FOURTH DISTRICT COURT OF APPEALS

LOWER CASE NO.: 10-21842 CACE13

4DCA CASE NO.: 4D11-1909

MAX R. WHITNEY and
MAX R. WHITNEY, P.A.,

Appellants,

v.

FRANCISCO DESOUZA,

Appellee.




ANSWER BRIEF OF FRANCISCO DESOUZA






DANIEL S. WEINGER, ESQ.
CONRAD & SCHERER, LLP
Attorneys for Appellant
P. O. Box 14723
Fort Lauderdale, FL 33302
Tel: (954) 462-5500
Fax: (954) 463-9244
ii
Table of Contents
Table of Contents ............................................................................................ ii
Table of Authorities ....................................................................................... iii
Points on Appeal ......................................................................................... v
Preface ............................................................................................................ 1
Statement of Case and Facts ........................................................................... 2
Summary of Argument ................................................................................... 5
Argument ........................................................................................................ 6
I. Standard of Review ............................................................................... 6
II. Because Judge Philips, Acting as a Substitute Judge, was not
Required to Weigh and Compare Testimony Taken By Her Predecessor,
She Acted Within the Scope of Her Authority and Did Not Abuse Her
Discretion by Ruling on Appellees Motion for Entitlement to Attorneys
Fees ............................................................................................................ 7
III. The Trial Court Did Not Abuse Its Discretion by Denying
Appellants Motion to Reconsider its Earlier Order on Entitlement to
Attorneys Fees ........................................................................................... 9
IV. The Trial Court Did Not Abuse Its Discretion in Setting the Amount
of Reasonable Attorneys Fees ................................................................. 10
Conclusion .................................................................................................... 12
Certificate of Service .................................................................................... 13
Certificate of Type Size and Style ................................................................ 13

iii
Table of Authorities
Cases
Alvord v. Alvord,
572 So. 2d 925 (Fla. 3d DCA 1990) ....................................................... 7, 8
Applegate v. Barnett Bank of Tallahassee,
377 So. 2d 1150 (Fla. 1979) ..................................................................... 10
Asinmaz v. Semrau,
42 So. 3d 955 (Fla. 4th DCA 2010) ............................................................ 7
Bettez v. City of Miami,
510 So. 2d 1242 (Fla. 3d DCA 1987) ....................................................... 10
Buckeye Check Cashing, Inc. v. Cardegna,
824 So. 2d 228 (Fla. 4th DCA 2002) .......................................................... 7
Cokonougher v. Cokonougher,
543 So. 2d 460 (Fla. 2d DCA 1989) ........................................................... 9
Commercial Garden Mall v. Success Acad., Inc.,
453 So. 2d 934 (Fla. 4th DCA 1984) .......................................................... 9
Gibbs Const. Co. v. S. L. Page Corp.
755 So. 2d 787 (Fla. 2d DCA 2000) ........................................................... 7
Gonzalez Engineering, Inc. v. Miami Pump & Supply Co.,
641 So. 2d 474 (Fla. 3d DCA 1994) ........................................................... 9
Greenfield v. Westmoreland,
2007 WL 518637 (Fla. 3d DCA February 21, 2007) .................................. 2
Hobbs v. Hobbs,
518 So. 2d 439 (Fla. 1st DCA 1988) .......................................................... 9
Hunter v. Dennies Contracting Co., Inc.,
693 So. 2d 615 (Fla. 2d DCA 1997) ......................................................... 10
Joachim v. Joachim,
942 So. 2d 3 (Fla. 5th DCA 2006) ............................................................ 11
Kirt v. Sharper,
940 So. 2d 1239 (Fla. 5th DCA 2006) ........................................................ 7
McIlveen v. McIlveen,
644 So. 2d 612 (Fla. 2d DCA 1994) ........................................................... 9
iv
Parlier v. Eagle-Picher Indus., Inc.
622 So. 2d 479 (Fla. 5th DCA 1993) .......................................................... 7
R.E. v. Department of Children and Families,
996 So.2d 929 (Fla. 4th DCA 2008) ........................................................... 2
Simpson v. Simpson,
780 So. 2d 985 (Fla. 5th DCA 2001) ........................................................ 11
Trans Atlantic Distributors, L.P. v. Whiland & Co., S.A.,
646 So. 2d 752 (Fla. 5th DCA 1994) .......................................................... 9
Winkelman v. Toll,
632 So. 2d 130 (Fla. 4th DCA 1994) .......................................................... 9
Yakavonis v. Dolphin Petroleum, Inc.
934 So. 2d 615 (Fla. 4th DCA 2006) .......................................................... 7
Rules
Fla. R. App. P. 9.110 ...................................................................................... 1
Fla. R. App. P. 9.210 ...................................................................................... 2
v
POINTS ON APPEAL
I. WHEHTER A SUBSTITUTE JUDGE
ABUSED THEIR DISCRETION BY RULING ON
APPELLEES MOTION FOR ENTITLEMENT TO
ATTORNEYS FEES

II. WHETHER THE TRIAL COURT ABUSED
ITS DISCRETION BY DENYING APPELLANTS
MOTION TO RECONSIDER ITS EARLIER
ORDER ON ENTITLEMENT TO ATTORNEYS
FEES

III. WHETHER THE TRIAL COURT ABUSED
ITS DISCRETION IN SETTING THE AMOUNT
OF REASONABLE ATTORNEYS FEES

1
Preface
This Answer Brief is submitted on behalf of FRANCISCO DESOUZA, an
individual and Broward County resident, Plaintiff below.
MAX R. WHITNEY AND MAX R. WHITNEY, P.A., have appealed,
pursuant to Fla. R. App. P. 9.110(a)(1), the following orders: 1) the trial courts
September 3, 2010, order on entitlement to attorneys fees; 2) the trial courts
February 8, 2011, order on amount of attorneys fees; and 3) the trial courts May
3, 2011, order denying Whitneys motion to reconsider the issue of entitlement.
Appellants, Max R. Whitney and Max R. Whitney, P.A., are referred to
collectively as Whitney, Defendants, or Appellants.
Appellee, Francisco DeSouza, is referred to as DeSouza, Plaintiff, or
Appellee.
The following symbols will be used:
I.B. ___ references are to the Initial Brief of Appellants.
Unless otherwise indicated, all emphasis is supplied by the writer.
2
Statement of Case and Facts
1

A. General Background
On May 21, 2010, DeSouza filed a Complaint against Whitney, an attorney,
for malicious prosecution. (R. 1-14.) DeSouza alleged that in an earlier case,
Whitney filed suit against him and sought to impose personal liability on DeSouza
for a dishonored corporate check despite clear Florida law demonstrating that no
individual liability could be established under the facts of the case. (R. 4.)
DeSouza further alleged that Whitney continued prosecution of the civil action
even after the contrary binding authority had been pointed out to him. (R. 4.)
After the case filed by Whitney was dismissed, DeSouza filed an action against
Whitney for malicious prosecution. (R. 1-14.) It is from DeSouzas malicious
prosecution Complaint that this appeal arises.
B. Whitney Files a Baseless Motion
to Dismiss
On June 14, 2010, Whitney filed a Motion to Dismiss DeSouzas Complaint.
(R. 15-24.) In the motion, rather than limiting his arguments to the allegations

1
Despite informing this Court in response to an order to show cause that the Initial Brief was not
timely served because Appellants were waiting for the clerk to finish preparing the record on
appeal, Appellants Statement of the Case and Facts does not contain a single factual statement
that is accompanied by a citation to the record. In fact, the majority of the statements in
Appellants Statement of the Case and Facts are either impermissibly argumentative or
unsupported by the record in any event. Accordingly, this Court should disregard any and all
statements contained in Appellants Statement of the Case and Facts that are not supported by
a corresponding record citation. See R.E. v. Department of Children and Families, 996 So.2d
929, 930 n.1 (Fla. 4th DCA 2008); Greenfield v. Westmoreland, 2007 WL 518637 (Fla. 3d DCA
February 21, 2007). See also Fla. R. App. P. 9.210(b)(3).
3
contained within the four corners of the Complaint, Whitney raised numerous
issues of fact and made material misrepresentations of Florida law. (R. 15-24.) On
August 4, 2010, after conducting a non-evidentiary hearing, Judge Jack Tutor
entered an Order Denying Whitneys Motion to Dismiss. (R. 43.)
C. DeSouza Files a Motion for
Entitlement of Attorneys Fees
DeSouza filed a Motion for Entitlement to Attorneys Fees under Florida
Statutes section 57.105 on the grounds that, in addition to arguing matters entirely
outside the four corners of the Complaint, Whitney knew or should have known
that the claims asserted or attempted to be asserted in the Motion to Dismiss (a)
were not supported by the material facts necessary to establish same, and/or (b)
were not supported by the application of existing law to the material facts. (R. 25-
35, 36-39.) Specifically, Whitney had claimed in his Motion to Dismiss that the
earlier suit against DeSouza individually was proper because the corporation had
been administratively dissolved based upon DeSouzas alleged untimely filing of
its annual report. (R. 15-24). Similar to the events during the course of the
original lawsuit brought by Whitney, DeSouza informed Whitney that the
controlling Florida statute unequivocally states that the annual reports are timely so
long as they are filed between January 1 and May 1 of the applicable year. (R. 4,
25-35, 36-39.) Suit against DeSouza individually was accordingly improper
4
because, by filing the annual report on April 30, DeSouza ensured that the
corporation remained solvent. (R. 25-35, 36-39.)
On September 3, 2010, after conducting a non-evidentiary hearing,
substitute Judge Carol-Lisa Phillips entered an Order granting DeSouzas Motion
for Attorneys Fees. (R. 55-56.) In the Order, Judge Phillips specifically found
that the applicable statute clearly and unequivocally supported DeSouzas
position and that Whitney was alerted to the mistake on June 25, 2010 and chose
not to withdraw or try to correct his motion. (R. 55-56.) Shortly thereafter,
Whitney filed a motion to reconsider, although he titled same as a Motion for
Rehearing. (R. 57-58.) On May 3, 2011, Judge Phillips issued an order
reaffirming her earlier order on entitlement to attorneys fees and denying
Whitneys motion to reconsider. (R. 466.)
D. A Successor Judge Determines a
Reasonable Amount of Fees
On September 23, 2010, Judge Tutor issued a sua sponte order of recusal,
with the case being transferred to Judge Marc Gold. (R. 143, 423.) Prior to the
evidentiary hearing on the amount of attorneys fees, DeSouza filed the sworn
affidavit of an expert witness, Steven Osber. Mr. Osber calculated that the
adjusted time and fees totaling 30.2 hours and $5,540.00 in fees are both
reasonable and directly related to litigating Defendants Motion to Dismiss. (R.
413-418.) Osber did not include the reasonable fees for his own services in that
5
estimate. (R. 413-418.) On February 8, 2011, after conducting an evidentiary
hearing, the trial court entered an order awarding DeSouza $4,575.00 in attorneys
fees. (R. 423.) This amount included $1,350.00 in fees to DeSouzas expert
witness, Steven Osber, and $3,225.00 to DeSouzas attorneys. (R. 423.) The
transcript of the evidentiary hearing on amount of fees is not a part of the record on
appeal. (R. 1-487.)
Whitney has appealed three orders: 1) Judge Phillipss September 3, 2010,
order on entitlement to attorneys fees; 2) Judge Golds February 8, 2011, order
on amount of attorneys fees; and 3) Judge Phillipss May 3, 2011, order denying
Whitneys motion to reconsider the issue of entitlement. (R. 483-487.)
Summary of Argument
Appellants claim that Judge Philips, as a substitute judge, did not have the
authority to rule on Appellees motion for attorneys fees. This argument cannot
withstand even a cursory review. In Florida, a substitute or successor judge may
complete any act left uncompleted by his predecessor so long as they are not
required to weigh and compare testimony heard before the other judge. Here,
Judge Phillips was simply asked to rule on the legal arguments of the parties as to
the issue of entitlement to attorneys fees. Although a different judge issued the
order denying the Motion to Dismiss that precipitated the motion for fees, that
issue was resolved without an evidentiary hearing. Thus, Judge Phillips was never
6
asked to weigh and compare any testimony heard before the prior judge.
Accordingly, Judge Phillips did not abuse her discretion in ruling on Appellees
motion for attorneys fees.
For the same reason, Judge Phillips did not abuse her discretion in denying
Appellants motion to reconsider her earlier ruling on entitlement. Additionally,
although a trial court has the inherent authority to reconsider any of its non-final
rulings, its decision not to exercise that authority is generally not reviewable.
Finally, Appellants have failed to provide any record support for their
contention that the trial court abused its discretion in calculating the amount of
attorneys fees. In fact, the only evidence in the record is the uncontested affidavit
of DeSouzas fee expert, Steven Osber, which actually estimated fees at a higher
amount than what the trial court awarded. Moreover, Appellants failure to
provide an adequate record is in and of itself fatal to their appeal as to the amount
of the attorneys fees award.
Argument
I. STANDARD OF REVIEW
Throughout the Initial Brief, Appellants claim that the trial court erred as a
matter of law. However, an order of a trial court granting attorneys fees under
Florida Statutes section 57.105 is not reviewed de novo, but under the substantially
stricter abuse of discretion standard. See Asinmaz v. Semrau, 42 So. 3d 955, 957
7
(Fla. 4th DCA 2010) (citing Yakavonis v. Dolphin Petroleum, Inc., 934 So. 2d 615,
618 (Fla. 4th DCA 2006)). A trial courts order as to the amount of fees is likewise
reviewed under an abuse of discretion standard. See Gibbs Const. Co. v. S. L. Page
Corp., 755 So. 2d 787, 790 (Fla. 2d DCA 2000).
II. BECAUSE JUDGE PHILIPS, ACTING AS A
SUBSTITUTE JUDGE, WAS NOT REQUIRED TO
WEIGH AND COMPARE TESTIMONY TAKEN BY
HER PREDECESSOR, SHE ACTED WITHIN THE
SCOPE OF HER AUTHORITY AND DID NOT ABUSE
HER DISCRETION BY RULING ON APPELLEES
MOTION FOR ENTITLEMENT TO ATTORNEYS
FEES
Appellants claim that Judge Philips, as a substitute judge, did not have the
authority to rule on Appellees motion for attorneys fees. First, Appellants failed
to preserve this issue as it was never raised either before or at the hearing on the
motion for entitlement to attorneys fees. See Parlier v. Eagle-Picher Indus., Inc.,
622 So. 2d 479, 481 (Fla. 5th DCA 1993) (recognizing the general rule of
appellate review, based on practical necessity and fairness to the opposing party
and the trial judge, that issues not timely raised below will not be considered on
appeal). See also Buckeye Check Cashing, Inc. v. Cardegna, 824 So. 2d 228, 229
(Fla. 4th DCA 2002) approved, 930 So.2d 610 (Fla. 2006) (citing Parlier).
Moreover, Appellants argument is completely belied by their own authority.
Specifically, Appellants cite to Alvord v. Alvord, 572 So. 2d 925 (Fla. 3d DCA
8
1990), and Kirt v. Sharper, 940 So. 2d 1239 (Fla. 5th DCA 2006), for the
proposition that a successor judge may complete any act left uncompleted by
his predecessor, if the successor is not required to weigh and compare testimony
heard before the other judge. I.B. at 11 (quoting Alvord). This is precisely what
happened here. By its very essence, in ruling on Appellants motion to dismiss,
Judge Tutor was not required to weigh testimony or take evidence. Rather, Judge
Tutor merely had to consider the legal arguments of the parties based upon the
contents contained within the four corners of the Complaint. By Appellants logic,
a substitute judge would never be permitted to take any actions in a case, thereby
rendering the use of substitute judges meaningless.
The cases cited by Appellants do not concern purely legal arguments based
on the pleadings, but involve a substitute or successor judge who relied on
transcripts from evidentiary hearings conducted by their predecessor in ruling on a
pending motion. Appellants do not, and cannot, claim that any testimony was
introduced regarding Appellees motion for entitlement to attorneys fees, either
before or after the issue came before Judge Philips. Accordingly, Judge Philips
was authorized to rule upon the motion for entitlement to attorneys fees based
upon the legal arguments presented in the papers and at the motion hearing. In
fact, this appears to be a textbook example of a situation where a successor judge is
not only permitted, but encouraged to rule upon a previously unresolved motion.
9
III. THE TRIAL COURT DID NOT ABUSE ITS
DISCRETION BY DENYING APPELLANTS MOTION
TO RECONSIDER ITS EARLIER ORDER ON
ENTITLEMENT TO ATTORNEYS FEES
Because, as set forth supra, the trial court was acting within its authority as a
substitute judge when ruling on Appellees motion for entitlement to attorneys
fees, it did not abuse its discretion for failing to reconsider the motion for
attorneys fees based upon the argument that Judge Philips was not permitted to
make the original ruling.
Appellants mistakenly refer to having filed a motion for rehearing. An
order granting a motion on entitlement to attorneys fees is non-final. See
McIlveen v. McIlveen, 644 So. 2d 612, 612 (Fla. 2d DCA 1994) (citing Gonzalez
Engineering, Inc. v. Miami Pump & Supply Co., 641 So. 2d 474 (Fla. 3d DCA
1994); Winkelman v. Toll, 632 So. 2d 130 (Fla. 4th DCA 1994); Trans Atlantic
Distributors, L.P. v. Whiland & Co., S.A., 646 So. 2d 752 (Fla. 5th DCA 1994);
Hobbs v. Hobbs, 518 So. 2d 439 (Fla. 1st DCA 1988). Accord Cokonougher v.
Cokonougher, 543 So. 2d 460 (Fla. 2d DCA 1989). The Florida Rules of Civil
Procedure do not permit a party to seek rehearing of a non-final order. See
Commercial Garden Mall v. Success Acad., Inc., 453 So. 2d 934, 935 (Fla. 4th
DCA 1984) (a non-final order is not subject to a petition for rehearing).
Accordingly, despite the misnomer, Appellants motion for rehearing was
actually nothing more than a motion to reconsider. See Bettez v. City of Miami,
10
510 So. 2d 1242, 1243 (Fla. 3d DCA 1987) (The fact that the defendant
mislabeled his motion as a motion for rehearing . . . cannot change this result as
the motion was, in substance, a proper motion for reconsideration). Although a
trial court has the inherent authority to reconsider any of its non-final rulings, its
decision not to exercise that authority is generally not reviewable. See Hunter v.
Dennies Contracting Co., Inc., 693 So. 2d 615, 616 (Fla. 2d DCA 1997).
Accordingly, the May, 3, 2011, order denying Appellants motion for
reconsideration is not reviewable by this Court.
In any event, for the reasons set forth in sub-heading II, the trial court did
not abuse its discretion in failing to reconsider the issue of entitlement based upon
Judge Philipss status as a substitute judge.
IV. THE TRIAL COURT DID NOT ABUSE ITS
DISCRETION IN SETTING THE AMOUNT OF
REASONABLE ATTORNEYS FEES
Appellants have failed to provide any record support for their contention that
the trial court abused its discretion in calculating the amount of attorneys fees. In
appellate proceedings the decision of a trial court has the presumption of
correctness and the burden is on the appellant to demonstrate error. Applegate v.
Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979). An appellate
court cannot determine whether a trial court abused its discretion in ruling on the
amount of attorneys fees awarded when the appellant fails to provide a hearing
11
transcript. See Joachim v. Joachim, 942 So. 2d 3, 5 (Fla. 5th DCA 2006)
(Because the [Appellant] failed to provide this court with a transcript of the
attorney's fees hearing in this case, this court cannot determine from the face of the
record that the trial court abused its discretion in the fee award); Simpson v.
Simpson, 780 So. 2d 985, 989 (Fla. 5th DCA 2001) (same). Appellants failure to
provide an adequate record is in and of itself fatal to their appeal as to the amount
of the attorneys fees award.
Moreover, the only record evidence on the issue of amount of fees shows
that the trial court did not abuse its discretion in calculating a reasonable attorney
fee. Specifically, in his sworn affidavit, Appellees expert witness, Steven Osber,
calculated that the adjusted time and fees totaling 30.2 hours and $5,540.00 in
fees are both reasonable and directly related to litigating Defendants Motion to
Dismiss. The trial courts award of $4,575.00 is substantially lower than the
amount that Mr. Osber provided as reasonable in his sworn opinion when
considering that $1,350.00 of the award is directly attributed to Mr. Osbers work.
The $3,225.00 awarded to Appellees attorneys is over 40% less than the amount
found to be reasonable by the expert. Accordingly, the trial court did not abuse its
discretion in calculating the amount of reasonable attorneys fees.
12
Conclusion
Based on the foregoing, this Court should affirm the trial courts orders on
entitlement and amount of attorneys fees.

Respectfully submitted,

By:
DANIEL S. WEINGER
Florida Bar No. 172900
13
Certificate of Service
I HEREBY CERTIFY that a true and correct copy of the foregoing was
furnished via U.S. Mail to Max R. Whitney, Esq., Law Office of Max R. Whitney,
P.A., 461 E. Hillsboro Boulevard, Second Floor Suite 200, Deerfield Beach,
Florida 33441 on this 24th day of October, 2011.
Certificate of Type Size and Style
The undersigned counsel certifies that the type and style used in this brief is
14 point Times New Roman.
_________________________

CONRAD & SCHERER, LLP
Attorneys for Appellee
P. O. Box 14723
Fort Lauderdale, FL 33302
Phone: (954) 462-5500




By:__________________________
DANIEL S. WEINGER, ESQ.