is the handwritten minutes of a

special church business meeting of Westwood

held on May 29, 2005. These minutes

provide:

Tuesday, May 29, 2005

A special church business meeting was

called. With all known members being

notified by mail.

Pastor Art Johnson called the meeting to

order at the close of the morning service.

(11:50 a.m.).

After making it clear to the body, the

purpose of the meeting, a motion was called

for, by the moderator.

A motion was made to sell the churches'

vacant lot, 200' x 300' on Hollywood Blvd., to

Mr. David de Vaux, accepting his off [sic]

(attached), with the Trustees of the church

being authorized to work out all the details.

Motion seconded and carried.

Art Johnson, Moderator

Shirley Johnson, Clerk

The complaint contains no allegations

that a trustee or agent of Westwood ever

communicated to de Vaux the church's

acceptance of his offer or the terms of the

"details" to be worked out between the

parties.

Westwood moved to dismiss on the

ground that de Vaux's complaint failed to

state a cause of action because, among other

things,

A meeting of the minds of the parties in

all essential elements is a prerequisite to an

existence of an enforceable contract, and

where it appears, as in the present case that

parties are continuing to negotiate as to the

essential terms of an agreement, there can be

no meeting of the minds.

[953 So.2d 681]

The record does not reflect whether de

Vaux sought leave to amend his complaint.

The trial court summarily dismissed the

complaint with prejudice.

De Vaux appeals this judgment arguing

that the letter and minutes, read together, set

forth all essential terms of an agreement, and,

thus, the complaint does properly state a

cause of action for breach of contract and

specific performance. He claims that he made


-3-

a valid offer and that his offer was accepted

unconditionally by the church. Westwood

argues in response that the documents

comprising Exhibit A do not show a meeting

of the minds as to the essential terms of an

enforceable agreement for the purchase of

real property, that Westwood's minutes show

that issues remained to be negotiated and

that the complaint does not allege that an

acceptance of the offer was communicated to

de Vaux. Thus, Westwood asserts, the

complaint seeking specific performance was

properly dismissed. Westwood also seeks an

award of attorney's fees pursuant to section

57.105.

The sufficiency of a complaint in a civil

action is a question of law, Rittman v. Allstate

Insurance Co., 727 So.2d 391 (Fla. 1st DCA

1999); McKinney-Green, Inc. v. Davis, 606

So.2d 393 (Fla. 1st DCA 1992), and our

standard of review is de novo. Steuart

Petroleum Co. v. Certain Underwriters at

Lloyd's London, 696 So.2d 376 (Fla. 1st DCA

1997). Our review here is limited to the

allegations within the four corners of the

complaint and the attachments incorporated

into the complaint. Rudloe v. Karl, 899 So.2d

1161, 1164 (Fla. 1st DCA 2005). Further, we

are obligated to accept the allegations as true

and consider them in a light most favorable to

the non-moving party. Magnum Capital, LLC

v. Carter & Assocs., LLC, 905 So.2d 220 (Fla.

1st DCA 2005); Bell v. Indian River Mem'l

Hosp., 778 So.2d 1030 (Fla. 4th DCA 2001).

Thus, we review the sufficiency of the

complaint on the assumption that the facts

are as the plaintiff below alleged. Rudloe, 899

So.2d at 1164.

To have an enforceable contract for the

purchase of real property, the statute of

frauds1 requires the contract to satisfy two

threshold conditions. First, the contract must

be embodied in one or more written

documents or memoranda signed by the party

against whom enforcement is sought.2

Second, the writings must include all of the

essential terms of the purchase and sale, and

those terms may not be provided by resort to

parol evidence. Socarras v. Claughton Hotels,

Inc., 374 So.2d 1057, 1059 (Fla. 3d DCA

1979). The issue presented in this case is

whether the alleged agreement contains the

essential terms of a contract for the purchase

and sale of real property. "[A] meeting of the

minds of the parties on all essential elements

is a prerequisite to the existence of an

enforceable contract, and where it appears

that the parties are continuing to negotiate as

to essential terms of an agreement, there can

be no meeting of the minds." Central Props.,

Inc. v. Robbinson, 450 So.2d 277, 280 (Fla.

1st DCA 1984), modified on other grounds,

[953 So.2d 682]

468 So.2d 986 (Fla.1985); accord Irby v.

Mem'l Healthcare Group, Inc., 901 So.2d

305, 306 (Fla. 1st DCA 2005); Allen v. Berry,

765 So.2d 121 (Fla. 5th DCA 2000); Drost v.

Hill, 639 So.2d 105 (Fla. 3d DCA 1994); 777

Flagler Co. v. Amerifirst Bank, 559 So.2d

1210 (Fla. 4th DCA 1990); Balter v. Pan Am.

Bank of Hialeah, 383 So.2d 256 (Fla. 3d DCA

1980); Brown v. Dobry, 311 So.2d 159 (Fla.

2d DCA 1975). "In order for a contract to be

subject to specific performance, it must

appear from the writing constituting the

contract that the obligations of the parties

with respect to [the] conditions of the

contract and actions to be taken by the parties

are clear, definite and certain." Brown v.

Dobry, 311 So.2d at 160; accord Drost v. Hill,

639 So.2d at 106; Lasseter v. Dauer, 211

So.2d 584, 585 (Fla. 3d DCA 1968); see also

Bay Club, Inc. v. Brickell Bay Club, Inc., 293

So.2d 137, 139 (Fla. 3d DCA 1974). Further,

the acceptance of the offer must be

communicated to the offeror. Kendel v.

Pontious, 261 So.2d 167, 169-70 (Fla.

1972)("An acceptance, . . . which only remains

in the breast of the acceptor without being

communicated to the offeror, is no binding

acceptance."). We agree with the trial court

that the purported agreement here fails to

include essential elements of a contract for

the purchase and sale of real property.


-4-

As a general rule, "[t]here is no definitive

list of essential terms that must be present

and certain to satisfy the statute of frauds

[and] the essential terms will vary widely

according to the nature and complexity of

each transaction and will be evaluated on a

case-by-case basis. . . ." Socarras v.

Claughton Hotels, Inc., 374 So.2d at 1060;

see also Giovo v. McDonald, 791 So.2d 38, 40

(Fla. 2d DCA 2001)("Certainly, what is an

`essential term' of a contract differs according

to the circumstances."). We find it obvious

that the de Vaux letter and the Westwood

minutes, read together, omit essential terms

required to establish an enforceable contract

for the purchase of real property. The most

conspicuous omissions relate to the financing

terms. Paragraph five of the de Vaux letter

requires that Westwood provide de Vaux

purchase money financing. Essential terms of

the financing, however, are not included in

the purported agreement, such as the date of

the maturity of any promissory note, whether

the quarterly payments of the debt would

include any amortization of principal, and

whether the financing would be secured by a

mortgage on the subject property or other

assets of de Vaux. See, e.g., Philbrick v.

Wedel, 411 So.2d 973 (Fla. 3d DCA

1982)(holding that financing portion of

agreement was too indefinite in its terms to

be susceptible to specific performance).

In addition, while the Westwood minutes

do evince the church's interest in selling its

property to de Vaux, the minutes also

authorize trustees of the church to "work out

all the details," indicating that issues

remained to be negotiated before a definite

agreement would be executed. Finally, the

complaint does not allege that trustees or

agents of Westwood have at any time

communicated to de Vaux their acceptance of

his offer. See Kendel v. Pontious, 261 So.2d at

169-70. Accordingly, we affirm the order of

dismissal because the complaint wholly fails

to state a cause of action for specific

performance of a contract for the purchase of

real property.

We also grant Westwood's motion for

appellate attorney's fees pursuant to section

57.105.3 We take this opportunity

[953 So.2d 683]

to explain our decision to award fees in this

case.

Florida lawyers have both ethical and

statutory duties not to file actions, including

appeals, that are not supported by the

application of the governing law. The ethical

duty prohibiting "frivolous" proceedings is

imposed by rule 4-3.1, Rules Regulating The

Florida Bar (2006).4 The statutory duty

prohibiting claims not supported by "the

application of then-existing law to [the]

material facts . . . necessary to establish the

claim . . ." is imposed by section 57.105(1).5 It

is not certain that the standard for

determining whether an action is frivolous

under rule 4-3.1 is substantially the same as

the standard for awarding fees under section

57.105(1), an issue that we do not reach.6

We acknowledge that "to some extent,

the definition of `frivolous' is incapable of

precise determination." Wendy's of N.E.

Florida, Inc. v. Vandergriff, 865 So.2d 520,

524 (Fla. 1st DCA 2003)(quoting Visoly v.

Security Pacific Credit Corp., 768 So.2d 482,

491 (Fla. 3d DCA 2000)). The Restatement

does provide some definitional guidance,

however, by explaining that "[a] frivolous

position is one that a lawyer of ordinary

competence would recognize as so lacking in

merit that there is no substantial possibility

that the tribunal would accept it."

Restatement (Third) of Law Governing

Lawyers § 110, cmt. d. (2000). In addition,

under Florida law

there are established guidelines for

determining when an action is frivolous.

These include where a case is found: (a) to be

completely without merit in law and cannot

be supported by a reasonable argument for an

extension, modification or reversal of existing


-5-

law; (b) to be contradicted by overwhelming

evidence; (c) as having been undertaken

primarily to delay or prolong the resolution of

the litigation, or to harass or maliciously

injure another; or (c) [sic] as asserting

material factual statements that are false.

Wendy's, 865 So.2d at 524 (quoting

Visoly, 768 So.2d at 491). Under the ethics

rules,

[953 So.2d 684]

"[w]hat is required of lawyers . . . is that they

inform themselves about the facts of their

clients' cases and the applicable law and

determine that they can make good faith

arguments in support of their clients'

positions." Comment, rule 4-3.1.

Section 57.105(1) mandates a court to

award fees to the prevailing party in equal

amounts to be paid by the losing party and

the losing party's attorney where the court

finds that the losing party or the losing party's

attorney knew or should have known that a

claim was, among other things, not supported

by the application of then-existing law to the

material facts relating to the claim. §

57.105(1)(b), Fla. Stat. Based on the

allegations of the complaint and the writings

attached to the complaint as Exhibit A, we

find that the complaint and this appeal are

wholly without merit. De Vaux's claim for

specific performance is objectively meritless

in that, given the obvious omission of

essential terms from the writings that

allegedly constitute the agreement, no

reasonable lawyer knowledgeable about the

law governing this action could have expected

to obtain specific performance based on these

writings or could have expected to obtain

reversal of the trial court's ruling in an

appeal. Since the law applicable to this case is

clear and well-settled, de Vaux and his lawyer

knew or should have known that the relief

sought in the complaint and the arguments

presented to this court asserting grounds for

specific performance were not supported by

the application of the law. See § 57.105(1)(b),

Fla. Stat. Moreover, de Vaux has made no

effort to distinguish the applicable law or, in

good faith, to argue for an extension,

modification or reversal of existing law. See

Mercury Ins. Co. of Florida v. Coatney, 910

So.2d 925, 927 (Fla. 1st DCA 2005)(noting

that appellant's initial brief made no

reference to a "good faith effort to change

existing law" regarding appellant's liability

and thus appellant was subject to attorney's

fees pursuant to section 57.105). By making

frivolous claims, de Vaux and his lawyer

imposed needless burdens on both Westwood

and the courts. Westwood was obligated to

incur substantial expense defending de Vaux's

claims in the trial court and on appeal, and

the judicial system was required to expend its

resources to address the meritless claims.

This case is not an instance of a court

chilling creative lawyering. See generally,

Monroe H. Freedman & Abbe Smith,

Understanding Lawyer's Ethics 97-8

(Matthew Bender 2004). Certainly, lawyers

are expected to be zealous advocates for the

interests of their clients.7 They are also

officers of the court,8 however, even though

these two roles may sometimes appear to be

in conflict. See generally, Eugene R. Gaetke,

Lawyers as Officers of the Court, 42 Vand.

L.Rev. 39, 40 (1989). As an officer of the

court, among other things, a lawyer must not

file frivolous claims, rule 4-3.1, Rules

Regulating The Florida Bar, or unnecessarily

burden third parties, rule 4-4.4. See

generally, David B. Wilkins, Who Should

Regulate Lawyers?, 105 Harv. L.Rev. 799,

815 (1992). Said another way,

[953 So.2d 685]

an attorney has a duty to refrain from

advocacy, such as filing frivolous claims,

which undermines or interferes with the

functioning of the judicial system. See

Malautea v. Suzuki Motor Co., Ltd., 987 F.2d

1536, 1546 (11th Cir.1993)("An attorney's duty

to a client can never outweigh his or her


-6-

responsibility to see that our system of justice

functions smoothly. This concept is as old as

common law jurisprudence itself."). A lawyer

who files a frivolous lawsuit or a meritless

appeal on the instructions of the client

without informing the client of the weakness

of the claim is violating both a duty to serve

the client's interests and a duty to the judicial

system. See generally, Mullins v. Kennelly,

847 So.2d 1151, 1154 (Fla. 5th DCA 2003).

Because we find that de Vaux and his

lawyer made objectively groundless

arguments on appeal, a monetary sanction is

appropriate here. As we did in Smith v. Gore,

933 So.2d 567, 568 (Fla. 1st DCA 2006), "[w]e

again remind the bar that section 57.105

expressly states courts `shall' assess

attorney's fees for bringing, or failing to

timely dismiss, baseless claims or defenses."

See also Albritton v. Ferrera, 913 So.2d 5, 8-9

(Fla. 1st DCA 2005)(noting that the word

"shall" in section 57.105 evidences "the

legislative intent to impose a mandatory

penalty in the form of reasonable attorney's

fees to discourage baseless claims, by placing

a price tag on losing parties who engage in

these activities"). We believe that applying

sanctions in cases such as this will protect this

court's ability to serve litigants with

meritorious cases, will encourage lawyers to

give thoughtful consideration as to whether

there are non-frivolous grounds for an appeal

before filing, and will discourage lawyers

from raising meritless appellate arguments on

the chance that they will "stick." "The filing of

an appeal should never be a conditioned

reflex. `About half the practice of a decent

lawyer consists in telling would-be clients that

they are damned fools and should stop.'" Hill

v. Norfolk & Western Ry. Co., 814 F.2d 1192,

1202 (7th Cir.1987)(quoting 1 Jessup, Elihu

Root 133 (1938)).9

Accordingly, the final judgment is

AFFIRMED, and the cause is REMANDED to

the trial court for the assessment of attorney's

fees to be paid in equal parts by de Vaux and

de Vaux's counsel, Richard S. Johnson.

BARFIELD and THOMAS, JJ., concur.

---------------

Notes:

1. The statute of frauds, section 725.01,

Florida Statutes (2005), provides, in

pertinent part:

No action shall be brought whereby to

charge . . . any person . . . upon any contract

for the sale of lands, . . . unless the agreement

or promise upon which such action shall be

brought, or some note or memorandum

thereof shall be in writing and signed by the

party to be charged therewith. . . .

2. Several writings may be aggregated to

satisfy the requirements of the statute. Kolski

ex rel. Kolski v. Kolski, 731 So.2d 169, 171

(Fla. 3d DCA 1999).

3. We are limited in our authority to impose

sanctions under section 57.105(1) to granting

fees for conduct occurring on appeal. Boca

Burger, Inc. v. Forum, 912 So.2d 561, 569

(Fla.2005).

4. Rule 4-3.1 provides, in part, that "[a]

lawyer shall not bring or defend a proceeding,

or assert or controvert an issue therein,

unless there is a basis in law and fact for

doing so that is not frivolous, which includes

a good faith argument for an extension,

modification, or reversal of existing law."

5. Section 57.105, Florida Statutes, provides,

in pertinent part:

(1) Upon the court's initiative or motion

of any party, the court shall award a

reasonable attorney's fee to be paid to the

prevailing party in equal amounts by the

losing party and the losing party's attorney on

any claim or defense at any time during a civil

proceeding or action in which the court finds

that the losing party or the losing party's

attorney knew or should have known that a


-7-

claim or defense when initially presented to

the court or at any time before trial:

(a) Was not supported by the material

facts necessary to establish the claim or

defense; or

(b) Would not be supported by the

application of then-existing law to those

material facts.

6. We have previously explained:

While the revised statute incorporates

the "not supported by the material facts or

would not be supported by application of

then-existing law to those material facts"

standard instead of the "frivolous" standard

of the earlier statute, an all encompassing

definition of the new standard defies us. It is

clear that the bar for the imposition of

sanctions has been lowered, but just how far

it has been lowered is an open question

requiring a case by case analysis. . . .

Wendy's of N.E. Florida, Inc. v.

Vandergriff, 865 So.2d 520, 524 (Fla. 1st

DCA 2003)(quoting Mullins v. Kennelly, 847

So.2d 1151, 1155 n. 4 (Fla. 5th DCA 2003)).

7. "A lawyer . . . may take whatever lawful and

ethical measures are required to vindicate a

client's cause or endeavor. A lawyer should

act with commitment and dedication to the

interests of the client and with zeal in

advocacy upon the client's behalf." Comment,

rule 4-1.3, Rules Regulating The Florida Bar.

8. "A lawyer is . . . an officer of the legal

system, and a public citizen having special

responsibility for the quality of justice."

Preamble, Chapter 4, Rules Regulating The

Florida Bar.

9. Lawyer-statesman Elihu Root was

secretary of war to President William

McKinley, secretary of state to President

Theodore Roosevelt, United States senator,

and recipient of the Nobel Peace Price. See

http://nobel prize.org/nobel_prizes/

laureates/1912/root-bio.html. Root's blunt

statement, quoted above by the Seventh

Circuit, demonstrates his view that lawyers

should exercise professional detachment and

assert moral influence in giving advice the

client may not want to hear. See Bruce A.

Green, Thoughts About Corporate Lawyers

After Reading the Cigarette Papers: Has the

"Wise Counselor" Given Way to the "Hired

Gun"?, 51 DePaul L.Rev. 407, 411-412 (2001).

As Professor Deborah Rhode has explained in

more scholarly language:

The stress, acrimony, and financial

pressures that can accompany legal disputes

often compromise clients' ability to perceive

their own long-term interests or the ethical

implications of self-serving behavior. . . . At

the very least, lawyers can provide a useful

reality check for individuals whose judgment

is skewed by self-interest or cognitive biases.

Deborah L. Rhode, Moral Counseling, 75

Fordham L.Rev. 1317, 1320 (2006).

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