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Filing # 69076395 E-Filed 03/09/2018 04:21:26 PM
IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT
IN AND FOR MIAMI-DADE COUNTY, FLORIDA
APPELLATE DIVISION
Case No.: 17-430 AP
L.T. Case No.: 09-8981 SP-26
MARK J. FELDMAN, P.A.,
Appellant
Vv.
STATE FARM MUTUAL
AUTOMOBILE INSURANCE
COMPANY,
and
APPLE MEDICAL CENTER, LLC,
a/a/o JOAN PEREZ,
Appellees
/
APPELLEE APPLE MEDICAL’S MOTION FOR SANCTIONS
BASED ON FLA. STAT. 57.105 and RULE 9.410 FLA.R.APP.P.
Respondent APPLE MEDICAL CENTER, LLC., as the assignee of Joan
Perez, respectfully moves this Court for an award of attorney’s fees and costs,
pursuant to Fla. Stat. 57.105 and Rule 9.410 of the Florida Rules of Appellate
Procedure, and as grounds therefore states:
1 Appellant Mark J. Feldman, P.A. through its counsel Mark J. Feldman,
Esq., appealed the trial court’s November 17, 2017, order denying it’s
motion to intervene in the underlying case.2 Inits July 3, 2017 Motion to Intervene filed below, Appellant claimed it
was entitled to attorney’s fees incurred in defending an appeal filed by
State Farm, in which it prevailed, when the appellate court granted
entitlement to attorney’s fees in favor of Apple Medical on grounds that
State Farm had previously filed a frivolous appeal.
3 More than 2 years after the appellate court awarded fee entitlement to
Apple Medical based on the frivolous appeal, Apple Medical and State
Farm achieved a confidential settlement agreement which required Apple
Medical to dismiss dozens of lawsuits pending against State Farm. The
underlying case (Apple Medical a/a/o Joan Perez v. State Farm, Miami-
Dade County Court Case No.: 09-8981-SP-26), was one of the cases that
was dismissed - with prejudice - by Appellee Apple Medical pursuant to
the terms of the settlement between Apple Medical and State Farm.
Apple Medical’s Stipulation and Notice of Voluntary Dismissal was
served on July 13, 2017. Appellee Apple Medical did not receive any
money from Appellee State Farm in exchange for its dismissal.
4 After Apple Medical dismissed its cases against State Farm, Appellant
initiated ‘machine gun’ motion practice in which it began filing post-
dismissal motions to intervene, along with post-dismissal motions to file
supplemental complaints, etc.5 However, when Appellee Apple Medical dismissed the underlying case
on July 13, 2017, the lower court was instantly divested of jurisdiction to
adjudicate any of the motions filed by Appellant, including his motion to
intervene, and as such the court below correctly denied Appellant’s
motion to intervene.
6 Appellant claims he sought to intervene below in order to protect an
alleged lien for attorney’s fees. However, the attorney’s fees sought by
Appellant through its motion to intervene below are the exact same
attorney’s fees he sued for in a related lawsuit filed in the Miami-Dade
Circuit Court in a case known as: Mark J. Feldman, P.A. v. Apple
Medical Center, LLC., 14-21828-CA-01(15), which remains active and
pending.
7 Apple Medical’s voluntary dismissal (with prejudice) of its lawsuit
against State Farm below served to terminate the litigation between the
parties and instantaneously divest the court of jurisdiction to entertain
further motions. Pino v. Bank of New York 121 So. 3d 23 (Fla 2013). A
trial court completely loses jurisdiction to entertain any claims attempted
to be asserted by intervenors after a plaintiff serves a voluntary dismissal.
Hoechst Celanese Corp. v. Fry 693 So. 2d 1003 (Fla 3! DCA 1997). A
voluntary dismissal by a plaintiff forecloses the rights of an intervenor.Environmental Confederation of Southwest Florida, Inc. v. IMC
Phosphates, Inc. 857 So. 2d 207 (Fla. 1‘ DCA 2003). Once the litigation
is terminated by a dismissal from a plaintiff, the rights of the intervenor
cease to exist. State of Florida v. Florida Workers’ Advocates 167 So. 3d
500 (Fla 3% DCA 2015). The rights of an intervenor are subordinate to
the rights of the parties. /d., Hoechst, supra, and Bay Park Towers
Condo v. H. J. Ross 503 So. 2d 1333 (Fla 3! DCA 1987). The rights of
intervenors are subordinate to the original parties and they exist only as
long as the litigation continues. More importantly, the right of a plaintiff
to voluntarily dismiss its litigation is absolute. Estate of Williams v.
Jursinski, 160 So. 3d 500 (Fla 2"! DCA 2015) and Kelly v. Colston 977
So. 2d 692 (Fla 1%* DCA 2008). The rights of an intervenor are
conditional in that they exist only so long as the litigation continues
between the parties. Clafin v. Clafin 202 So. 3d 908 (Fla 3“ DCA 2016).
8 In the case below, the Appellant was never an intervenor. Instead, he
was — at best — an entity seeking to intervene. His status was never
elevated to that of an intervenor and his rights as an entity seeking to
intervene are therefore inferior to those of an entity that actually secured
an order allowing it to intervene.
9 Appellee Apple Medical contends that the instant appeal challenging theNovember 15, 2017 order denying its motion to intervene lacks merit.
10 Appellee Apple Medical contends that Appellant and its counsel have
taken a position that is untenable, frivolous, and baseless in the instant
case and that Mark J. Feldman, P.A., and its counsel, Mark J. Feldman,
Esq., have declined take corrective action when offered an opportunity to
do so.
11 On January 12, 2018, Appellee Apple Medical served Appellant and its
counsel with a notice of intent to seek sanctions based on Fla. Stat.
57.105 and Rule 9.410 Fla.R.App.P. More than 21 days have passed
since Appellee Apple Medical served its letter / notice to Appellant and
its counsel, and Appellant has failed or otherwise refused to withdraw the
frivolous appeal.
12 Florida Statute 57.105 provides that:
(1) Upon the court's initiative or motion of any party, the court shall award a
reasonable attorney's fee, including prejudgment interest, to be paid to the
prevailing party in equal amounts by the losing party and the losing party's
attorney on any claim or defense at any time during a civil proceeding or
action in which the court finds that the losing party or the losing party's
attorney knew or should have known that a claim or defense when initially
presented to the court or at any time before trial:
(a) Was not supported by the material facts necessary to establish the claim
or defense; or(b) Would not be supported by the application of then-
existing law to those material facts.
(2) At any time in any civil proceeding or action in which the moving party
proves by a preponderance of the evidence that any action taken by the
opposing party, including, but not limited to, the filing of any pleading or part
thereof, the assertion of or response to any discovery demand, the assertion
of any claim or defense, or the response to any request by any other party,
was taken primarily for the purpose of unreasonable delay, the court shall
award damages to the moving party for its reasonable expenses incurred in
obtaining the order, which may include attorney's fees, and other loss
resulting from the improper delay.13 Appellee Apple Medical has incurred attorney’s fees in preparing this
motion, and will continue to incur additional attorney’s fees and costs
opposing the meritless appeal filed by Appellant and its counsel in these
proceedings.
WHEREFORE, the Appellee Apple Medical seeks an award of all attorney’s fees
and costs as permitted by Florida law pursuant to Fla. Stat. 57.105 and Rule 9.410,
Fla.R.App.P.. Appellee Apple Medical seeks any and all other relief this Court
deems just and proper under the circumstances.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
electronically served via Florida E-portal to: Defendant’s counsel, Roig Lawyers
(pleadings@roiglawyers.com) and Mr. Mark J. Feldman, Esq.
(feldmanlawfirm@bellsouth.net) on this 9" day of March, 2018.
/s/ Kenneth B. Schurr. Esq.
Kenneth B. Schurr, Esq.
Attorney for Plaintiff
2030 S. Douglas Road, Suite 105
Coral Gables, Florida 33134
(305) 441-9031
Preview
Filing # 69076395 E-Filed 03/09/2018 04:21:26 PM IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA APPELLATE DIVISION Case No.: 17-430 AP L.T. Case No.: 09-8981 SP-26 MARK J. FELDMAN, P.A., Appellant Vv. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, and APPLE MEDICAL CENTER, LLC, a/a/o JOAN PEREZ, Appellees / APPELLEE APPLE MEDICAL’S MOTION FOR SANCTIONS BASED ON FLA. STAT. 57.105 and RULE 9.410 FLA.R.APP.P. Respondent APPLE MEDICAL CENTER, LLC., as the assignee of Joan Perez, respectfully moves this Court for an award of attorney’s fees and costs, pursuant to Fla. Stat. 57.105 and Rule 9.410 of the Florida Rules of Appellate Procedure, and as grounds therefore states: 1 Appellant Mark J. Feldman, P.A. through its counsel Mark J. Feldman, Esq., appealed the trial court’s November 17, 2017, order denying it’s motion to intervene in the underlying case.2 Inits July 3, 2017 Motion to Intervene filed below, Appellant claimed it was entitled to attorney’s fees incurred in defending an appeal filed by State Farm, in which it prevailed, when the appellate court granted entitlement to attorney’s fees in favor of Apple Medical on grounds that State Farm had previously filed a frivolous appeal. 3 More than 2 years after the appellate court awarded fee entitlement to Apple Medical based on the frivolous appeal, Apple Medical and State Farm achieved a confidential settlement agreement which required Apple Medical to dismiss dozens of lawsuits pending against State Farm. The underlying case (Apple Medical a/a/o Joan Perez v. State Farm, Miami- Dade County Court Case No.: 09-8981-SP-26), was one of the cases that was dismissed - with prejudice - by Appellee Apple Medical pursuant to the terms of the settlement between Apple Medical and State Farm. Apple Medical’s Stipulation and Notice of Voluntary Dismissal was served on July 13, 2017. Appellee Apple Medical did not receive any money from Appellee State Farm in exchange for its dismissal. 4 After Apple Medical dismissed its cases against State Farm, Appellant initiated ‘machine gun’ motion practice in which it began filing post- dismissal motions to intervene, along with post-dismissal motions to file supplemental complaints, etc.5 However, when Appellee Apple Medical dismissed the underlying case on July 13, 2017, the lower court was instantly divested of jurisdiction to adjudicate any of the motions filed by Appellant, including his motion to intervene, and as such the court below correctly denied Appellant’s motion to intervene. 6 Appellant claims he sought to intervene below in order to protect an alleged lien for attorney’s fees. However, the attorney’s fees sought by Appellant through its motion to intervene below are the exact same attorney’s fees he sued for in a related lawsuit filed in the Miami-Dade Circuit Court in a case known as: Mark J. Feldman, P.A. v. Apple Medical Center, LLC., 14-21828-CA-01(15), which remains active and pending. 7 Apple Medical’s voluntary dismissal (with prejudice) of its lawsuit against State Farm below served to terminate the litigation between the parties and instantaneously divest the court of jurisdiction to entertain further motions. Pino v. Bank of New York 121 So. 3d 23 (Fla 2013). A trial court completely loses jurisdiction to entertain any claims attempted to be asserted by intervenors after a plaintiff serves a voluntary dismissal. Hoechst Celanese Corp. v. Fry 693 So. 2d 1003 (Fla 3! DCA 1997). A voluntary dismissal by a plaintiff forecloses the rights of an intervenor.Environmental Confederation of Southwest Florida, Inc. v. IMC Phosphates, Inc. 857 So. 2d 207 (Fla. 1‘ DCA 2003). Once the litigation is terminated by a dismissal from a plaintiff, the rights of the intervenor cease to exist. State of Florida v. Florida Workers’ Advocates 167 So. 3d 500 (Fla 3% DCA 2015). The rights of an intervenor are subordinate to the rights of the parties. /d., Hoechst, supra, and Bay Park Towers Condo v. H. J. Ross 503 So. 2d 1333 (Fla 3! DCA 1987). The rights of intervenors are subordinate to the original parties and they exist only as long as the litigation continues. More importantly, the right of a plaintiff to voluntarily dismiss its litigation is absolute. Estate of Williams v. Jursinski, 160 So. 3d 500 (Fla 2"! DCA 2015) and Kelly v. Colston 977 So. 2d 692 (Fla 1%* DCA 2008). The rights of an intervenor are conditional in that they exist only so long as the litigation continues between the parties. Clafin v. Clafin 202 So. 3d 908 (Fla 3“ DCA 2016). 8 In the case below, the Appellant was never an intervenor. Instead, he was — at best — an entity seeking to intervene. His status was never elevated to that of an intervenor and his rights as an entity seeking to intervene are therefore inferior to those of an entity that actually secured an order allowing it to intervene. 9 Appellee Apple Medical contends that the instant appeal challenging theNovember 15, 2017 order denying its motion to intervene lacks merit. 10 Appellee Apple Medical contends that Appellant and its counsel have taken a position that is untenable, frivolous, and baseless in the instant case and that Mark J. Feldman, P.A., and its counsel, Mark J. Feldman, Esq., have declined take corrective action when offered an opportunity to do so. 11 On January 12, 2018, Appellee Apple Medical served Appellant and its counsel with a notice of intent to seek sanctions based on Fla. Stat. 57.105 and Rule 9.410 Fla.R.App.P. More than 21 days have passed since Appellee Apple Medical served its letter / notice to Appellant and its counsel, and Appellant has failed or otherwise refused to withdraw the frivolous appeal. 12 Florida Statute 57.105 provides that: (1) Upon the court's initiative or motion of any party, the court shall award a reasonable attorney's fee, including prejudgment interest, to be paid to the prevailing party in equal amounts by the losing party and the losing party's attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party's attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial: (a) Was not supported by the material facts necessary to establish the claim or defense; or(b) Would not be supported by the application of then- existing law to those material facts. (2) At any time in any civil proceeding or action in which the moving party proves by a preponderance of the evidence that any action taken by the opposing party, including, but not limited to, the filing of any pleading or part thereof, the assertion of or response to any discovery demand, the assertion of any claim or defense, or the response to any request by any other party, was taken primarily for the purpose of unreasonable delay, the court shall award damages to the moving party for its reasonable expenses incurred in obtaining the order, which may include attorney's fees, and other loss resulting from the improper delay.13 Appellee Apple Medical has incurred attorney’s fees in preparing this motion, and will continue to incur additional attorney’s fees and costs opposing the meritless appeal filed by Appellant and its counsel in these proceedings. WHEREFORE, the Appellee Apple Medical seeks an award of all attorney’s fees and costs as permitted by Florida law pursuant to Fla. Stat. 57.105 and Rule 9.410, Fla.R.App.P.. Appellee Apple Medical seeks any and all other relief this Court deems just and proper under the circumstances. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been electronically served via Florida E-portal to: Defendant’s counsel, Roig Lawyers (pleadings@roiglawyers.com) and Mr. Mark J. Feldman, Esq. (feldmanlawfirm@bellsouth.net) on this 9" day of March, 2018. /s/ Kenneth B. Schurr. Esq. Kenneth B. Schurr, Esq. Attorney for Plaintiff 2030 S. Douglas Road, Suite 105 Coral Gables, Florida 33134 (305) 441-9031