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Filing # 123215775 E-Filed 03/16/2021 06:16:53 PM
IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT
IN AND FOR BREVARD COUNTY, FLORIDA
THIRD WORLD MISSIONS, INC.
Plaintiff Case No.: 2016-CA-022443
Vv.
GREATER BLESSED ASSURANCE
APOSTOLIC TEMPLE, INC. and LEAF
CAPITAL FUNDING, LLC
Defendant
/
DEFENDANT GREATER BLESSED ASSURANCE APOSTOLIC TEMPLE, INC.’S
MEMO IN RESPONSE TO COURT ORDER OF JANUARY 12, 2021
COMES NOW, Defendant GREATER BLESSED ASSURANCE APOSTOLIC TEMPLE, INC.
("Defendant"), by and through the undersigned counsel, and hereby respectfully files this:
Defendant Greater Blessed Assurance Apostolic Temple, Inc.’s Memo In Response To Court
Order Of January 12, 2021, as follows:
1 There was a sale set for January 13, 2021 at 11:00 a.m.in this case. It was cancelled
pending an evidentiary hearing.
This Honorable Court cancelled the sale and set an evidentiary hearing on March 26,
2021. The Final Judgment was entered December 10, 2019 per a summary judgment.
The appeal that was pending was concluded and the Appellate Court affirmed the
summary judgment. The appellate issue is now moot, including appellate attorneys’ fees
and costs, as the appellee did not timely file for fees, and fees were not awarded in that
case.
The bankruptcy case is likewise complete and was dismissed without a “Final Order
Discharge” or timely filed motions for attorneys’ fees, so it is essentially moot.
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This Court is now ready to hear the attorney’s fees issues as to waiver, timeliness,
entitlement, amount, reasonableness, and collateral estoppel, while it reserved on setting
the pending contempt issues.
We will limit this response to the relevant issues of: were additional attorney’s fees and
costs, interest and the like waived at the January 6, 2021 hearing by Plaintiff’s counsel.
Further issues: is this Court “collaterally estopped” from hearing the attorney’s fees, costs,
and interest from the judgment date, pre-petition fees, and post-petition fees until July 20,
2020 due to the “Preliminary Order” in the Bankruptcy Court, as argued by the Plaintiff.
This court clearly bifurcated the contempt issues, so we will only briefly address those to
the extent needed.
We do not intend to re-litigate the case and make allegations irrelevant to this hearing to
“poison the well’ as plaintiff's counsel tends.
10. The docket reflects the case, and Defendant is not going to re-argue the facts and attack
the pleading, nor attach evidence that is not in the record. The Defendant is not going to
poison the well with irrelevant facts and all extracurricular comments or exhibits as
Plaintiff may do. Defendant does incorporate his Affidavit in this motion
11 The Defendant may hire counsel to file any necessary 1.540 motions, independent cases,
or writs, if he chooses at the proper time; however, there is nothing legally preventing this
Court form ruling as the pleading are currently framed. We are here solely to address the
sale reset and the attorney’s fees and costs issues.
12. We are requesting the current evidentiary hearing take place so counsel for the bankruptcy
and appeal can testify and respond to this Court, under oath, as officers of the court.
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SALE
13, At the current time, based upon the status of the current pleadings and the three relevant
cases, once the Court determines the final amount and either denies all fees and costs or
enters an Amended Final Judgment, the Court has the authority to set a sale. The
Defendant is not waiving any other legal rights he may have.
STATUS CONFERENCE
14. There was a Status Conference set by this Court and heard on Microsoft Team platform on
January 6, 2021 at 10:30 a.m.
15. Present were counsel for Plaintiff, Disston as well as its bankruptcy counsel Williams.
Present for the Defendant was the undersigned Attorney Garcia, and former co-counsel
attorney Brown. Mr. Brown was also sole counsel for the Defendant in the bankruptcy, as
well as the brief writer for the concluded Appeal in the 5" DCA.
16. In this Status Conference hearing, Plaintiff's counsel Disston, without notice or motion,
requested this Court to “adopt the Bankruptcy Court Order” and determine that there
should be an additional $91,000 plus increase in the Final Judgment and an increase in the
credit bid in that amount. (See previously filed Affidavit of Costs by Disston DE 116).
17. Counsel for Defendant objected to this request. Plaintiffs counsel knew that the issue of
attorney’s fees and costs in the Amended Final Judgment is with this Court. The
Bankruptcy Order specifically discussed not stepping on the 5" DCA’s jurisdiction (see
page 2 and 3 of the Order).
18, Further, it must be noted that the Bankruptcy proceeding was dismissed and no fees
requests were timely filed or heard for the “bankruptcy fees” subsequent to the dismissal,
thereby depriving the Bankruptcy Court to address the fees.
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19. The Bankruptcy Order relied upon and the Order which the Plaintiff is attempting to have
this Court adopt without any hearing, was only a “Preliminai Order” as to the then
pending Claim, and the Bankruptcy was ultimately dismissed. (Order attached to DE 116
or DE 117).
20. Plaintiffs’ counsels attempted to cram down an increase in the final judgment and their
credit bid, days before the sale, without hearing, notice, or even a motion for fees being
filed at that time. The only document filed was an Affidavit of Costs, with no supporting
teasonableness, no supporting documents, and in an attempt to misdirect this Court.
21 Plaintiffs have not withdrawn their legally incorrect collateral estoppel argument to date.
22. This court addressed its concern and set a hearing for March 26, 2021.
23 Plaintiff amazingly still continues to argue to this court that the Bankruptcy “Final” Order
has ‘Collateral Estoppel” effect as to this Circuit Courts’ ability to make a determination
on the significant issue of attorney’s fees and post judgment costs in an amount of over
$91,000.00. (See Affidavit of Costs filed by Plaintiff counsel Disston DE 116) (See the
Bankruptcy Order at issue attached to DE 116).
24. Attorney Williams made numerous representations to this Court; Specifically: (transcript
is being ordered for exact language)****
a. That there was a stipulation and binding affect as to the jurisdiction and to the
amount of attorney’s fees and costs issues.
That the Order was “res judicata” or “collateral estoppel” to this Court’s
ability to determine the issue of fees and costs.
That the Bankruptcy Order was a binding Order, after a full and lengthy
hearing in Bankruptcy Court.
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25. When questioned, Williams folded under the Court’s challenge, and the Court began to
Order the sale cancelled and an evidentiary hearing be set as to this issue. The Court
properly began to Order counsels to prepare a memorandum of law on the issues related to
the Bankruptcy Order as stated by Williams, and the Court was going to set a proper
evidentiary hearing on this significant increase in the final judgment in an amount over
$91,000.00.
26. In response to the Court properly cancelling the sale and setting an evidentiary hearing
due to this remaining outstanding issue; almost as a panic knee jerk reaction, Attorney
Disston withdrew/waived this attorneys’ fees and cost issue, and the Court left the sale set
as is solely based on Disston’s representation. Almost a quid pro quo exchanging the
additional $91,000 and an evidentiary hearing so the sale would not be cancelled.
27. The Court apparently was properly ruling that Plaintiffs had the choice to either cancel the
sale and have a proper evidentiary hearing on the additional fees and costs as represented
by Plaintiffs’ counsel, with supporting law; or the sale go forward, and the court would
accept the Plaintiff's waiver of these additional fees and costs in exchange for the cram
down sale.
28 Defense counsel filed an Emergency Motion to Cancel Sale, which was granted and set a
hearing for March 26, 2021.
29. Disston then made numerous representations to this Court, in a further attempt to place the
Defendant in bad light and to lead the Court into further legal errors as to how to handle
this unique and obscure position the Plaintiffs placed the Court into. Disston represented
to this court that:
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a. He withdrew the request for attorneys’ fees and costs (apparently in exchange
for the immediate sale),
That the Fire Marshall sent an “unsolicited E-mail” to his office that the
Defendant owed significant lien payments for major violations on the property
and there was DCF complaint against the Defendant. (these issues re not
briefed as the court bifurcated the contempt.)
SETTLEMENT CONFERENCE
30. The Court then went on to Order the parties to conduct an informal settlement conference
that day due to the time constrains of the upcoming imminent sale set for January 13, 2021
and the Court’s tight calendar.
31. The Plaintiffs’ did not follow the Court’s request in conducting a meaningful mediation.
A zoom call did begin, however, it was cut short when Defendant’s counsel’s Zoom
locked up after she shared her screen with the Plaintiff's counsel Williams to review the
Costs Affidavit, per his request. Plaintiff's counsel then refused to continue the settlement
conference on Zoom and e-mails were exchanged.
32. Additionally, the other bad faith conducts in regard to this settlement conference is;
a. Prior to the conference, the Defense counsel asked numerous times, over and
over again, for a copy of the “unsolicited e-mail from the Fire Marshall” as
represented in Court. It was refused, purposely ignored, and not addressed at
the conference. Further, they have never been provided.
The Plaintiffs’ Counsel attended the conference with no settlement authority
and did not present the first two offers to its client, rejecting the first without
consultation with their client.
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Cc. Then the Defense counsel’s financier presented a second offer, which was
followed up by an e-mail by Defense Counsel. The Plaintiff's counsel was
given until 9:00 a.m. the following day in good faith to respond to very
reasonable settlement offer, and Plaintiff's counsel responded they had not
“heard from their client.” (Apparently the response went to counsel’s clutter
and was delayed).
Meanwhile, the Plaintiff's Counsel filed what is believed to be an untimely
Amended Motion for Attorneys’ fees and Costs on January 7, 2021 after 4:30
p.m., that were previously withdrawn/waived in open court in order to ensure
the immediate sale;(see DE 131)
The Plaintiffs actions were in complete bad faith and an intentional
disobedience of this Court’s order to have the settlement conference in good
faith.
The Plaintiffs counsel had not included the undersigned in previous settlement
communications.
33. To further, show the bad faith and manipulation of this Court; after the bad faith
settlement was cut off and not concluded in good faith; and Plaintiffs’ counsel knew
Defendant was waiting for a response prior to preparing this Emergency Motion to Cancel
Sale; Attorney Disston had not timely respond to the settlement offer, stating his client
had not responded; and during that time — and in complete bad faith and in violation of
the withdrawal/waiver of additional fees, costs and credit bid; Disston filed his
(Amended) Motion for Attorneys’ fees and Costs (just filed not on Docket yet - See DE
131 filed 1/7/2021).
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34. Disston filed this withdrawn/waived Motion, in bad faith, after fully being aware that the
Court left the sale date as is solely due to his withdrawal/waiver of those additional costs,
and to correct his legal mistake for his knee jerk reaction in court to withdraw/waive the
fees to make sure the sale was not cancelled under any circumstance.
35 Now, Plaintiffs’ counsel wants to “have their cake and eat it too” and have a crammed
down sale on Wednesday January 13, 2021; while their Motion for Attorneys’ fees and
Costs is renewed without time or hearing to defend against it. Disston is fully aware that
he cannot go back after the sale and request previous fees, costs or expenses.
36. This litigation strategy and manipulation of the Court, the system, and the Defendant must
be stopped and addressed as to Counsels’ motives, statements, and attempts at bypassing
the Defendants’ constitutional rights to a fair trial, to cross examine witnesses, and for due
process.
37. The Commercial Broker (The Anderson Group.com) for this refinance attended the Status
Conference and was at the settlement conference. He fully cooperated and responded to
questions although the Plaintiff had no right to ask certain questions or to attempt to
manipulate him to not finance the Defendant.
38 Recently, attempts have been made to destroy the refinancing and no number has been
established for a proper payoff.
39. The attorneys’ fees and costs have not been determined to date, and an amended Final
Judgment will need to be entered after evidentiary hearing on that matter if the fees and
costs are to be granted.
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40. Further, it is being requested that this Court Strike the Bad Faith filed Motion for
Attorneys’ fees and Costs, Affidavit of Costs, the Amended Motion for Fees and Costs,
and the Affidavit of Costs recently filed.
41 There is an active Church and School/day care on the properties, and this will irrevocably
seriously disrupt the academics and worship of the parishioners.
42. Defendant is seeking its attorneys’ fees and costs for the filing and prosecution of this
motion.
MEMORANDUM OF LAW ON FEES ISSUE ONLY
43 Defendant has addressed the fees issue entitlement and timing, as well as what types of
fees can be heard. Further the issue in relation to ‘collateral estoppel.’
44 This Court has the authority to deny all additional fees and costs based on the Rules of
Procedure, as all additional motions or affidavits are untimely or are from other cases,
including the appeal and the bankruptcy court. In addition, there was a waiver on the record
in the January 6, 2021 hearing.
STATE COURT FEES
Fla.R.Civ.Pro., Rule 1.525
‘Any party seeking a judgment taxing costs, attorneys’ fees, or both shall serve a motion no later
than 30 days after filing of the judgment, including a judgment of dismissal, or the service of a
notice of voluntary dismissal, which judgment or notice concludes the action as to that party.”
The additional legally insufficient Affidavit for costs was untimely filed on September
30, 2020 in this matter and must be stricken in full. (see DE 116). The Final Judgment was
entered December 10, 2019. The initial legally insufficient Motion for Fees was filed
December 12, 2019, along with the legally insufficient one-page Affidavit. The current
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pending Cost Affidavit was not filed within 30 days as required, and it requested fees
incurred in other courts, asked for the fees based on the Bankruptcy Court Preliminary Order,
and no invoices are attached to determine reasonableness.
Further, the Amended Motion for Fees filed January 11, 2021, was filed untimely, and in
bad faith after the plaintiff's waived additional fees on the record.
Appellate attorney Fees
Fla.R.App.Pro. 9.400
(a) Costs. Costs shall be taxed in favor of the prevailing party unless the court orders
otherwise. Taxable costs shall include:
(1) fees for filing and service of process;
(2) charges for preparation of the record and any hearing or trial transcripts necessary to
determine the proceeding;
(3) bond premiums; and
(4) other costs permitted by law.
Costs shall be taxed by the lower tribunal on a motion served no later than 45 days after
rendition of the court’s order. If an order is entered either staying the issuance of or recalling
a mandate, the lower tribunal is prohibited from taking any further action on costs pending
the issuance of a mandate or further order of the court.
(b) Attorneys’ Fees. With the exception of motions filed pursuant to rule 9.410(b), a motion
for attorneys’ fees shall state the grounds on which recovery is sought and shall be served not
later than:
(1) in appeals, the time for service of the reply brief: .....
(c) Review. Review of orders rendered by the lower tribunal under this rule shall be by
motion filed in the court within 30 days of rendition.
The Motion for Appellate Fees would normally be decided by the Appellate Court and
was not timely filed with the Reply Brief that was filed 8/20/2020. These fees must be
denied in full.
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Bankruptcy Fees and Collateral estoppel
Rule 54. Judgment: Costs
(a) Definition; Form. “Judgment” as used in these rules includes a decree and any order from
which an appeal lies. A judgment should not include recitals of pleadings, a master's report,
or a record of prior proceedings.
(b) Judgment on Multiple Claims or Involving Multiple Parties. When an action presents
more than one claim for relief—whether as a claim, counterclaim, crossclaim, or third-party
claim—or when multiple parties are involved, the court may direct entry of a final judgment
as to one or more, but fewer than all, claims or parties only if the court expressly determines
that there is no just reason for delay. Otherwise, any order or other decision, however
designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than
all the parties does not end the action as to any of the claims or parties and may be revised at
any time before the entry of a judgment adjudicating all the claims and all the parties’ rights
and liabilities.
(c) Demand for Judgment; Relief to Be Granted. A default judgment must not differ in kind
from, or exceed in amount, what is demanded in the pleadings. Every other final judgment
should grant the relief to which each party is entitled, even if the party has not demanded that
relief in its pleadings.
(d) Costs; Attorney's Fees.
(1) Costs Other Than Attorney's Fees. Unless a federal statute, these rules, or a court order
provides otherwise, costs—other than attorney's fees—should be allowed to the prevailing
party. But costs against the United States, its officers, and its agencies may be imposed only
to the extent allowed by law. The clerk may tax costs on 14 days’ notice. On motion served
within the next 7 days, the court may review the clerk's action.
2) Attorney's Fees.
(A) Claim to Be by Motion. A claim for attorney's fees and related nontaxable expenses must
be made by motion unless the substantive law requires those fees to be proved at trial as an
element of damages.
(B) Timing and Contents of the Motion. Unless a statute or a court order provides otherwise.
the motion must:
(i) be filed no later than 14 days after the entry of judgment:
(ii) specify the judgment and the statute, rule, or other grounds entitling the movant to the
award;
(iii) state the amount sought or provide a fair estimate of it; and
(iv) disclose, if the court so orders, the terms of any agreement about fees for the services for
which the claim is made.
(C) Proceedings. Subject to Rule 23(h), the court must, on a party's request, give an
opportunity for adversary submissions on the motion in accordance with Rule 43(c) or 78.
The court may decide issues of liability for fees before receiving submissions on the value of
services. The court must find the facts and state its conclusions of law as provided in Rule
52{a).
(D) Special Procedures by Local Rule; Reference to a Master or a Magistrate Judge. By local
tule, the court may establish special procedures to resolve fee-related issues without
extensive evidentiary hearings. Also, the court may refer issues concerning the value of
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services to a special master under Rule 53 without regard to the limitations of Rule 53(a)(1),
and may refer a motion for attorney's fees to a magistrate judge under Rule 72(b) as if it were
a dispositive pretrial matter.
(E) Exceptions. Subparagraphs (A)-(D) do not apply to claims for fees and expenses as
sanctions for violating these rules or as sanctions under 28 U.S.C. 192)
The Bankruptcy Court has jurisdiction over its fees, not the State Court Fees. No timely
motion was filed in the bankruptcy court within 14 days of the dismissal.
Further, the red herring in the untimely legally insufficient Affidavit of Costs filed in this
matter, and the Amended Motion for Fees, does not ‘collaterally estop’ this Court from
holding a hearing on the fees in this foreclosure case, making its own independent rulings as
to the striking of the Motions and Affidavits, or accepting the Plaintiffs counsel waiver on
the record in open court.
This would be a case of first impression if the Court allows the Plaintiff's position to
remain that this Court is ‘collaterally estopped’ from ruling on its own case. There is no case
on point that supports the Plaintiff’s position that this Court is collaterally estopped from
tuling on her own case and to the fees issue. Any cases cited by Plaintiff’s counsel will be
easily distinguishable or go against the proposition presented.
The Bankruptcy Order the Plaintiffs rely on is only a Preliminary Order (not a Final
Order) for purposes of establishing the claim amount only. The Order states it is not
intended to deprive the 5" DCA of its jurisdiction. That would likewise carry over to this
Court. Further, the Bankruptcy was dismissed, and no further motions were filed on the right
to bankruptcy fees within 14 days of the dismissal. This Court must deny the Plaintiff's
request for Bankruptcy fees.
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Collateral Estoppel not applicable in our cas
Please see Park v. City of West Melbourn, 927 So.2d 5 (5"* DCA 2006) and Gordon v.
G ordon, 59 So.2d 40 (Fla. 1952). The cases are attached for your review and analysis. In our
instant case, not all the same issues were litigated and there is not a clear cut former
adjudication on the merits. Park, Citing Gordon v. Gordon, 59 So.2d 40 (Fla. 1952) at 45.
Citing directly from Park:
“In Gordon, the Florida Supreme Court held that the test in determining whether
judgment by estoppel applies to a case is "whether the evidence in both cases is in essence
the same" and whether "every point and question’ presented in the second action was
actually litigated and decided in the first." 59 So.2d at 45. For res judicata or collateral
estoppel to apply, there must also exist in the prior litigation a "clear-cut former adjudication"
on the merits. Dep't of Health & Rehab. Servs. v. LaPlante, 470 So.2d 832, 834 (Fla. 2d
DCA 1985); see also R.D.J. Enters., Inc. v. Mega Bank, 600 So.2d 1229, 1231 (Fla. 3d DCA
1992) (holding that collateral estoppel prevents relitigation of issues that have been fully
litigated and which resulted in a final decision of a court of competent
jurisdiction); Hochstadt v. Orange Broadcast, 588 So.2d 51, 53 n. 2 (Fla. 3d DCA
1991) (stating that "defensive collateral estoppel ‘occurs when a defendant seeks to prevent a
plaintiff form asserting a claim the plaintiff has previously litigated and lost against another
defendant") (internal citations omitted).”
MEMORANDUM OF LAW TO FOLLOW DUE TO BIFURCATION OF ISSUES
45. Contempt. Standard of Review, after Court hearing on March 26, 2021.
46. Defendant is requesting this Honorable Court to hold the evidentiary hearing on the fees
issues as scheduled, consider the striking of the fees motions and affidavits, the
teasonableness, the timing, the waivers in open court, the limitations as to the types of
fees allowed, and any other issues this Court deems fit and proper.
WHEREFORE, Defendant prays this Honorable Court grant this Motion and to:
a. Hold the evidentiary hearing on attorney’s fees and costs as scheduled, including
timing, reasonableness, legal sufficiency, as well as striking the request for
additional fees and costs in the State Court, for State Court fees, Appellate Court
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fees, and Bankruptcy Court fees, based on the above and additionally Plaintiff's
counsel waiver on the record, and,
b. For any other relief deemed fit and proper.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY on March 16, 2021, the foregoing document was filed with the Clerk of
the Court using the State of Florida e-filing portal and was served this day on counsel of record
via transmission of Notices of Electronic Filing generated by the State of Florida e-filing portal.
Respectfully, Submitted
/s/Inger M. Garcia, Esq.
Florida Litigation Group, P.A.
4839 Volunteer Road, #514
Davie, FL 33330
(954) 394-7461
Fla. Bar No. 0106917
attomey@ingergarcia.com
erviceimglaw@yahoo.com
attomey@floridalitgroup.com
attomey@floridapotlawfirm.com
SERVICE LIST
All registered on the e-filing list as well as:
David Disston, Esq.
Shane M. Smith, PA
3845 W. Eau Galle Blvd.,Ste 104
Melbourne, FL 32934
Service@shanesmithlegal.com
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927 So.2d 5 (2006)
Bryon D. PARK, Appellant,
Vv.
CITY OF WEST MELBOURNE, Florida, Appellee.
No. S5D05-2226.
District Court of Appeal of Florida, Fifth District.
February 17, 2006.
Rehearing Denied April 25, 2006.
o"6 Edward R. Gay, Orlando, for Appellant.
Charles Robinson Fawsett, P.A., of Shutts & Bowen LLP, Orlando, for Appellee.
ORFINGER, J.
Bryon D. Park appeals the summary final judgment entered in favor of the City of West
Melbourne ("City") in his action for declaratory relief seeking reinstatement and back pay. We
reverse.
From the police department's phone bill, Police Chief Brian Lock, learned that a call had been
placed from a department phone line to the Astrological Society psychic hotline, incurring a
charge of $39.95. He questioned several police officers, including Park, about the call. Park
claimed that he had no knowledge of anyone calling a 1-900 number or any psychic service, and
signed a written statement to that effect. After learning that the police department had been
charged for a call to a psychic hotline, and that Chief Lock was looking into the matter, Officer
"Bo" Bryant admitted to Chief Lock that he had called the psychic phone line. According 7 to
Bryant, he had seen an advertisement for the psychic line, which claimed that any call under
three minutes would be free. Bryant told Chief Lock that Park had timed the call to make sure
that he was not on the phone longer than three minutes.
Based on Bryant's admission, Chief Lock began an internal investigation to determine if Park
had provided false testimony, and, as a result, violated the police department's Uniform
Standards of Conduct, which Park had agreed to as a condition of his employment. Chief Lock
interviewed Park and advised him that the investigation could lead to disciplinary action,
demotion, or dismissal. Even after being confronted with Bryant's admission, Park still
maintained that he had not called the psychic hotline, nor did he remember Bryant calling the
psychic hotline while he timed the call. However, Park conceded that he was having family
problems around the time when the call was placed, and if Bryant said that he participated in the
call, he probably did; he simply did not remember it.
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Mark K. Ryan is the City's Chief Executive Officer and is the only City employee with authority
to discharge City employees. Based on Chief Lock's investigation, Ryan wrote to Park, setting
forth the allegations against him and advising him that Chief Lock had recommended that Park's
employment with the City be terminated. Ryan advised Park that before a final decision on his
employment was made, Park could meet with him and present his side of the story. A pre-
termination meeting was held, attended by Ryan, Chief Lock, Park, Park's attorney, and an
attorney for the City. Following the meeting, Ryan decided to discharge Park based on his
dishonesty about his participation in the call to the psychic hotline. Ryan's discharge letter to
Park stated:
Ihave decided to terminate your employment with the City of West Melbourne.
J advise you that you are entitled to a subsequent public, evidentiary hearing before a person
selected and empowered by the City to set aside, modify or affirm this decision. The issue in this
hearing would be whether the City's decision to terminate your employment was arbitrary,
pretextual or for an improper motive. This hearing would meet the requirements of due process
of law under the 14th Amendment of the United States Constitution and applicable statutory and
case law.
If you wish to have such a hearing, please request it in writing to me within 15 days from the
date of this letter. Your failure to request such a hearing in writing within such time will be
considered a waiver of any right to such a hearing.
In response, Park requested a public evidentiary hearing on the matter! William Hall, the town
manager of the Town of Malabar, was appointed to serve as the hearing officer. In a letter to the
hearing officer discussing his appointment and the scope of the hearing, Ryan wrote:
The purpose of this hearing is for you to determine whether the City's decision to terminate a
police officer was or was not °*® arbitrary, capricious, pretextual, or for an improper motive.
You are hereby empowered to set aside, modify or affirm the City's decision following your
review of the evidence presented at this hearing.
After the hearing, the hearing officer concluded that the City had failed to meet its burden to
prove by a preponderance of the evidence that its termination of Park was for just cause and
ordered Park's "immediate reinstatement as a police officer for the City of West Melbourne,
along with back pay."
The City, believing that the hearing officer had "departed in a very material way from the
instructions he had been given by the City regarding his role" in the hearing, did not reinstate
Park, but, instead, filed a petition for a writ of certiorari in the circuit court, seeking to set aside
the hearing officer's decision. The trial court agreed with the City that the hearing officer's role
was limited to deciding whether the City's decision to discharge Park was arbitrary, capricious,
pretextual, or for an improper motive, and concluded that the hearing officer was not empowered
to reweigh the evidence. Since the City's decision was not arbitrary, capricious, pretextual, or for
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an improper motive, the trial court granted the City's certiorari petition, quashed the hearing
officer's decision, and confirmed the City's decision to discharge Park.
Park then sought review in this Court. We quashed the circuit court's decision, holding that
under Grice v, City of Kissimmee, 697 So.2d 186 (Fla. Sth DCA 1997). a police officer who is
not a probationary or at-will employee is entitled to a due process hearing before his termination
is final, and "when the termination is based on the testimony of witnesses ... as a matter of
constitutional due process, the officer must be permitted to confront and cross-examine the
witness." Park v. City of West Melbourne, 769 So.2d 397, 398 (Fla. 5th DCA 2000) (Park 1).
This Court reasoned that since Park was not afforded a hearing where he could confront and
cross-examine the witnesses against him before his termination became final, Park was denied
procedural due process. /d.
Park then filed a petition for a writ of mandamus in the circuit court, seeking reinstatement with
back pay, consistent with the hearing officer's ruling. The circuit court order denied Park's
mandamus petition, concluding that Park "did not establish a clear legal right to reinstatement to
employment with the City of West Melbourne with back pay, the relief requested..." That ruling
was affirmed by this Court. Park v. Ryan, 821 So.2d 1082 (Fla. Sth DCA 2002) (Table) (Park
IN.
Not being easily deterred, Park then filed an action seeking, by means of a declaratory judgment,
reinstatement to City employment and back pay. Both Park and the City subsequently filed
motions for summary judgment. The trial court granted the City's motion, concluding that it had
previously decided with finality in the mandamus proceeding that Park "did not establish a clear
legal right to reinstatement with back pay," and, consequently, the issue was barred by judgment
by estoppel. This appeal followed.
A final order granting summary judgment is reviewed de novo. Volusia County v. Aberdeen at
Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). A court may grant summary judgment "if
there is no genuine issue of material fact and if the moving party is entitled to a judgment as a
matter of law." /d. (citing Menendez v. Palms W. Condo, Ass'n, 736 So.2d 58 (Fla. 1st DCA
1999)).
In the proceedings below, the circuit court concluded that under Gordon vy. Gordon, 59 So.2d 40
(Fla.1952), Park was estopped ’*® from litigating his entitlement reinstatement with back pay
based on the court's earlier denial of Park's petition for writ of mandamus. On appeal, Park
argues that the trial court erred in concluding that his complaint seeking declaratory relief,
injunctive relief, and damages against the City is barred by the doctrine of judgment by estoppel
We agree.
In Gordon, the Florida Supreme Court held that the test in determining whether judgment by
estoppel applies to a case is "whether the evidence in both cases is in essence the same" and
whether "every point and question’ presented in the second action was actually litigated and
decided in the first." 59 So.2d at 45. For res judicata or collateral estoppel to apply, there must
also exist in the prior litigation a "clear-cut former adjudication" on the merits. Dep't of Health &
Rehab. Servs. y. LaPlante, 470 So.2d 832, 834 (Fla. 2d DCA 1985); see also R.D.J. Enters., Inc.
17
Filing 123215775 THIRD WORLD VS GREATER BLESSED 05-2016-CA-022443-XXXX-XX
v. Mega Bank, 600 So.2d 1229, 1231 (Fla. 3d DCA 1992) (holding that collateral estoppel
prevents relitigation of issues that have been fully litigated and which resulted in a final decision
of a court of competent jurisdiction); Hochstadt v. Orange Broadcast, 588 So.2d 51, 53 n. 2 (Fla.
3d DCA 1991) (stating that "defensive collateral estoppel ‘occurs when a defendant seeks to
prevent a plaintiff form asserting a claim the plaintiff has previously litigated and lost against
another defendant") (internal citations omitted).
Consequently, we must determine if the trial court's denial of Park's petition for writ of
mandamus decided the issues presented in Park's current complaint on the merits. See Dep't of
Health & Rehab. Servs. v. B.J.M., 656 So.2d 906, 910 (Fla. 1995) (noting that Florida courts
have emphasized that judgment by estoppel "precludes relitigation of issues actually litigated in
a prior proceeding") (emphasis in original). Under this standard, we conclude that estoppel by
judgment does not bar Park's action, because no adjudication on the merits occurred in the
mandamus proceeding.
"[M]Jandamus may be used only to enforce a clear and certain right; it may not be used to
establish such a right, but only to enforce a right already clearly and certainly established in the
law." Milanick v. Town of Beverly Beach, 820 So.2d 317, 320 (Fla. 5th DCA 2001) (citing Fla.
League of Cities v. Smith, 607 So.2d 397, 400-01 (Fla.1992)). In denying Park's petition for writ
of mandamus, the trial court merely concluded that Park "did not establish a clear legal right to
reinstatement to employment with [the City] with back pay, the relief requested...." The trial
court's decision to deny Park mandamus relief was predicated in large part on its belief that our
opinion in Park I mandated that the City provide Park with a due process, evidentiary hearing.
We think that conclusion misconstrues our earlier decisions. In Park [, we readopted our holding
in Grice that "if the City is going to terminate someone on the basis of the testimony of other
witnesses then the officer must, as a matter of constitutional due process, at some point—either a
pre-termination hearing or at a post-termination hearing—be permitted to confront those
witnesses and cross examine them.” Grice, 697 So.2d at 190. We did not remand Park | with
directions to hold a pre-termination hearing, nor could we have done so. "[A]fter review by
certiorari, an appellate court can only quash the lower court order; it has no authority to direct the
lower court to enter contrary orders." Gulf Oil Realty Co. v. Windhover Ass'n, Inc., 403 So.2d
476, 478 (Fla. 5th DCA 1981). When we quashed the circuit court's order in ParkI, the hearing
officer's ruling was left standing.
) The City concedes that it was proper for Park to seek enforcement of the hearing officer's
ruling by mandamus or declaratory relief. Park initially chose mandamus relief but was rebuffed
on procedural grounds. That was not adjudication on the merits and does not bar this action.
Consequently, summary judgment was improper.
Finally, the City argues that the statute of limitations also bars Park's claim. We decline to rule
on that issue as it was never considered in the trial court.
REVERSED AND REMANDED.
GURROLA, B., Associate Judge, concurs.
18
Filing 123215775 THIRD WORLD VS GREATER BLESSED 05-2016-CA-022443-XXXX-XX
TORPY, J., concurs and concurs specially, with opinion.
TORPY, J., concurring and concurring specially.
I concur in the opinion of the majority. I write to address a potential misconception brought
about by the panel opinion in Park J. There, we stated:
Tn the instant case, since there had been only an internal investigation plus a recommendation
from the chief to the city manager that Park be fired, and no pretermination hearing during which
Park could confront the witne
Preview
Filing # 123215775 E-Filed 03/16/2021 06:16:53 PM IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT IN AND FOR BREVARD COUNTY, FLORIDA THIRD WORLD MISSIONS, INC. Plaintiff Case No.: 2016-CA-022443 Vv. GREATER BLESSED ASSURANCE APOSTOLIC TEMPLE, INC. and LEAF CAPITAL FUNDING, LLC Defendant / DEFENDANT GREATER BLESSED ASSURANCE APOSTOLIC TEMPLE, INC.’S MEMO IN RESPONSE TO COURT ORDER OF JANUARY 12, 2021 COMES NOW, Defendant GREATER BLESSED ASSURANCE APOSTOLIC TEMPLE, INC. ("Defendant"), by and through the undersigned counsel, and hereby respectfully files this: Defendant Greater Blessed Assurance Apostolic Temple, Inc.’s Memo In Response To Court Order Of January 12, 2021, as follows: 1 There was a sale set for January 13, 2021 at 11:00 a.m.in this case. It was cancelled pending an evidentiary hearing. This Honorable Court cancelled the sale and set an evidentiary hearing on March 26, 2021. The Final Judgment was entered December 10, 2019 per a summary judgment. The appeal that was pending was concluded and the Appellate Court affirmed the summary judgment. The appellate issue is now moot, including appellate attorneys’ fees and costs, as the appellee did not timely file for fees, and fees were not awarded in that case. The bankruptcy case is likewise complete and was dismissed without a “Final Order Discharge” or timely filed motions for attorneys’ fees, so it is essentially moot. 1 Filing 123215775 THIRD WORLD VS GREATER BLESSED 05-2016-CA-022443-XXXX-XX This Court is now ready to hear the attorney’s fees issues as to waiver, timeliness, entitlement, amount, reasonableness, and collateral estoppel, while it reserved on setting the pending contempt issues. We will limit this response to the relevant issues of: were additional attorney’s fees and costs, interest and the like waived at the January 6, 2021 hearing by Plaintiff’s counsel. Further issues: is this Court “collaterally estopped” from hearing the attorney’s fees, costs, and interest from the judgment date, pre-petition fees, and post-petition fees until July 20, 2020 due to the “Preliminary Order” in the Bankruptcy Court, as argued by the Plaintiff. This court clearly bifurcated the contempt issues, so we will only briefly address those to the extent needed. We do not intend to re-litigate the case and make allegations irrelevant to this hearing to “poison the well’ as plaintiff's counsel tends. 10. The docket reflects the case, and Defendant is not going to re-argue the facts and attack the pleading, nor attach evidence that is not in the record. The Defendant is not going to poison the well with irrelevant facts and all extracurricular comments or exhibits as Plaintiff may do. Defendant does incorporate his Affidavit in this motion 11 The Defendant may hire counsel to file any necessary 1.540 motions, independent cases, or writs, if he chooses at the proper time; however, there is nothing legally preventing this Court form ruling as the pleading are currently framed. We are here solely to address the sale reset and the attorney’s fees and costs issues. 12. We are requesting the current evidentiary hearing take place so counsel for the bankruptcy and appeal can testify and respond to this Court, under oath, as officers of the court. 2 Filing 123215775 THIRD WORLD VS GREATER BLESSED 05-2016-CA-022443-XXXX-XX SALE 13, At the current time, based upon the status of the current pleadings and the three relevant cases, once the Court determines the final amount and either denies all fees and costs or enters an Amended Final Judgment, the Court has the authority to set a sale. The Defendant is not waiving any other legal rights he may have. STATUS CONFERENCE 14. There was a Status Conference set by this Court and heard on Microsoft Team platform on January 6, 2021 at 10:30 a.m. 15. Present were counsel for Plaintiff, Disston as well as its bankruptcy counsel Williams. Present for the Defendant was the undersigned Attorney Garcia, and former co-counsel attorney Brown. Mr. Brown was also sole counsel for the Defendant in the bankruptcy, as well as the brief writer for the concluded Appeal in the 5" DCA. 16. In this Status Conference hearing, Plaintiff's counsel Disston, without notice or motion, requested this Court to “adopt the Bankruptcy Court Order” and determine that there should be an additional $91,000 plus increase in the Final Judgment and an increase in the credit bid in that amount. (See previously filed Affidavit of Costs by Disston DE 116). 17. Counsel for Defendant objected to this request. Plaintiffs counsel knew that the issue of attorney’s fees and costs in the Amended Final Judgment is with this Court. The Bankruptcy Order specifically discussed not stepping on the 5" DCA’s jurisdiction (see page 2 and 3 of the Order). 18, Further, it must be noted that the Bankruptcy proceeding was dismissed and no fees requests were timely filed or heard for the “bankruptcy fees” subsequent to the dismissal, thereby depriving the Bankruptcy Court to address the fees. 3 Filing 123215775 THIRD WORLD VS GREATER BLESSED 05-2016-CA-022443-XXXX-XX 19. The Bankruptcy Order relied upon and the Order which the Plaintiff is attempting to have this Court adopt without any hearing, was only a “Preliminai Order” as to the then pending Claim, and the Bankruptcy was ultimately dismissed. (Order attached to DE 116 or DE 117). 20. Plaintiffs’ counsels attempted to cram down an increase in the final judgment and their credit bid, days before the sale, without hearing, notice, or even a motion for fees being filed at that time. The only document filed was an Affidavit of Costs, with no supporting teasonableness, no supporting documents, and in an attempt to misdirect this Court. 21 Plaintiffs have not withdrawn their legally incorrect collateral estoppel argument to date. 22. This court addressed its concern and set a hearing for March 26, 2021. 23 Plaintiff amazingly still continues to argue to this court that the Bankruptcy “Final” Order has ‘Collateral Estoppel” effect as to this Circuit Courts’ ability to make a determination on the significant issue of attorney’s fees and post judgment costs in an amount of over $91,000.00. (See Affidavit of Costs filed by Plaintiff counsel Disston DE 116) (See the Bankruptcy Order at issue attached to DE 116). 24. Attorney Williams made numerous representations to this Court; Specifically: (transcript is being ordered for exact language)**** a. That there was a stipulation and binding affect as to the jurisdiction and to the amount of attorney’s fees and costs issues. That the Order was “res judicata” or “collateral estoppel” to this Court’s ability to determine the issue of fees and costs. That the Bankruptcy Order was a binding Order, after a full and lengthy hearing in Bankruptcy Court. 4 Filing 123215775 THIRD WORLD VS GREATER BLESSED 05-2016-CA-022443-XXXX-XX 25. When questioned, Williams folded under the Court’s challenge, and the Court began to Order the sale cancelled and an evidentiary hearing be set as to this issue. The Court properly began to Order counsels to prepare a memorandum of law on the issues related to the Bankruptcy Order as stated by Williams, and the Court was going to set a proper evidentiary hearing on this significant increase in the final judgment in an amount over $91,000.00. 26. In response to the Court properly cancelling the sale and setting an evidentiary hearing due to this remaining outstanding issue; almost as a panic knee jerk reaction, Attorney Disston withdrew/waived this attorneys’ fees and cost issue, and the Court left the sale set as is solely based on Disston’s representation. Almost a quid pro quo exchanging the additional $91,000 and an evidentiary hearing so the sale would not be cancelled. 27. The Court apparently was properly ruling that Plaintiffs had the choice to either cancel the sale and have a proper evidentiary hearing on the additional fees and costs as represented by Plaintiffs’ counsel, with supporting law; or the sale go forward, and the court would accept the Plaintiff's waiver of these additional fees and costs in exchange for the cram down sale. 28 Defense counsel filed an Emergency Motion to Cancel Sale, which was granted and set a hearing for March 26, 2021. 29. Disston then made numerous representations to this Court, in a further attempt to place the Defendant in bad light and to lead the Court into further legal errors as to how to handle this unique and obscure position the Plaintiffs placed the Court into. Disston represented to this court that: 5 Filing 123215775 THIRD WORLD VS GREATER BLESSED 05-2016-CA-022443-XXXX-XX a. He withdrew the request for attorneys’ fees and costs (apparently in exchange for the immediate sale), That the Fire Marshall sent an “unsolicited E-mail” to his office that the Defendant owed significant lien payments for major violations on the property and there was DCF complaint against the Defendant. (these issues re not briefed as the court bifurcated the contempt.) SETTLEMENT CONFERENCE 30. The Court then went on to Order the parties to conduct an informal settlement conference that day due to the time constrains of the upcoming imminent sale set for January 13, 2021 and the Court’s tight calendar. 31. The Plaintiffs’ did not follow the Court’s request in conducting a meaningful mediation. A zoom call did begin, however, it was cut short when Defendant’s counsel’s Zoom locked up after she shared her screen with the Plaintiff's counsel Williams to review the Costs Affidavit, per his request. Plaintiff's counsel then refused to continue the settlement conference on Zoom and e-mails were exchanged. 32. Additionally, the other bad faith conducts in regard to this settlement conference is; a. Prior to the conference, the Defense counsel asked numerous times, over and over again, for a copy of the “unsolicited e-mail from the Fire Marshall” as represented in Court. It was refused, purposely ignored, and not addressed at the conference. Further, they have never been provided. The Plaintiffs’ Counsel attended the conference with no settlement authority and did not present the first two offers to its client, rejecting the first without consultation with their client. 6 Filing 123215775 THIRD WORLD VS GREATER BLESSED 05-2016-CA-022443-XXXX-XX Cc. Then the Defense counsel’s financier presented a second offer, which was followed up by an e-mail by Defense Counsel. The Plaintiff's counsel was given until 9:00 a.m. the following day in good faith to respond to very reasonable settlement offer, and Plaintiff's counsel responded they had not “heard from their client.” (Apparently the response went to counsel’s clutter and was delayed). Meanwhile, the Plaintiff's Counsel filed what is believed to be an untimely Amended Motion for Attorneys’ fees and Costs on January 7, 2021 after 4:30 p.m., that were previously withdrawn/waived in open court in order to ensure the immediate sale;(see DE 131) The Plaintiffs actions were in complete bad faith and an intentional disobedience of this Court’s order to have the settlement conference in good faith. The Plaintiffs counsel had not included the undersigned in previous settlement communications. 33. To further, show the bad faith and manipulation of this Court; after the bad faith settlement was cut off and not concluded in good faith; and Plaintiffs’ counsel knew Defendant was waiting for a response prior to preparing this Emergency Motion to Cancel Sale; Attorney Disston had not timely respond to the settlement offer, stating his client had not responded; and during that time — and in complete bad faith and in violation of the withdrawal/waiver of additional fees, costs and credit bid; Disston filed his (Amended) Motion for Attorneys’ fees and Costs (just filed not on Docket yet - See DE 131 filed 1/7/2021). 7 Filing 123215775 THIRD WORLD VS GREATER BLESSED 05-2016-CA-022443-XXXX-XX 34. Disston filed this withdrawn/waived Motion, in bad faith, after fully being aware that the Court left the sale date as is solely due to his withdrawal/waiver of those additional costs, and to correct his legal mistake for his knee jerk reaction in court to withdraw/waive the fees to make sure the sale was not cancelled under any circumstance. 35 Now, Plaintiffs’ counsel wants to “have their cake and eat it too” and have a crammed down sale on Wednesday January 13, 2021; while their Motion for Attorneys’ fees and Costs is renewed without time or hearing to defend against it. Disston is fully aware that he cannot go back after the sale and request previous fees, costs or expenses. 36. This litigation strategy and manipulation of the Court, the system, and the Defendant must be stopped and addressed as to Counsels’ motives, statements, and attempts at bypassing the Defendants’ constitutional rights to a fair trial, to cross examine witnesses, and for due process. 37. The Commercial Broker (The Anderson Group.com) for this refinance attended the Status Conference and was at the settlement conference. He fully cooperated and responded to questions although the Plaintiff had no right to ask certain questions or to attempt to manipulate him to not finance the Defendant. 38 Recently, attempts have been made to destroy the refinancing and no number has been established for a proper payoff. 39. The attorneys’ fees and costs have not been determined to date, and an amended Final Judgment will need to be entered after evidentiary hearing on that matter if the fees and costs are to be granted. 8 Filing 123215775 THIRD WORLD VS GREATER BLESSED 05-2016-CA-022443-XXXX-XX 40. Further, it is being requested that this Court Strike the Bad Faith filed Motion for Attorneys’ fees and Costs, Affidavit of Costs, the Amended Motion for Fees and Costs, and the Affidavit of Costs recently filed. 41 There is an active Church and School/day care on the properties, and this will irrevocably seriously disrupt the academics and worship of the parishioners. 42. Defendant is seeking its attorneys’ fees and costs for the filing and prosecution of this motion. MEMORANDUM OF LAW ON FEES ISSUE ONLY 43 Defendant has addressed the fees issue entitlement and timing, as well as what types of fees can be heard. Further the issue in relation to ‘collateral estoppel.’ 44 This Court has the authority to deny all additional fees and costs based on the Rules of Procedure, as all additional motions or affidavits are untimely or are from other cases, including the appeal and the bankruptcy court. In addition, there was a waiver on the record in the January 6, 2021 hearing. STATE COURT FEES Fla.R.Civ.Pro., Rule 1.525 ‘Any party seeking a judgment taxing costs, attorneys’ fees, or both shall serve a motion no later than 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal, which judgment or notice concludes the action as to that party.” The additional legally insufficient Affidavit for costs was untimely filed on September 30, 2020 in this matter and must be stricken in full. (see DE 116). The Final Judgment was entered December 10, 2019. The initial legally insufficient Motion for Fees was filed December 12, 2019, along with the legally insufficient one-page Affidavit. The current 9 Filing 123215775 THIRD WORLD VS GREATER BLESSED 05-2016-CA-022443-XXXX-XX pending Cost Affidavit was not filed within 30 days as required, and it requested fees incurred in other courts, asked for the fees based on the Bankruptcy Court Preliminary Order, and no invoices are attached to determine reasonableness. Further, the Amended Motion for Fees filed January 11, 2021, was filed untimely, and in bad faith after the plaintiff's waived additional fees on the record. Appellate attorney Fees Fla.R.App.Pro. 9.400 (a) Costs. Costs shall be taxed in favor of the prevailing party unless the court orders otherwise. Taxable costs shall include: (1) fees for filing and service of process; (2) charges for preparation of the record and any hearing or trial transcripts necessary to determine the proceeding; (3) bond premiums; and (4) other costs permitted by law. Costs shall be taxed by the lower tribunal on a motion served no later than 45 days after rendition of the court’s order. If an order is entered either staying the issuance of or recalling a mandate, the lower tribunal is prohibited from taking any further action on costs pending the issuance of a mandate or further order of the court. (b) Attorneys’ Fees. With the exception of motions filed pursuant to rule 9.410(b), a motion for attorneys’ fees shall state the grounds on which recovery is sought and shall be served not later than: (1) in appeals, the time for service of the reply brief: ..... (c) Review. Review of orders rendered by the lower tribunal under this rule shall be by motion filed in the court within 30 days of rendition. The Motion for Appellate Fees would normally be decided by the Appellate Court and was not timely filed with the Reply Brief that was filed 8/20/2020. These fees must be denied in full. 10 Filing 123215775 THIRD WORLD VS GREATER BLESSED 05-2016-CA-022443-XXXX-XX Bankruptcy Fees and Collateral estoppel Rule 54. Judgment: Costs (a) Definition; Form. “Judgment” as used in these rules includes a decree and any order from which an appeal lies. A judgment should not include recitals of pleadings, a master's report, or a record of prior proceedings. (b) Judgment on Multiple Claims or Involving Multiple Parties. When an action presents more than one claim for relief—whether as a claim, counterclaim, crossclaim, or third-party claim—or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay. Otherwise, any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities. (c) Demand for Judgment; Relief to Be Granted. A default judgment must not differ in kind from, or exceed in amount, what is demanded in the pleadings. Every other final judgment should grant the relief to which each party is entitled, even if the party has not demanded that relief in its pleadings. (d) Costs; Attorney's Fees. (1) Costs Other Than Attorney's Fees. Unless a federal statute, these rules, or a court order provides otherwise, costs—other than attorney's fees—should be allowed to the prevailing party. But costs against the United States, its officers, and its agencies may be imposed only to the extent allowed by law. The clerk may tax costs on 14 days’ notice. On motion served within the next 7 days, the court may review the clerk's action. 2) Attorney's Fees. (A) Claim to Be by Motion. A claim for attorney's fees and related nontaxable expenses must be made by motion unless the substantive law requires those fees to be proved at trial as an element of damages. (B) Timing and Contents of the Motion. Unless a statute or a court order provides otherwise. the motion must: (i) be filed no later than 14 days after the entry of judgment: (ii) specify the judgment and the statute, rule, or other grounds entitling the movant to the award; (iii) state the amount sought or provide a fair estimate of it; and (iv) disclose, if the court so orders, the terms of any agreement about fees for the services for which the claim is made. (C) Proceedings. Subject to Rule 23(h), the court must, on a party's request, give an opportunity for adversary submissions on the motion in accordance with Rule 43(c) or 78. The court may decide issues of liability for fees before receiving submissions on the value of services. The court must find the facts and state its conclusions of law as provided in Rule 52{a). (D) Special Procedures by Local Rule; Reference to a Master or a Magistrate Judge. By local tule, the court may establish special procedures to resolve fee-related issues without extensive evidentiary hearings. Also, the court may refer issues concerning the value of 11 Filing 123215775 THIRD WORLD VS GREATER BLESSED 05-2016-CA-022443-XXXX-XX services to a special master under Rule 53 without regard to the limitations of Rule 53(a)(1), and may refer a motion for attorney's fees to a magistrate judge under Rule 72(b) as if it were a dispositive pretrial matter. (E) Exceptions. Subparagraphs (A)-(D) do not apply to claims for fees and expenses as sanctions for violating these rules or as sanctions under 28 U.S.C. 192) The Bankruptcy Court has jurisdiction over its fees, not the State Court Fees. No timely motion was filed in the bankruptcy court within 14 days of the dismissal. Further, the red herring in the untimely legally insufficient Affidavit of Costs filed in this matter, and the Amended Motion for Fees, does not ‘collaterally estop’ this Court from holding a hearing on the fees in this foreclosure case, making its own independent rulings as to the striking of the Motions and Affidavits, or accepting the Plaintiffs counsel waiver on the record in open court. This would be a case of first impression if the Court allows the Plaintiff's position to remain that this Court is ‘collaterally estopped’ from ruling on its own case. There is no case on point that supports the Plaintiff’s position that this Court is collaterally estopped from tuling on her own case and to the fees issue. Any cases cited by Plaintiff’s counsel will be easily distinguishable or go against the proposition presented. The Bankruptcy Order the Plaintiffs rely on is only a Preliminary Order (not a Final Order) for purposes of establishing the claim amount only. The Order states it is not intended to deprive the 5" DCA of its jurisdiction. That would likewise carry over to this Court. Further, the Bankruptcy was dismissed, and no further motions were filed on the right to bankruptcy fees within 14 days of the dismissal. This Court must deny the Plaintiff's request for Bankruptcy fees. 12 Filing 123215775 THIRD WORLD VS GREATER BLESSED 05-2016-CA-022443-XXXX-XX Collateral Estoppel not applicable in our cas Please see Park v. City of West Melbourn, 927 So.2d 5 (5"* DCA 2006) and Gordon v. G ordon, 59 So.2d 40 (Fla. 1952). The cases are attached for your review and analysis. In our instant case, not all the same issues were litigated and there is not a clear cut former adjudication on the merits. Park, Citing Gordon v. Gordon, 59 So.2d 40 (Fla. 1952) at 45. Citing directly from Park: “In Gordon, the Florida Supreme Court held that the test in determining whether judgment by estoppel applies to a case is "whether the evidence in both cases is in essence the same" and whether "every point and question’ presented in the second action was actually litigated and decided in the first." 59 So.2d at 45. For res judicata or collateral estoppel to apply, there must also exist in the prior litigation a "clear-cut former adjudication" on the merits. Dep't of Health & Rehab. Servs. v. LaPlante, 470 So.2d 832, 834 (Fla. 2d DCA 1985); see also R.D.J. Enters., Inc. v. Mega Bank, 600 So.2d 1229, 1231 (Fla. 3d DCA 1992) (holding that collateral estoppel prevents relitigation of issues that have been fully litigated and which resulted in a final decision of a court of competent jurisdiction); Hochstadt v. Orange Broadcast, 588 So.2d 51, 53 n. 2 (Fla. 3d DCA 1991) (stating that "defensive collateral estoppel ‘occurs when a defendant seeks to prevent a plaintiff form asserting a claim the plaintiff has previously litigated and lost against another defendant") (internal citations omitted).” MEMORANDUM OF LAW TO FOLLOW DUE TO BIFURCATION OF ISSUES 45. Contempt. Standard of Review, after Court hearing on March 26, 2021. 46. Defendant is requesting this Honorable Court to hold the evidentiary hearing on the fees issues as scheduled, consider the striking of the fees motions and affidavits, the teasonableness, the timing, the waivers in open court, the limitations as to the types of fees allowed, and any other issues this Court deems fit and proper. WHEREFORE, Defendant prays this Honorable Court grant this Motion and to: a. Hold the evidentiary hearing on attorney’s fees and costs as scheduled, including timing, reasonableness, legal sufficiency, as well as striking the request for additional fees and costs in the State Court, for State Court fees, Appellate Court 13 Filing 123215775 THIRD WORLD VS GREATER BLESSED 05-2016-CA-022443-XXXX-XX fees, and Bankruptcy Court fees, based on the above and additionally Plaintiff's counsel waiver on the record, and, b. For any other relief deemed fit and proper. CERTIFICATE OF SERVICE I HEREBY CERTIFY on March 16, 2021, the foregoing document was filed with the Clerk of the Court using the State of Florida e-filing portal and was served this day on counsel of record via transmission of Notices of Electronic Filing generated by the State of Florida e-filing portal. Respectfully, Submitted /s/Inger M. Garcia, Esq. Florida Litigation Group, P.A. 4839 Volunteer Road, #514 Davie, FL 33330 (954) 394-7461 Fla. Bar No. 0106917 attomey@ingergarcia.com erviceimglaw@yahoo.com attomey@floridalitgroup.com attomey@floridapotlawfirm.com SERVICE LIST All registered on the e-filing list as well as: David Disston, Esq. Shane M. Smith, PA 3845 W. Eau Galle Blvd.,Ste 104 Melbourne, FL 32934 Service@shanesmithlegal.com 14 Filing 123215775 THIRD WORLD VS GREATER BLESSED 05-2016-CA-022443-XXXX-XX 927 So.2d 5 (2006) Bryon D. PARK, Appellant, Vv. CITY OF WEST MELBOURNE, Florida, Appellee. No. S5D05-2226. District Court of Appeal of Florida, Fifth District. February 17, 2006. Rehearing Denied April 25, 2006. o"6 Edward R. Gay, Orlando, for Appellant. Charles Robinson Fawsett, P.A., of Shutts & Bowen LLP, Orlando, for Appellee. ORFINGER, J. Bryon D. Park appeals the summary final judgment entered in favor of the City of West Melbourne ("City") in his action for declaratory relief seeking reinstatement and back pay. We reverse. From the police department's phone bill, Police Chief Brian Lock, learned that a call had been placed from a department phone line to the Astrological Society psychic hotline, incurring a charge of $39.95. He questioned several police officers, including Park, about the call. Park claimed that he had no knowledge of anyone calling a 1-900 number or any psychic service, and signed a written statement to that effect. After learning that the police department had been charged for a call to a psychic hotline, and that Chief Lock was looking into the matter, Officer "Bo" Bryant admitted to Chief Lock that he had called the psychic phone line. According 7 to Bryant, he had seen an advertisement for the psychic line, which claimed that any call under three minutes would be free. Bryant told Chief Lock that Park had timed the call to make sure that he was not on the phone longer than three minutes. Based on Bryant's admission, Chief Lock began an internal investigation to determine if Park had provided false testimony, and, as a result, violated the police department's Uniform Standards of Conduct, which Park had agreed to as a condition of his employment. Chief Lock interviewed Park and advised him that the investigation could lead to disciplinary action, demotion, or dismissal. Even after being confronted with Bryant's admission, Park still maintained that he had not called the psychic hotline, nor did he remember Bryant calling the psychic hotline while he timed the call. However, Park conceded that he was having family problems around the time when the call was placed, and if Bryant said that he participated in the call, he probably did; he simply did not remember it. 15 Filing 123215775 THIRD WORLD VS GREATER BLESSED 05-2016-CA-022443-XXXX-XX Mark K. Ryan is the City's Chief Executive Officer and is the only City employee with authority to discharge City employees. Based on Chief Lock's investigation, Ryan wrote to Park, setting forth the allegations against him and advising him that Chief Lock had recommended that Park's employment with the City be terminated. Ryan advised Park that before a final decision on his employment was made, Park could meet with him and present his side of the story. A pre- termination meeting was held, attended by Ryan, Chief Lock, Park, Park's attorney, and an attorney for the City. Following the meeting, Ryan decided to discharge Park based on his dishonesty about his participation in the call to the psychic hotline. Ryan's discharge letter to Park stated: Ihave decided to terminate your employment with the City of West Melbourne. J advise you that you are entitled to a subsequent public, evidentiary hearing before a person selected and empowered by the City to set aside, modify or affirm this decision. The issue in this hearing would be whether the City's decision to terminate your employment was arbitrary, pretextual or for an improper motive. This hearing would meet the requirements of due process of law under the 14th Amendment of the United States Constitution and applicable statutory and case law. If you wish to have such a hearing, please request it in writing to me within 15 days from the date of this letter. Your failure to request such a hearing in writing within such time will be considered a waiver of any right to such a hearing. In response, Park requested a public evidentiary hearing on the matter! William Hall, the town manager of the Town of Malabar, was appointed to serve as the hearing officer. In a letter to the hearing officer discussing his appointment and the scope of the hearing, Ryan wrote: The purpose of this hearing is for you to determine whether the City's decision to terminate a police officer was or was not °*® arbitrary, capricious, pretextual, or for an improper motive. You are hereby empowered to set aside, modify or affirm the City's decision following your review of the evidence presented at this hearing. After the hearing, the hearing officer concluded that the City had failed to meet its burden to prove by a preponderance of the evidence that its termination of Park was for just cause and ordered Park's "immediate reinstatement as a police officer for the City of West Melbourne, along with back pay." The City, believing that the hearing officer had "departed in a very material way from the instructions he had been given by the City regarding his role" in the hearing, did not reinstate Park, but, instead, filed a petition for a writ of certiorari in the circuit court, seeking to set aside the hearing officer's decision. The trial court agreed with the City that the hearing officer's role was limited to deciding whether the City's decision to discharge Park was arbitrary, capricious, pretextual, or for an improper motive, and concluded that the hearing officer was not empowered to reweigh the evidence. Since the City's decision was not arbitrary, capricious, pretextual, or for 16 Filing 123215775 THIRD WORLD VS GREATER BLESSED 05-2016-CA-022443-XXXX-XX an improper motive, the trial court granted the City's certiorari petition, quashed the hearing officer's decision, and confirmed the City's decision to discharge Park. Park then sought review in this Court. We quashed the circuit court's decision, holding that under Grice v, City of Kissimmee, 697 So.2d 186 (Fla. Sth DCA 1997). a police officer who is not a probationary or at-will employee is entitled to a due process hearing before his termination is final, and "when the termination is based on the testimony of witnesses ... as a matter of constitutional due process, the officer must be permitted to confront and cross-examine the witness." Park v. City of West Melbourne, 769 So.2d 397, 398 (Fla. 5th DCA 2000) (Park 1). This Court reasoned that since Park was not afforded a hearing where he could confront and cross-examine the witnesses against him before his termination became final, Park was denied procedural due process. /d. Park then filed a petition for a writ of mandamus in the circuit court, seeking reinstatement with back pay, consistent with the hearing officer's ruling. The circuit court order denied Park's mandamus petition, concluding that Park "did not establish a clear legal right to reinstatement to employment with the City of West Melbourne with back pay, the relief requested..." That ruling was affirmed by this Court. Park v. Ryan, 821 So.2d 1082 (Fla. Sth DCA 2002) (Table) (Park IN. Not being easily deterred, Park then filed an action seeking, by means of a declaratory judgment, reinstatement to City employment and back pay. Both Park and the City subsequently filed motions for summary judgment. The trial court granted the City's motion, concluding that it had previously decided with finality in the mandamus proceeding that Park "did not establish a clear legal right to reinstatement with back pay," and, consequently, the issue was barred by judgment by estoppel. This appeal followed. A final order granting summary judgment is reviewed de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). A court may grant summary judgment "if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law." /d. (citing Menendez v. Palms W. Condo, Ass'n, 736 So.2d 58 (Fla. 1st DCA 1999)). In the proceedings below, the circuit court concluded that under Gordon vy. Gordon, 59 So.2d 40 (Fla.1952), Park was estopped ’*® from litigating his entitlement reinstatement with back pay based on the court's earlier denial of Park's petition for writ of mandamus. On appeal, Park argues that the trial court erred in concluding that his complaint seeking declaratory relief, injunctive relief, and damages against the City is barred by the doctrine of judgment by estoppel We agree. In Gordon, the Florida Supreme Court held that the test in determining whether judgment by estoppel applies to a case is "whether the evidence in both cases is in essence the same" and whether "every point and question’ presented in the second action was actually litigated and decided in the first." 59 So.2d at 45. For res judicata or collateral estoppel to apply, there must also exist in the prior litigation a "clear-cut former adjudication" on the merits. Dep't of Health & Rehab. Servs. y. LaPlante, 470 So.2d 832, 834 (Fla. 2d DCA 1985); see also R.D.J. Enters., Inc. 17 Filing 123215775 THIRD WORLD VS GREATER BLESSED 05-2016-CA-022443-XXXX-XX v. Mega Bank, 600 So.2d 1229, 1231 (Fla. 3d DCA 1992) (holding that collateral estoppel prevents relitigation of issues that have been fully litigated and which resulted in a final decision of a court of competent jurisdiction); Hochstadt v. Orange Broadcast, 588 So.2d 51, 53 n. 2 (Fla. 3d DCA 1991) (stating that "defensive collateral estoppel ‘occurs when a defendant seeks to prevent a plaintiff form asserting a claim the plaintiff has previously litigated and lost against another defendant") (internal citations omitted). Consequently, we must determine if the trial court's denial of Park's petition for writ of mandamus decided the issues presented in Park's current complaint on the merits. See Dep't of Health & Rehab. Servs. v. B.J.M., 656 So.2d 906, 910 (Fla. 1995) (noting that Florida courts have emphasized that judgment by estoppel "precludes relitigation of issues actually litigated in a prior proceeding") (emphasis in original). Under this standard, we conclude that estoppel by judgment does not bar Park's action, because no adjudication on the merits occurred in the mandamus proceeding. "[M]Jandamus may be used only to enforce a clear and certain right; it may not be used to establish such a right, but only to enforce a right already clearly and certainly established in the law." Milanick v. Town of Beverly Beach, 820 So.2d 317, 320 (Fla. 5th DCA 2001) (citing Fla. League of Cities v. Smith, 607 So.2d 397, 400-01 (Fla.1992)). In denying Park's petition for writ of mandamus, the trial court merely concluded that Park "did not establish a clear legal right to reinstatement to employment with [the City] with back pay, the relief requested...." The trial court's decision to deny Park mandamus relief was predicated in large part on its belief that our opinion in Park I mandated that the City provide Park with a due process, evidentiary hearing. We think that conclusion misconstrues our earlier decisions. In Park [, we readopted our holding in Grice that "if the City is going to terminate someone on the basis of the testimony of other witnesses then the officer must, as a matter of constitutional due process, at some point—either a pre-termination hearing or at a post-termination hearing—be permitted to confront those witnesses and cross examine them.” Grice, 697 So.2d at 190. We did not remand Park | with directions to hold a pre-termination hearing, nor could we have done so. "[A]fter review by certiorari, an appellate court can only quash the lower court order; it has no authority to direct the lower court to enter contrary orders." Gulf Oil Realty Co. v. Windhover Ass'n, Inc., 403 So.2d 476, 478 (Fla. 5th DCA 1981). When we quashed the circuit court's order in ParkI, the hearing officer's ruling was left standing. ) The City concedes that it was proper for Park to seek enforcement of the hearing officer's ruling by mandamus or declaratory relief. Park initially chose mandamus relief but was rebuffed on procedural grounds. That was not adjudication on the merits and does not bar this action. Consequently, summary judgment was improper. Finally, the City argues that the statute of limitations also bars Park's claim. We decline to rule on that issue as it was never considered in the trial court. REVERSED AND REMANDED. GURROLA, B., Associate Judge, concurs. 18 Filing 123215775 THIRD WORLD VS GREATER BLESSED 05-2016-CA-022443-XXXX-XX TORPY, J., concurs and concurs specially, with opinion. TORPY, J., concurring and concurring specially. I concur in the opinion of the majority. I write to address a potential misconception brought about by the panel opinion in Park J. There, we stated: Tn the instant case, since there had been only an internal investigation plus a recommendation from the chief to the city manager that Park be fired, and no pretermination hearing during which Park could confront the witne