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HomeMy WebLinkAboutReso 2015-2445 RESOLUTION NO. 2015.-2445 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA RATIFYING AN AGREEMENT TO RETAIN THE SERVICES OF THE LAW FIRM OF HOLLAND AND KNIGHT LLP AND SPECIFICALLY RODOLFO SORONDO JR., ESQ. AND CHRISTOPHER N. BELLOWS, ESQ. TO REPRESENT THE CITY IN PROCEEDINGS IN THE THIRD DISTRICT COURT OF APPEAL; AUTHORIZING THE CITY ATTORNEY TO DO ALL THINGS NECESSARY TO EFFECTUATE THE TERMS OF THIS RESOLUTION; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City has filed an appeal in the Third District Court of Appeal of the State of Florida in Case No. 12-26693 CA 09, City of Sunny Isles Beach vs. Calvary Corp., appealing the Final Judgment. WHEREAS the City Attorney has retained the services of the law firm of Holland and Knight LLP to provide legal services in matters relating to the appeal; and WHEREAS, the law firm of Holland and Knight LLP is highly qualified to represent the City as special counsel to the City; and WHEREAS, the City Commission wishes to ratify the terms and conditions outlined in the agreement to retain the services of Holland and Knight LLP, attached hereto as Exhibit "A". NOW THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, AS FOLLOWS: Section 1. Ratifying the Agreement. The Agreement with Holland and Knight LLP, attached hereto as Exhibit "A" is hereby ratified. Section 2. Authorization of the City Attorney. The City Attorney is hereby authorized to do all things necessary to effectuate this Resolution. • Section 3. Effective Date. This Resolution shall become effective upon adoption. PASSED AND ADOPTED this 16th day of July 2015. Geor H. Scholl, Mayor Ratifying an Agreement with Holland& Knight. t 'ATTEST: (:::±, . . _ awl-- t 'I'‘)\-.d'i at:v`AD Jane.A. 'nes, MMC, City Clerk a. APPROVED AS TO FORM AND r ! SUFFICIENCY: A ...., ,A ills, .� G it7 ot, i y Attorney Moved by: Lc.v 1 Il c Seconded by: ep GO L t1'A Yea/ Vote: rj-0 Mayor Scholl ✓(Yes) (No) Vice Mayor Gatto V (Yes) (No) Commissioner Aelion L/(Yes) (No) Commissioner Levin ✓(Yes) (No) Commissioner Goldman I/(Yes) (No) Ratifying an Agreement with Holland& Knight. • Holland & Knight 701 Brickeil Avenue,Suite 3300 I Miami,FL 33131 I T 305.374.8500 I F 305.789.7799 Holland&Knight LLP I www.hkiaw.com Christopher N.Bellows (305)789-7735 christopher.bellows@hklaw.com June 15, 2015 Hans Ottinot, Esq. City Attorney City of Sunny Isles Beach 18070 Collins Avenue Sunny Isles Beach, Florida 33160 Re: Holland & Knight Representation Appeal of Sunny Isles Beach, etc., v. Calvary Corp., etc., et al Case No.: 12-26693CA09 Dear Mr. Ottinot: Thank you for retaining Holland & Knight LLP to represent the City of Sunny Isles Beach in connection with the captioned case, including proceedings in the Third District Court of Appeal. We appreciate the opportunity to work with you on this matter. The purpose of this letter is to confirm our engagement as counsel for this matter. • Although we do not wish to be overly formal in our relationship with you, we have found it a helpful practice to confirm with our client the nature and terms of our . representation. I will be principally responsible for handling this matter. As a discount to the City, the matter will be billed at a blended rate of $500 per hour for me, Rodolfo Sorondo, Jr. and Rebecca Plasencia. My normal billing rate is $585; Mr. Sorondo's normal rate is $785 and Ms. Plasencia's (senior counsel) normal rate is $435 per hour. Any associate will be billed at their standard rate, not to exceed $325 per hour and any paralegal will be billed at their standard rate, not to exceed $150 (our appellate paralegal's normal rate is $235). • Atlanta i Boston I Chicago I Dallas I Fort Lauderdale I Jacksonville I Lakeland I Los Angeles I Miami I New York I Northern Virginia I Orlando I Portland I San Francisco I Tallahassee I Tampa I Washington,D.C. I West Palm Beach • • EXHIBIT "A" The fees and costs incurred by Holland & Knight in handling this matter will be paid by you and will be billed in accordance with Holland & Knight's standard terms of engagement, which are attached. If the terms described above and in the attached terms of engagement are satisfactory, please so indicate by signing and returning the enclosed copy of this letter. Sincer- yours, O 1 & KNIGHT LLP Christopher N. Bellows City of Sunny Isles Bea /AIN Accepted by: f 97 Lrr‘ O + 7+ 4+ atr\e Print Name and Title Dated: //S CNB/nt ( 1 i . I HOLLAND &KNIGHT LLB' TERMS OF ENGAGEMENT We appreciate your decision to retain Holland&Knight LLP as your legal counsel. This document explains how we work, our obligations to you,your obligations to us,what we will do on your behalf, and how our charges will be determined and billed. Experience has shown that an understanding of these matters will contribute to a better relationship between us, and that in turn makes our efforts more productive. Our engagement and the services that we will provide to you are limited to the matter identified in the accompanying letter. Any changes in the scope of our representation as described in the letter must be approved in writing. We will provide services of a strictly legal nature related to the matters described in that letter. You will provide us with the factual information and materials we require to perform the services identified in the letter,and you will make such business or technical decisions and determinations as are appropriate. You will not rely on us for business, investment, or accounting decisions, or expect us to investigate the character or credit of persons or entities with whom you may be dealing,unless otherwise specified in the letter. We cannot guarantee the outcome of any matter. Any expression of our professional judgment regarding your matter or the potential outcome is,of course,limited by our knowledge of the facts and based on the law at the time of expression. It is also subject to any unknown or uncertain factors or conditions beyond our control. Confidentiality and Related Matters Regarding the ethics of our profession that will govern our representation,several points deserve emphasis. As a matter of professional responsibility, we are required to hold confidential all information relating to the representation of our clients, subject to certain exceptions that we will discuss with you. This professional obligation and the legal privilege for attorney-client communications exist to encourage candid and complete ( communication between a client and his lawyer. We can perform truly beneficial services for a client only if we are aware of all information that might be relevant to our representation. Consequently, we trust that our attorney-client relationship with you will be based on mutual confidence and unrestrained communication that will facilitate our proper representation of you. Additionally, you should be aware that, in instances in which we represent a corporation or other entity, our client relationship is with the entity and not with its individual executives, shareholders, directors, members, managers,partners,or persons in similar positions,or with its parent,subsidiaries,or other affiliates. In those cases, our professional responsibilities are owed only to that entity, alone, and no conflict of interest will be asserted by you because we represent persons with respect to interests that are adverse to individual persons or business organizations who have a relationship with you. That is to say, unless the letter accompanying this document indicates otherwise,Holland&Knight's attorney-client relationship with the entity does not give rise to an attorney-client relationship with the parent, subsidiaries or other affiliates of the entity, and representation of the entity in this matter will not give rise to any conflict of interest in the event other clients of the firm are adverse to the parent,subsidiaries or other affiliates of the entity. Of course,we can also represent individual executives, shareholders, directors, members, managers, partners, and other persons related to the entity in matters that do not conflict with the interests of the entity, but any such representation will be the subject of a separate engagement letter. Similarly,when we represent a party on an insured claim,we represent the insured,not the insurer,even though we maybe approved,selected,or paid by the insurer. The firm attempts to achieve efficiencies and savings for its clients by managing the firm's administrative operations (e.g., file storage, document duplication, word processing, accounting/billing) in the most efficient manner possible, including outsourcing certain functions to third parties. Outsourcing in this manner may require the firm to allow access by third parties to your confidential information,and in some cases,these third i t . parties may be located outside the United States.The firm will follow applicable legal ethics rules with regard to such outsourcing and protection of confidential information. Fees and Billing Clients frequently ask us to estimate the fees and other charges they are likely to incur in connection with a particular matter. We are pleased to respond to such requests whenever possible with an estimate based on our professional judgment. This estimate always carries the understanding that, unless we agree otherwise in writing, it does not represent a maximum, minimum, or fixed fee quotation. The ultimate cost frequently is more or less than the amount estimated. Legal Fees. We encourage flexibility in determining billing arrangements. For example,we often agree with our clients to perform services on a fixed-fee or other basis that we and the client believe will encourage efficiency and reflect the value of our services in relation to a particular objective. If you and we have agreed on a fixed fee arrangement,our fees will not be limited to the fixed amount if you fail to make a complete and accurate disclosure of information that we have requested and that we reasonably require for our work,or if you materially change the terms,conditions,scope,or nature of the work,as described by you when we determined the fixed amount. If any of these events occurs, our fees will be based upon the other factors described below,unless you and we agree on a revised fixed fee. If the accompanying engagement letter does not provide for a fixed fee,or if we do not otherwise confirm to you in writing a fee arrangement,our fees for services will be determined as described in the following paragraphs. When establishing fees for services that we render, we are guided primarily by the time and labor required, although we also consider other appropriate factors, such as the novelty and difficulty of the legal issues involved;the legal skill required to perform the particular assignment; time-saving use of resources(including research, analysis, data and documentation) that we have previously developed and stored electronically or otherwise in quickly retrievable form;the fee customarily charged by comparable firms for similar legal services; the amount of money involved or at risk and the results obtained; and the time constraints imposed by either you or the circumstances. In determining a reasonable fee for the time and labor required for a particular matter,we consider the ability,experience,and reputation of the lawyer or lawyers in our firm who perform the services. To facilitate this determination, we internally assign to each lawyer an hourly rate based on these factors. Of course, our internal hourly rates change periodically to account for increases in our cost of delivering legal service, other economic factors, and the augmentation of a particular lawyer's ability, experience, and reputation. Any such changes in hourly rates are applied prospectively, as well as to unbilled time previously expended. We record and bill our time in one-tenth hour(six minute)increments. When selecting lawyers to perform services for you,we generally seek to assign lawyers having the lowest hourly rates consistent with the skills, time demands, and other factors influencing the professional responsibility involved in each matter. That does not mean that we will always assign a lawyer with a lower hourly rate than other lawyers. As circumstances require,the services of lawyers in the firm with special skills or experience may be sought when that will either(a)reduce the legal expense to you,(b)provide a specialized legal skill needed,or (c)help move the matter forward more quickly. Also,to encourage the use of such lawyers in situations where their services can provide a significant benefit that is disproportionate to the time devoted to the matter,we may not bill for their services on an hourly rate basis but,if you agree in advance,we will adjust the fee on an"added value"basis at the conclusion of the matter if and to the extent their services contribute to a favorable result for you. Disbursements. In addition to legal fees, our statements will include out-of-pocket expenses that we have advanced on your behalf and our internal charges (which may exceed direct costs and allocated overhead expenses) for certain support activities. Alternatively, the firm may charge for such internal charges as a percentage of the fees charged. Advanced expenses generally will include,but are not limited to,such items as travel, postage, filing, recording, certification, and registration fees charged by governmental bodies. Our internal charges typically include, but are not limited to, such items as toll calls, facsimile transmissions, overnight courier services, certain charges for terminal time for computer research and complex document production,and charges for photocopying materials sent to the client or third parties or required for our use. We may request an advance cost deposit when we expect that we will be required to incur substantial costs on behalf of the client. • During the course of our representation, it may be appropriate to hire third parties to provide services on your behalf. These services may include such things as consulting or testifying experts, investigators, providers of computerized litigation support,and court reporters. Because of the legal"work product"protection afforded to services that an attorney requests from third parties,in certain situations our firm may assume responsibility for retaining the appropriate service providers. Even if we do so,however,you will be responsible for paying all fees and expenses directly to the service providers or reimbursing us for these expenses. The firm attempts to achieve efficiencies and savings for its clients when dealing with independent contractors. The firm may be able to obtain a reduced charge from the contractor if the firm provides certain functions,such as billing, collection, equipment, space, facilities, or clerical help. For these administrative and coordination services,the firm may charge an administrative fee,which will be separately disclosed to you. Billing.We bill periodically throughout the engagement for a particular matter,and our periodic statements are due when rendered. If our fees are based primarily on the amount of our time devoted to the matter, our statements will be rendered monthly. In instances in which we represent more than one person with respect to a matter,each person that we represent is jointly and severally liable for our fees and expenses with respect to the representation. Our statements contain a concise summary of each matter for which legal services are rendered and a fee is charged. If a statement remains unpaid for more than 3o days,you will be contacted by an H&K representative inquiring why it is unpaid. Additionally, if a statement has not been paid within 3o days from its date, the firm may impose an interest charge of 1.25 percent per month (a 15 percent annual percentage rate) from the 3oth day after the date of the statement until it is paid in full. Interest charges apply to specific monthly statements on an individual statement basis. Any payments made on past due statements are applied first to the oldest outstanding statement. It is the firm's policy that if an invoice remains unpaid for more than 90 days, absent extraordinary circumstances and subject to legal ethics constraints,H&K's representation will cease,and you hereby authorize us to withdraw from all representation of you. Any unapplied deposits will be applied to outstanding balances. Generally,the firm will not recommence its representation or accept new work from you until your account is brought current and a new deposit for fees and costs,in an amount that the firm determines,is paid to it. In addition,if you do not pay H&K's statements as they become due,the firm may require a substantial partial payment and delivery of an interest-bearing promissory note as part of any arrangement under which it may,in 1 its discretion,agree to continue its representation. Any such promissory note will serve merely as evidence of your obligation,and shall not be regarded as payment. If allowed by applicable law, H&K is entitled to reasonable attorneys'fees and court costs if collection activities are necessary. In addition, H&K shall have all general,possessory,or retaining Iiens,and all special or charging liens,recognized by law. Payment of our fees and costs is not contingent on the ultimate outcome of our representation,unless we have expressly agreed in writing to a contingent fee. Questions About Our Bills. We invite you to discuss freely with us any questions that you have concerning a fee charged for any matter. We want our clients to be satisfied with both the quality of our services and the reasonableness of the fees that we charge for those services. We will attempt to provide as much billing information as you require and in such customary form that you desire, and are willing to discuss with you any of the various billing formats we have available that best suits your needs. Relationships with Other Clients • Because we are a large,full-service law firm with offices located in various cities we may be(and often are)asked to represent a client with respect to interests that are adverse to those of another client who is represented by the firm in connection with another matter. Just as you would not wish to be prevented in an appropriate • situation from retaining a law firm that competes with Holland & Knight LLP, our firm wishes to be able to consider the representation of other persons or entities that may be competitors in your industry or who may have interests that are adverse to yours, but with respect to matters that are unrelated in any way to our representation of you. The ethics that govern us permit us to accept such multiple representations, assuming certain conditions are met,as set forth below. { I 1 • During the term of this engagement,we will not accept representation of another client to pursue interests that are directly adverse to your interests unless and until we make full disclosure to you of all the relevant facts, circumstances, and implications of our undertaking the two representations, and confirm to you in good faith that we have done so and that the following criteria are met: (i)there is no substantial relationship between any matter in which we are representing or have represented you and the matter for the other client; (ii) any confidential information that we have received from you will not be available to the lawyers and other Holland& Knight LLP personnel involved in the representation of the other client; (iii)our effective representation of you and the discharge of our professional responsibilities to you will not be prejudiced by our representation of the other client; and (iv) the other client has also consented in writing based on our full disclosure of the relevant facts, circumstances,and implications of our undertaking the two representations. If the foregoing conditions are satisfied,we may undertake the adverse representation and all conflict issues will be deemed to have been resolved or waived by you. By making this agreement, we are establishing the criteria that will govern the exercise of your right under applicable ethical rules to object to our representation of another client whose interests are adverse to yours. If you contest in good faith the facts underlying our confirmation to you that the specified criteria have been met, then we will have the burden of reasonably supporting those facts. Knowledge Management Tool In order to better and more economically serve our clients,we have implemented a document search engine that will allow us to search the firm's institutional work product to determine whether there exist documents created for one client that can be used as a starting point for the preparation of new documents for other clients. Documents that are subject to ethics wall restrictions, have extraordinary confidentiality requirements, or contain sensitive client information will not be included in this system. Termination Upon completion of the matter to which this representation applies, or upon earlier termination of our relationship,the attorney-client relationship will end unless you and we have expressly agreed to a continuation with respect to other matters. We hope,of course,that such a continuation will be the case. The representation is terminable at will by either of us. The termination of the representation will not terminate your obligation to pay fees and expenses incurred prior to the termination and for any services rendered or disbursements required to implement the transition to new counsel. i i R i i Your agreement to this engagement constitutes your acceptance of the foregoing terms and conditions. If any of them is unacceptable to you, please advise us now so that we can resolve any differences and proceed with a clear,complete,and consistent understanding of our relationship. #35847034 vl • Page 1 of 3 Holland & Knight Rodolfo Sorondo Jr. r �` Partner =' ;" f: Miami ..,. ,,,- • �. . T 305.789.7596 _ , rodolfo.sorondo @hklaw.corn Related Practices: Appellate I Litigation and Dispute Resolution I Latin America Practice Rodolfo Sorondo Jr., leader of Holland & Knight's Appellate Practice Group in the Miami office, is a partner in the firm. He focuses his practice primarily on state and federal appeals and trial support, specializing in all types of litigation. He also serves as a mediator, special master and arbitrator in state and federal courts. Mr. Sorondo began his career as a trial lawyer and tried numerous jury and bench trials until his appointment to Florida's Judiciary. In 1992, he was appointed by then Governor Lawton Chiles to the Circuit Court of Florida's Eleventh Judicial Circuit in Miami-Dade County. He served that court with distinction through January of 1997, at which time he was elevated by Governor Chiles to Florida's Third District Court of Appeal, where he again served with distinction through 2002. He joined Holland & Knight on October 1, 2002. In addition to his judicial duties during his tenure on the bench, Mr. Sorondo dedicated a considerable amount of time to teaching. He has served as an adjunct professor at the University of Miami's College of Law teaching litigation skills from 1995 to the present. He has also served as a faculty member for the College of Advanced Judicial Studies, and the Conferences of Circuit and County Judges where he has lectured on issues related to jury selection, dismissals for fraud on the court, Florida Evidence Code Sections 404(2)(a) [the Williams Rule], and 90.803(23) [child hearsay]. Finally, he has served as an instructor at the National College of District Attorneys in Columbia, South Carolina on the subject of appellate advocacy, and at the National Institute of Trial Advocacy in Boulder, Colorado. Since his return to private practice, Mr. Sorondo has been invited back to teach at the Conference of Circuit Judges and has also lectured to the Dade County Defense Bar Association, the Miami-Dade County State Attorney's Office and to private law firms. Experience ® Insurance Litigation: during our defense of a large insurer in a Florida matter having to do with a common law first party bad faith cause of action, the 11th Circuit certified five questions to the Florida http://www.hklaw.com/professionals/uniEntity.aspx?xpST=ProfessionalDetailPrintAll&pro... 7/6/2015 Page 2 of 3 Supreme Court (FSC), saying the state's law in this area was not clearly established; the FSC's answers were not only highly favorable to our client—overturning a $7.2 million jury award against the company — but beneficial to the insurance industry as a whole; our client also prevailed in the 11th Circuit, which reversed the jury verdict and award and remanded for a new trial Honors &Awards o The Best Lawyers in America guide, Bet-the-Company Litigation, 2011-2015; Commercial Litigation, 2008-2015; Appellate Practice, 2005-2015 o Top Lawyer, South Florida Legal Guide, 2006-2015 o Chambers USA –America's Leading Business Lawyers guide, Litigation: Appellate, 2004-2015 o The Best Lawyers in America guide, Miami Appellate Practice Lawyer of the Year, 2014 o Florida Super Lawyers magazine, 2006-2015 o Most Effective Lawyer Winner, Appellate, Daily Business Review, 2012 o Florida Legal Elite, Florida Trend magazine, 2012 ° Corporate Counsel Edition, Super Lawyers magazine, November 2009 o The Best Lawyers in America guide, White-Collar Criminal Defense, 2007, 2008 o Justice Gerald Kogan Judicial Distinction Award, 1998 o Justice Award, 2004 Publications o Florida Supreme Court Limits Application of the Economic Loss Rule to Product Liability Cases, Holland& Knight Alert, March 7, 2013 Memberships o Dade County Bar Association o Dade County Defense Bar Association o Florida Bar o Cuban American Bar Association Education o University of Miami, B.A. o University of Illinois College of Law, J.D. Bar Admissions o Florida Court Admissions o U.S. Supreme Court o U.S. Court of Appeals for the Eleventh Circuit o U.S. Court of Appeals for the Fifth Circuit o U.S. District Court for the Southern District of Florida http://www.hklaw.com/professionals/uniEntity.aspx?xpST=ProfessionalDetai lPrintAll&pro... 7/6/2015 Page 3 of 3 Spoken Languages o English o Spanish Attorney Advertising. Copyright©1996-2015 Holland& Knight LLP.All rights reserved. • http://www.hklaw.com/professionals/uniEntity.aspx?xpST=ProfessionalDetailPrintAll&pro... 7/6/2015 Page 1 of 2 Holland & Knight 1 Christopher "Chris" Bellows At: Partner l '! J _�.� f�,., j'° - Li Miami T 305.789.7735 christopher.bellows @hklaw.com ) Related Practices: Appellate I Litigation and Dispute Resolution Christopher N. Bellows is an appellate attorney who has handled complex civil appeals in the Supreme Court of Florida, all Florida District Courts of Appeal and the federal appellate courts. Mr. Bellows also has significant experience in complex commercial litigation, including areas of contract law, Uniform Commercial Code, business torts, foreclosures, receiverships, replevins, construction disputes, landlord-tenant litigation, product liability, personal injury, first amendment, employment discrimination, housing discrimination, environmental law, professional malpractice, antitrust, securities fraud and shareholder disputes. Honors &Awards ® The Best Lawyers in America guide, Appellate Practice, 2010-2015 • Florida Super Lawyers magazine, 2011-2015 ® Paul B. Anton Scholar, University of Miami ® Martindale-Hubbell AV Preeminent Peer Review Rated • University of Miami Law Review ® Order of the Coif Speaking Engagements • Appellate Skills and Strategies Boot Camp: Navigating State and Federal Appeals, Pincus Professional Education Seminar, June 12, 2014 Memberships ® Right Trak program, Member and Founder ® Dade County Bar Association http://www.hklaw.com/professionals/uniEntity.aspx?xpST=ProfessionalDetailPrintAll&pro... 7/6/2015 Page 2 of 2 o Dade County Defense Bar Association o Miami Country Day School, President of the Board of Trustees Education ° Sewanee The University of the South, B.A., Political Science, with honors o University of Miami School of Law, J.D., magna cum laude Bar Admissions o Florida Court Admissions o U.S. District Court for the Southern District of Florida o U.S. District Court for the Middle District of Florida o U.S. District Court for the Northern District of Florida o Florida Supreme Court o U.S. Court of Appeals for the First Circuit o U.S. Court of Appeals for the Fifth Circuit o U.S. Court of Appeals for the Eleventh Circuit o U.S. Supreme Court Attorney Advertising. Copyright©1996-2015 Holland& Knight LLP. All rights reserved. htt ://www.hklaw.com/ rofessionals/uniEnti .as x?x ST=ProfessionalDetailPrintAll& ro... 7/6/2015 P P tY P P P SHUTTS BOWEN LLP .Pounded 1910 SIDNEY C.CALLOWAY E-MAIL ADDRESS: PARTNER scallowny@shutts.com (954)847-3833 Direct Telephone (954)888-3063 Direct Facsimile June 10, 2015 VIA ELECTRONIC MAIL hottinot@sibfl.net Hans Ottinot, Esq.,City Attorney City of Sunny Isles Beach 18070 Collins Avenue Sunny Isles Beach, FL 33160 Re: City of Sunny Isles Beach v. Cavalry Corp. Case No. 12-26693 CA 09 Client-Matter No.27169.0006 Dear Hans./yh J7 Kindly allow this correspondence to serve as a preliminary review of the most recent jury trial in the above styled case, as well as my recommendation that the matter be evaluated by appellate counsel concerning the viability of an appeal to the 31d District Court of Appeals. The chief issue, which I believe to be significant, is whether the court erroneously admitted, over the City's objection, evidence of the subject property's highest and best use (ultimately market valuation), which hinged on the speculative opinions of Respondent's expert witnesses. These witnesses testified that the property could be developed as a private docking facility containing 46 boat slips which could then be sold to condominium unit owners. Such evidence included testimony and physical exhibits prepared by Stephen Carney and Thomas Checca concerning the probability of gaining necessary permits from a host of governmental agencies, as well as the required environmental mitigation at some unknown off-site location and in accordance with additional speculative agreements with unknown third party(ies). However, the most flagrant speculative evidence that the court • allowed to reach the jury was a speculative site plan depicting 46 boat slips exhibits 200 East Broward Boulevard,Suite 2100, Fort Lauderdale.Florida 33301 • p.)954.524.5505• l\954.524.5506•www.shutts.com .IIAM1 1•li01 Lu. ui:oiA1.1: \lEES'I ! Ai.∎l RI.\[_•I; ()ltl.1,N.t)ci 1\+I;'\ IA, i 11},s,,S k i:: •..\ua:(.)T•V Hans Qttinot, Esq., City Attorney June 10, 2015 Page 2 • combined with the testimony of Checca and Respondent's appraiser, Harry Newstreet which asserted that the 46 boat slips could be sold to the Winston Towers Condominium Association unit owners. You will recall, other than the pure and unsubstantiated opinion testimony from these witnesses, there was simply no other factual evidence (testimony or documentary) to support this naked assertion. Newstreet then concluded that not only was the value of the subject property based on the subject property's highest and best use as a private docking facility, but also the compensation due to the Respondent for the taking of Parcel A was $60,000 and severance damages was $795,000. It is my opinion that the court erred in allowing this speculative evidence to reach the jury, and further that the verdict in this case is tainted by such evidence. I reiterate my recommendation this case be reviewed by appellate counsel on these issues. Notwithstanding the tainted jury verdict, I believe it especially important to underscore the extreme legal and economic success that the City achieved in this 3-year old condemnation case. You will recall that very soon after the Order of Taking, which transferred title and interest in Parcel A to the City, the Respondent and his counsel presented the City with two separate quitclaim deeds claim ownership of two upland parcels, a.k.a. 0206 and 0208. (Upland Parcels) which were adjacent and abutting the subject submerged land parcel. From that point through January 2015, Respondent claimed that these upland parcels, along with his submerged land parcel, constituted the parent tract, for purposes of determining the amount of compensation owed to him by the City. Respondent's counsel retained a team of two engineers, a land planner, and a real estate appraiser all of whom prepared reports detailing their professional opinions that the subject property (as of December 17, 2012) could have been filled and developed with 144 condominium or apartment units. Those same experts opined that the market value of the subject property and compensation owed for the taking of Parcel A was $5,880,000. According to Newstreet, Respondent was owed $516,000 for the taking of Parcel A (7,896 square feet), and $5.36 million for severance damages. Alternatively, Respondent's experts claimed that the parent tract could have also been developed as a marina,which produced an established value of$2.8 million. Respondent's expert witnesses also claimed that after the taking of Parcel A, Respondent's remainder property could only be valued on the basis of 236,000 square feet of Transferable Development Rights (135 dwelling units), which in essence equated to an after value for the remainder property of$2.4 million. For the three-year period beginning shortly after the Order of Taking through January 2015, the City exerted an extraordinary legal challenge to Respondent's valuation claims, including but not limited to the following: 1. Respondents parent tract claim, based on the unity of title and unity of use; 2. Motion to Strike Fraudulent Ownership Evidence, as to Respondent's claimed ownership of each of the Upland Parcels; 3. Motion in Limine as to Respondent's before valuation of the subject property, based • Hans Ottinot, Esq., City Attorney June 10, 2015 Page 3 on improper and speculative opinion evidence; and 4. Motion in Limine and Request for Daubert Hearing as to Respondent's after valuation methodology. In January, 2015 following the deposition of the City's expert witness on the record ownership of the Upland Parcels, Respondent's counsel withdrew and conceded to the City's position that Respondent did not own Parcel 0208. Respondent further agreed that • such parcel would not be considered by its witnesses for purposes of establishing value or compensation in the pending jury trial scheduled for June 1, 2015. Then, in the two weeks leading up to the jury trial, Respondent suddenly conceded not only his ownership claim to the other upland parcel ( Parcel 0206), but also that he did not intend to present evidence to the jury that (a) the parent tract was anything other than the submerged land parcel and (b) valuation of the submerged land parcel was based on a highest and best use conclusion for development with 144 condominium units and (c) any opinion evidence concerning the subject property's valuation, after the take, on the basis of its Transferable Development Rights. It was only on June 1, 2015, the first day of trial, that Respondent announced its total compensation claim for the taking of Parcel A was limited to$855,000. The City's successful legal challenges to Respondent's claims, as outlined above, yielded a reduction in the economic risks to the City at trial by 85 percent, that is, from $5.8 million to $885,000. The jury selection in this case reflected both the complexity and substantial risks that condemning authorities accept in litigating these types of case before a jury, primarily because of the public's visceral reaction to governmental takings of private property. You will recall that I expended over three hours in jury selection, primarily engaged in securing legal cause challenges (as opposed to peremptory challenges) to the first jury panel of 25 members. The court was required to excuse 15 of the 25 panel members solely due to a legal cause challenge, which I successfully set up during the selection process. This, again, was not easy but was crucial to mitigating the risks associated with having members on the jury who concurred with the jury pool's general sentiment that government should pay more than the fair market value for taking private property. Despite the elimination of 15 of those members and engaging in a second jury selection process, the jury panel ultimately selected still contained folks who were had expressed the same anti-government sentiment. Because both parties were limited to 3 peremptory challenges this simply could not be avoided. You will also recall we lost two panel members during the jury trial who we believed favored the City's position. They were replaced by alternate jurors. The first alternate had earlier expressed her concern that people's who property had been taken by the government for building roads should be adequately compensated. The second alternate was a lawyer who ultimately was the juror foreperson. The jury in this case, like most, wanted to give the property owner money for the taking of Hans Ottinot,Esq., City Attorney June 10, 2015 Page 4 Parcel A. I believe its ultimate verdict reflected that sentiment, but was also tainted by the Court's admission of improper, speculative opinion evidence. On the foregoing basis, I am also preparing a motion for new trial for your consideration. Sincerely, Shutts&Bo en, idney C. Calloway • Filing # 28733182 E-Filed 06/19/2015 05:03:36 PM • IN THE CIRCUIT COURT OF THE 11"i JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA SUNNY ISLES BEACH,a political subdivision of the State of Florida, CASE NO.: 12-26693 CA09 Petitioner, PARCEL A ° vs. U ' CALVARY CORP,a dissolved Florida corporation; R.TUCKER,TRUSTEE;J. TUCKER,TRUSTEE;and MIAMI-DADE COUNTY, m ?' Respondents. U 2 NOTICE OF APPEAL NOTICE IS GIVEN that Petitioner/Appellant, Sunny Isles Beach, appeals to the District Court of Appeal of the State of Florida, Third District, the Final Judgment of this Court rendered on June 12, 2015. The nature of the order appealed is a final judgment entered in favor of Respondent, K. Tucker, Trustee. A conformed copy of the Final Judgment is attached as Exhibit A.t w Respectfully submitted, SHUTTS &BOWEN LLP STATE OF FLORIDA,COUNTY OF MIAMI-DADE ,,a'°c"+r,; torneys for Petitioner I HEREBY CERTIFY that the loregoin Is a tare rdiorrsct copy of the "�d East Broward Boulevard,2100 - C -5 rD2°--(�- •°1 FL 33301 original on file in this office , s v Lauderdale, lWWEY RUVIN,Clerk of Ci . and aunty Courts • ephone: (954) 524-5505 eeatrty Clerk __ vol` ' acsimile: (954) 888-3063 Petitioner has also filed a Motion for New Trial. Therefore,pursuant to Rule 9.020(i)(3),the appeal shall be held in abeyance until the filing of a signed,written order disposing of that motion. 1 By: /s/Sidney C. Calloway Sidney C. Calloway Florida Bar No.: 790982 scalloway@shutts.com CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this June 19, 2015, a true and correct copy of the foregoing has been served via electronic mail to Hans Ottinot, Esq., City Attorney, City of Sunny Isles Beach, 18070 Collins Avenue, Sunny Isles Beach, FL 33160 (hottinot @sibfl.net; legaldept<csibfl.net); Debra Herman, Jason Bloch, Miami Dade County Attorney, Attorney for Miami-Dade County Tax Collector, Stephen P. Clark Center, 111 Northwest 1st Street, Suite 2810, Miami, FL, 33128 (DHerman @miamidade.gov) (jbloch @miamidade.gov) (olgal(rmiainidade.gov); J. Wiley Hicks, Esq., The Law Office of Wiley Hicks, 5730 S.W. 74th Street, Suite 400, Miami, FL 33143 (wilcy @,wileyhicks.com), Attorney for K. Tucker, Trustee; Calvary Corp., c/o Jeffrey Tucker, as sole surviving director, P.O. Box 144366, Coral Gables, FL 33114; and R. Tucker, Trustee, P.O. Box 144366, Coral Gables, FL 33114, The Law Offices of Avraham A. Spivak P.A., 1001 North Miami Beach Boulevard, North Miami Beach, FL 33162 (abespivak@gmail.com.); and Michael Schwager, BECKER & POLIAKOFF, P.A., Attorneys for Intervenor, 121 Alhambra Plaza, 10th Floor, Coral Gables, FL 33134, (mmandler@bplegal.com, m.schwager@bplegal.com, cpons(aJbplcgal_com.) /s/Sidnev C. Calloway Sidney C. Calloway 2 EXHIBI T i°A " IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT IN AND FOR MIAMI- DADE COUNTY,FLORIDA SUNNY ISLES BEACH, a political Civil Action No: 12-26693 CA 09 subdivision of the State of Florida, Parcel A Petitioner, vs. CALVARY CORP, a dissolved Florida Corporation, et al., Respondents. FINAL JUDGMENT THIS ACTION was tried as to Parcel A,and the jury was empaneled and sworn to try the issue of full compensation to be paid to the Respondents for Parcel A, and the jury heard the evidence and the charges of the Court and retired to consider their verdict on June 5,2015,and returned the verdict attached hereto as Exhibit A. It is further ORDERED AND ADJUDGED that: 1. Defendants shall have and recover from Petitioner,the CITY OF SUNNY ISLES BEACH,the sum of EIGHT HUNDRED AND FIFTY FIVE THOUSAND DOLLARS ($855,000.00), as full compensation for the taking of Parcel A, including but not limited to claims for the value of Parcel A and any severance damages for Respondent's remaining property. This sum excludes statutory interest,attorney's fees,expert fees and all other taxable costs. The full compensation awarded herein is subject to apportionment. 2. Respondent,K. TUCKER,TRUSTEE,shall have and recover from Petitioner the sum of TWO HUNDRED TWENTY TWO THOUSAND FIVE HUNDRED DOLLARS ($222,500.00)in attorney's fees pursuant to Fla. Stat. § 73.092(1)for payment to J.WILEY HICKS, LLC IOTA TRUST ACCOUNT for the benefit of J. Wiley Hicks,LLC,and Robert A. Schreiber,Esq., LLC. Within 20 days of the date of entry of this Final Judgment, Petitioner is directed to deliver said attorney's fees to J.WILEY HICKS, LLC IOTA TRUST ACCOUNT, at 5730 SW 74th Street,Suite 400, Miami,FL 33143. 3. Within 20 days of the date of entry of this Final Judgment,Petitioner, the CITY OF SUNNY ISLES BEACH, having previously deposited the sum of ONE THOUSAND DOLLARS ($1,000.00)pursuant to the Order of Taking previously entered in this case, is hereby ordered and directed to pay the sum of EIGHT HUNDRED AND FIFTY FOUR THOUSAND DOLLARS ($854,000.00),plus statutory interest from December 17, 2012,to the date a payment, to J. WILEY HICKS, LLC IOTA TRUST ACCOUNT,at 5730 SW 74th Street, Suite 400,Miami,FL 33143,within twenty(20)days of the entry of this Final Judgment. The amount of statutory interest owed as of June 15,2015, is the sum of ONE HUNDRED ONE THOUSAND ONE HUNDRED THIRTY FIVE DOLLARS AND TWENTY CENTS ($101,135.20). If the payment is made after June 15, 2015,per diem interest of$111.14 shall be added for each day after June 15, 2015. Said sum shall be deposited by J.Wiley Hicks, LLC,into an interest bearing sub account of its IOTA Trust Account. These funds shall remain in the interest bearing sub account until further order of this Court apportioning the proceeds among any Respondents making a claim pursuant to Florida Law. • 4. That title to Parcel A which vested in the Petitioner pursuant to the Order of Taking of December 12, 2012, and the deposit of money heretofore made on December 17,2012,is hereby approved,ratified, and confirmed. Parcel A is described on Exhibit B attached hereto. 5. This Court retains jurisdiction to determine taxable costs and expert fees,as well as attorneys' fees, if any, due pursuant to Florida Statute §73.092(2),and to enforce the terms of this final judgment. DONE AND ORDERED in Chambers at Miami-Dade County, Florida, on 06/12/15. PteaQ RALD BAGLEY mi. dip 'RCUIT COURT JUDGE FINAL ORDERS AS TO ALL PARTIES SRS DISPOSITION NUMBER 12 THE COURT DISMISSES THIS CASE AGAINST ANY PARTY NOT LISTED IN THIS FINAL ORDER OR PREVIOUS ORDER(S).THIS CASE IS CLOSED AS TO ALL PARTIES. Judge's Initials JB The parties served with this Order are indicated in the accompanying 11th Circuit email confirmation which includes all emails provided by the submitter, The movant shall IMMEDIATELY serve a true and correct copy of this Order, by mail, facsimile, email or hand-delivery, to all parties/counsel of record for whom service is not indicated by the accompanying 11th Circuit confirmation, and file proof of service with the Clerk of Court. Signed original order sent electronically to the Clerk of Courts for filing in the Court file. HONORABLE JERALD BAGLEY CIRCUIT COURT JUDGE Copies furnished to all parties Filing # 28733182 E-Filed 06/19/2015 05:03:36 PM IN THE CIRCUIT COURT OF THE 11'H JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA SUNNY ISLES BEACH, a political subdivision of the State of Florida, CASE NO.: 12-26693 CA09 Petitioner, PARCEL A vs. CALVARY CORP, a dissolved Florida corporation; R. TUCKER, TRUSTEE; J. TUCKER, TRUSTEE; and MIAMI-DADE COUNTY, Respondents. PETITIONER'S MOTION FOR NEW TRIAL OR, IN THE ALTERNATIVE,REMITTITUR Petitioner, SUNNY ISLES BEACH, by and through undersigned counsel, and pursuant to Florida Rule of Civil Procedure 1.530(a), hereby moves for a new trial or in the alternative, for remittitur, and in support thereof, states as follows: BACKGROUND 1. After a five-day jury trial in this condemnation action, a verdict was returned against Petitioner, Sunny Isles Beach ("City") in favor of Respondent, Karen Tucker, Trustee, in the total amount of $855,000. This verdict amount triggered an award of attorney's fees of $222,500.00 2. During trial, Respondent's expert witnesses were allowed to testify that the value of the condemned underwater property was $60,000, and that severance damages to Respondent's remainder of the underwater property, incurred as a result of Petitioner's taking, was $795,000. To support this opinion, Respondent's expert engineers, planner and real estate 1 appraiser were permitted to provide opinion evidence which speculated that the highest and best use of Respondent's underwater property was for development as a private docking facility without any accessible upland containing 46 boat slips. The witnesses further speculated that each of the 46 boat slips could, in turn, be sold to anyone of an unverified 1,200 unit owners of the seven Winston Tower Condominium Association buildings located near the Respondent's property. The evidence presented to the jury included numerous assumptions about Respondent's ability to improve the underwater property (the "Parent tract") from which the 7,896 square feet was acquired by the City, including conjecture concerning: (a) The probability of obtaining necessary permits and required approvals from a host of governmental agencies; (b) Respondent's ability to successfully locate and execute the required environmental impact mitigation at some unknown off-site location; (c) Respondent's control and access to upland property for purposes of developing a private docking facility which requires physical connection to the adjacent upland condominium property to satisfy zoning requirements; and further, (d) Testimony that the 46 boat slips could have actually been sold to condominium unit owners residing in the adjacent Winston Tower Condominiums, i.e., that there was a market-driven demand to purchase boat slips. In addition to the opinion testimony of Respondent's expert witnesses, the court also allowed Respondent to publish to the jury as a demonstrative exhibit a conceptual site plan showing the 46 boat slips over-layed onto Respondent's property. This speculative evidence was admitted over Petitioner's objection. 3. The speculative evidence was admitted despite the fact that, on the morning of trial, the Court ruled that it would not allow speculative testimony regarding third-party agreements that had not yet been entered into by Respondent. Trial T. 12 (court stating, "[i]f [Respondent] didn't get 'em, it ain't coming in," in response to Petitioner's argument that Respondent's counsel "intends to offer at a minimum evidence about what third party agreements his client, his owner, could have gotten, should have gotten, may have gotten with some third party"); Trial T. 15 (in response to Petitioner's argument that "agreements [Respondent] could have gotten, covenants with one condominium association versus another that they could have gotten is entirely speculative," court stated, "Didn't I just say I'm not allowed something like that in?"); Trial T. 15 ("I know conjecture and speculation when I see it. I'm not going to allow it."). 4. In addition, on May 29, 2015, just three days before trial, former Respondent Jeffrey Tucker, Trustee ("Mr. Tucker"), through his counsel, without a timely motion or notice to the City, filed a Notice of Substitution of Party purportedly under Florida Rule of Civil Procedure 1.260(c) wherein he substituted Karen Tucker ("Ms. Tucker") as the Respondent. In the Notice, Mr. Tucker stated that he had transferred his interest, as trustee, to a successor trustee, Ms. Tucker. Over the City's objection, the trial court permitted the eleventh-hour surprise substitution of Tucker as Respondent on the first day of trial. This late substitution was nothing more than an attempt to confuse the jury; indeed, Mr. Tucker was the owner of the underwater property on the date of valuation, i.e. December 17, 2012. 5. The jury ultimately awarded the full amount of the compensation sought: $60,000 by Respondent for the value of the property taken by the City, and $795,000 in severance damages. 6. For the reasons set forth below, Petitioner requests that either a new trial be granted or that Petitioner's request for remittitur be granted. 3 LEGAL ARGUMENT I. This Court should grant a new trial because speculative testimony was erroneously admitted. Florida Rule of Civil Procedure 1.530 allows the trial court to grant a new trial on all or part of the issues. Fla. R. Civ. P. 1.530(a). A trial judge is authorized to Grant a new trial "when he or she becomes aware of a specific or substantial prejudicial error." Krolick v. Monroe ex rel. Monroe, 909 So. 2d 910, 914 (Fla. 2d DCA 2005). This includes circumstances in which prejudicial evidence is erroneously admitted and contaminates the trial. See, e.g., Marson v. Dadeland Rent-A-Car, Inc., 408 So. 2d 245, 247 (Fla. 3d DCA 1981) (granting new trial where "[t]he inadmissible testimony . . . , taken as a whole, has so contaminated this trial to the extent that we cannot permit this jury verdict to stand"); Benton v. CSX Transp., Inc., 898 So. 2d 243 (Fla. 4th DCA 2005) (holding that trial court's erroneous admission of certain evidence, in combination with trial court's incorrect decision to exclude railroad employee's expert when railroad's expert opined on same issues, "may very well have caused jury to render the defense verdict for the railroad," and as such, employee was entitled to new trial). Here, the trial court's admission of speculative testimony, in combination with its decision to allow the last-minute substitution of Ms. Tucker as Respondent on the morning of trial even though Respondent did not follow the proper procedure for obtaining such substitution, contaminated the trial to the extent a new trial is warranted. II. The trial court erroneously admitted speculative evidence regarding the subject property's highest and best use. A. Speculative evidence regarding a property's highest and best use is inadmissible. The ultimate objective of condemnation proceedings is the determination of just compensation for the property owner. State Road Dep't v. Chicone, 158 So. 2d 753, 757 (Fla. 4 • 1963). To that end, Florida courts have consistently ruled that the amount of compensation to be awarded to a property owner when his property is sought to be taken in an eminent domain proceeding is the value of the land taken at the time of the lawful appropriation. See, e.g., Yoder v. Sarasota Cnty., 81 So. 2d 219, 220-21 (Fla. 1955). It is appropriate to show the uses to which the property was or might reasonably be applied, and the damages, if any, to adjacent lands. Id. at 221. However, the value must be established in light of these elements as of the time of the lawful appropriation. Id. Indeed, it is not proper to speculate on what could be done to the land or what might be done to it to make it more valuable and then solicit evidence on what it might be worth with such speculative improvements at some unannounced future date. Id. "To permit such evidence would open a flood-gate of speculation and conjecture that would convert an eminent domain proceeding into a guessing contest." Id. (holding evidence as to what the land would be worth if properly filled for a particular use stated to be the most profitable use for which the land was adaptable was inadmissible); accord City Nat'l Bank of Fla. v. Dade Cnty., 715 So. 2d 350, 352- 53 (Fla. 3d DCA 1998) (holding trial court properly granted motion in limine excluding owner's conceptual site plan when owner never submitted the site plan to the county for approval); Fla. Dep't of Transp. v. Target Corp., 937 So. 2d 703, 706 (Fla. 4th DCA 2006) (holding trial court erred in denying petitioner's motion in limine to exclude respondent's site plan when respondent had not included the disputed site plan in its original submittal to the city or taken any affirmative steps toward fulfilling the plan); Jacksonville Transp. Auth. v. ACS Assocs., 559 So. 2d 330, 334 (Fla. 1st DCA 1990) (warning parties to avoid introduction of speculative evidence regarding future use of property, including conceptual plans, improvements, or developments which might be made at some unannounced future date, during retrial upon remand). 5 B. Respondent's witnesses presented speculative evidence regarding Respondent's ability to obtain various permits from a host of governmental entities. At trial, Thomas Checca was permitted to testify that it was reasonably probable that Respondent could obtain the requisite permits to develop it as a private docking facility. Trial T. 675-76. On cross-examination, Mr. Checca conceded that in order to develop the property for such use, Respondent would be required to obtain permits from a host of governmental entities, including the Miami-Dade County Department of Environmental Resource Management ("DERM"), the U.S. Army Corps of Engineers, and the City of Sunny Isles Beach. Trial T. 680, 696. This testimony was allowed despite the fact that Respondent had taken no affirmative steps to apply for any such permits. Trial T. 606. Stephen Carney was also permitted to testify that it was reasonably probable that the requisite environmental permits would be issued, which would enable Respondent to develop the property as a docking facility. Trial T. 589-90. On cross-examination, Mr. Carney conceded that DERM would not have necessarily accepted the Uniform Mitigation Assessment score that Mr. Carney assigned to the property, which he relied upon in determining. the permit would be issued by DERM. Trial T. 601-02. And although Mr. Carney testified that he had spoken with a DERM employee regarding the possibility of obtaining the necessary permits, Trial T. 598, he acknowledged on cross-examination that the State of Florida's Department of Environmental Protection and the U.S. Army Corps of Engineers would also have jurisdiction over any permit applications. Trial T. 604-05.1 No such permit applications had been submitted. Trial T. 606. In addition, Mr. Rahenkamp was allowed to testify that the property could likely be re-zoned to recreation and open space, and that docks would be permitted under that desienation. Trial T. 638, 640. On cross-examination, however, he acknowledged that Respondent would have to submit an application to the City of Sunny Isles Beach to re-zone the property to such desienation. Trial T. 642. Mr. Rahenkamp also admitted that Respondent had not submitted any permit applications to Miami-Dade County or the City. Trial T. 653. 6 Because Mr. Checca's and Mr. Carney's testimony regarding the probability of obtaining the permits necessary for development of the property was based on pure speculation, it should have been excluded. Cf. Yoder, 81 So. 2d at 221 (holding it is improper to speculate on what could be done to the land or what might be done to it to make it more valuable and then solicit evidence on what it might be worth with such speculative improvements at some unannounced future date); City Nat'l Bank, 715 So. 2d at 352 (concluding that trial court properly excluded conceptual site plan from evidence where it was "speculative whether the County ever would have agreed to it in its proposed form"). This erroneously admitted opinion testimony was crucial for the jury to conclude that the property could have been developed into a private docking facility and to therefore award Respondent $795,000 in severance damages. As such, Petitioner should be granted a new trial. C. Respondent's witnesses presented speculative testimony regarding Respondent's ability to successfully undergo required environmental impact mitigation at some unknown off-site location. During Respondent's case-in-chief, Mr. Checca acknowledged that in order to develop the subject property, Respondent would have to undergo environmental impact mitigation either at an off-site or on-site location, or make a monetary donation to the Biscayne Bay Enhancement Program. Trial T. 696. For off-site mitigation to be possible, Respondent would have to enter into an agreement with a third-party owner of off-site property. Trial T. 696. Yet Respondent presented no testimony that any such agreements had ever been considered by Respondent, much less that they had negotiated or entered into any such agreements, or obtained the approval of the governmental agency responsible for approving mitigation agreements. Similarly, Mr. Carney testified that he assumed that Respondent would be able to either secure off-site environmental mitigation at Oleta River State Park or engage in mitigation 7 ii involving "the retrofitting of some of the storm water discharges . . . coming. into the canal." Trial T. 593-94. On cross-examination, however, Mr. Carney admitted that he was unaware whether Respondent had any discussions with the owner of Oleta River State Park regarding the ability to engage in offsite mitigation there, Trial T. 612, and that he had not spoken with the City of Sunny Isles Beach regarding the viability of a mitigation plan that included a retrofitting of stormwater-draining infrastructure within the City. Trial T. 614. Again, Respondent's witnesses' assumptions, provided exclusively in the form of pure opinion evidence, that Respondent would have been able to secure a location for off-site environmental mitigation amounted to improper speculation, which has been expressly forbidden • by the Florida Supreme Court in Yoder. See Yoder, 81 So. 2d at 221 ("To permit such evidence [on what could be done to the land or what might be done to it to make it more valuable] would open a flood-gate of speculation and conjecture that would convert an eminent domain proceeding into a guessing contest."). This speculative evidence contaminated the trial in that it enabled the jury to conclude the award property could have been developed into a private docking facility. As such, a new trial should be granted. D. Respondent's witnesses presented speculative testimony regarding Respondent's access to upland property. As of the date of trial, the parties had agreed that the Parent Tract included only submerged lands and not any upland property. See 5/22/15 Hr'g Tr. 5:20-6:11. It was also undisputed that any development of the submerged lands into a private docking facility would require the use of some upland property. Trial T. 688-89 (testimony from Mr. Checca that permit application to DERM would have to identify some upland property). At trial, Mr. Checca testified that it was feasible to develop the property as a private docking facility because there were uplands adjacent to it. Trial T. 676-77. On cross- 8 examination, however, Mr. Checca revealed his mistaken belief that the submerged land that is the subject of this lawsuit actually includes upland property. Trial T. 687. Specifically, he testified: Q. The upland development or the 20 slips that were permitted included some upland property that was on the site plan for the Class I permit submitted to DERM, was it not? A. All projects have to have an attachment to upland. Q. Have to have upland? A. They have to border on upland. Q. And your assumption is this submerged land that is the subject of this lawsuit has upland? A. That's correct. Trial T. 687 (emphasis added). Mr. Newstreet's conclusions were also based on that mistaken assumption. During his direct examination, Mr. Newstreet testified that he did not attempt to determine whether the property has uplands, and that he instead relied on Mr. Checca for that determination. Trial T. 721. During his cross-examination, Mr. Newstreet revealed his incorrect belief that the parent tract included upland property, and again admitted that his understanding of this issue was based solely on what he learned from Mr. Checca: Q. And based on what you know today . . . the property that is the subject of this lawsuit is this submerged— this underwater land, right? A. Yes, sir. Q. You don't know if this property has any uplands, do you? A. I mean, as far as I know, it has sufficient uplands to receive permits. Q. As far as you know? 9 A. Well, I've been—with my conversations with Mr. — Q. Checca? A. -- Checca. Trial T. 751-52. Thus, Mr. Newstreet had no independent knowledge of whether there were sufficient uplands to develop the property into a private docking facility. In sum, not only did Mr. Checca's and Mr. Newstreet's testimony on this issue amount to pure speculation, but it was also contrary to the parties' acknowledgement that the parent tract included only submerged lands and no uplands. Yoder, 81 So. 2d at 221. Because the jury had to conclude that sufficient upland property was available to Respondent in order to decide that Respondent's development plan was feasible, such speculative testimony must have tainted the jury's verdict. The witnesses' testimony failed to acknowledge the fact that the adjacent building's condominium association created under Chapter 718, Florida Statutes, would be the applicant in any zoning application for the private dockage facility if it provides upland access. No such evidence was presented that the board of directors of the condominium association had ever discussed being. an applicant for a private dockage facility. For this reason as well, a new trial should be granted. E. Respondent's witnesses were permitted to testify that the 46 boat slips could be sold to Winston Tower condominium unit owners, despite the fact that they had no factual support for that assertion. Perhaps the most flagrant speculative evidence that the court allowed to reach the jury was a conceptual site plan depicting 46 boat slips, addressed in subsection III.F. below, combined with the testimony of Mr. Checca and Mr. Newstreet which asserted that that the 46 boat slips could have been sold to the Winston Towers Condominium Association unit owners. Other than the unsubstantiated opinion testimony from these witnesses, there was no factual 10 support—testimony or documentary—for this naked assertion. Before any sale of boat slips, the adjacent building's condominium association is required to apply for any permits for a private dockage facility. For his part, Mr. Checca testified that it was a "no brainer" that the 46 boat slips could have been purchased by the Winston Tower unit owners. Trial T. 697 ("You have a captured audience there of six towers for Winston Towers of hundreds and hundreds of units and you're talking about building a 46-slip marina, it's less than 1% demand. It's a no-brainer."). 2 Mr. Newstreet for his part, testified that he looked for sales comparable to the subject property for purposes of valuation, transactions that were comparable based on time, location, and physical characteristics, among other things. Trial T. 739, 743. Mr. Newstreet, however, conceded that he had never worked for a developer on a private docking facility project. Trial T. 734. In addition, Mr. Newstreet testified to the sales comparison study he performed involving three allegedly similar boat slip development projects on which he based his opinion that each slip would sell for $75,000. Trial T. 713-15. However, those development projects were distinguishable from the subject property because all of those projects had some upland parcels available to them for purposes of development. Specifically, the boat slips at the Royal Harbor project were associated with townhomes and therefore had upland property associated with it. Trial T. 746-48. The Gables Waterway and King Cole projects were associated with condominium associations and likewise had upland property available. Trial T. 748-49. Similarly, the docking facilities referred to by Mr. Checca also had upland property available to them. Trial T. 684-85, 687. In particular, the Port Vita development was associated with a 2 Mr. Checca also speculated that because some boats were parked in the canal illegally, that was evidence of a demand for boat slips. Trial T. 690-91. Petitioner's counsel pointed out the fallacy in this assumption, asking_Mr. Checca, "if people had an opportunity to park illegally without being subject to enforcement action, boats would do that rather than pay of a boatslip, is that correct?" Trial T. 691. Mr. Checca ultimately conceded that"[i]f you can get something for free,obviously,people will take advantage of that." Trial T. 691. 11 condominium association. Trial T. 687. And the developer of the Mystic Pointe marina also owned the uplands. Trial T. 662. Here, by contrast, Respondent presented no evidence whatsoever that he had control of any upland parcels, either through ownership, a lease, or a development agreement with any adjacent landowners. As such, neither Mr. Newstreet's sales comparison study nor Mr. Checca's testimony supported the conclusion that the 46 boat slips at issue could be sold to the Winston Tower condominium unit owners. Even more, Mr. Newstreet admitted that he had not performed any market surveys to determine whether any Winston Towers unit owners were interested in buying a private boat slip. Trial T. 753-55. He had not spoken to any developers to assess whether they would buy the subject property under these conditions. Trial T. 745. In fact, Mr. Newstreet's research did not uncover an expression of interest by any entity in purchasing and developing the property. Trial T. 757. The evidence related to the amount of severance damages Respondent incurred was based on pure speculation, was improperly admitted, and contaminated the entire trial. See Yoder, 81 So. 2d at 221. Indeed, based on his conclusion that the 46 boat slips could be sold to the Winston Tower condominium unit owners, Mr. Newstreet opined that the compensation due to Respondent for the taking of the subject property was $60,000 and the amount of severance damages was $795,000. The jury awarded those very same amounts to Respondent. Clearly, the jury's verdict was influenced by the speculative testimony of Respondent's witnesses. F. The trial court should have prohibited Respondent's use of the conceptual site plan as a demonstrative exhibit. At trial, the court allowed Respondent to use as a demonstrative exhibit a conceptual site plan depicting the 46 boat slips, which was created by Mr. Checca. Trial T. 671. Because the 12 conceptual site plan had not been approved by any governmental authorities, the trial court should have precluded its use at trial. The Third District Court of Appeal addressed a similar issue in City Nat'l Bank of Florida v. Dade County, 715 So. 2d 350 (Fla. 3d DCA 1998). There, the Third District held that the trial court properly granted a motion in limine excluding. a property owner's conceptual site plan where the owner never submitted the site plan to the county for approval. Id. at 352-53. The court noted that "the owner's development plans had never proceeded to the point that the owner was prepared to commit itself to any particular site plan," and therefore, it was proper to exclude such speculative testimony regarding. the owner's intentions to follow through with such development. Id. at 352. "Since the owner's purpose in offering the conceptual site plan into evidence was to support the owner's claim for severance damages, the order in limine was properly entered." Id. at 353; see also State Dep't of Transp. v. Target Corp., 937 So. 2d 703, 706 (Fla. 4th DCA 2006) (concluding that property owner could not introduce evidence of expansion and future building plans that were not included in the site plans initially approved by the city; explaining that "kin determining a reasonably probable loss as opposed to a speculative loss, the property owner must show affirmative steps undertaken to make future plans a reality"). Similarly, here, Respondent had never submitted the conceptual site plan to the City of Sunny Isles Beach for approval. Moreover, Mr. Tucker, during. the video-deposition that was played at trial, admitted that he had taken no affirmative steps to develop the property. Trial T. 480-82 (Mr. Tucker admitting that no site plans had been submitted to any governmental entity, and that no agreements or negotiations with Winston Tower Condominium property owners had been entered into), id. at 484 (Mr. Tucker admitting that no engineers had been hired for any work relating to the property). Thus, the conceptual site plan here should not have been 13 displayed to the jury. See City Nat'l Bank, 715 So. 2d at 352-53; see also Target Corp., 937 So. 2d at 706 (holding trial court erred in denying petitioner's motion in limine to exclude respondent's site plan when respondent had neither included the disputed site plan in its original submittal to the city nor taken any affirmative steps toward fulfilling the plan). This was yet another fundamental error that contaminated the trial. G. The speculative testimony erroneously admitted was especially prejudicial because it came from expert witnesses. It is well-established that expert witnesses are not permitted to give opinion testimony that is based upon pure speculation. See, e.g., Cerna v. S. Fla. Bioavailability Clinic, Inc., 815 So. 2d 652, 655 (Fla. 3d DCA 2002) ("A court 'must assure itself that the [expert] opinions are based on relevant scientific methods, processes, and data, and not upon an expert's mere speculation.— (quoting Berry v. CSX Transp., Inc., 709 So. 2d 552, 569 n.14 (Fla. 1st DCA 1998)); see also M.A. Hajianpour, M.D., P.A. v. Khosrow Maleki, P.A., 932 So. 2d 459, 464 (Fla. 4th DCA 2006) ("When the expert's opinion is based on speculation and conjecture, not supported by the facts, or not arrived at by recognized methodology, the testimony will be stricken."). Yet, in the instant case, that is exactly what occurred. In the eyes of a jury, opinion testimony from an expert is, in all likelihood, given great weight. To that end, it is imperative that the court fulfill its role as a gatekeeper and ensure that no speculative opinion testimony is admitted. Here, the fact that the above-described speculative testimony came from Respondent's experts therefore compounded the prejudicial effect of its admission. 14 III. The trial court erred in substituting Karen Tucker, Trustee, as Respondent at the eleventh hour and on improper notice. On the date of valuation and for the three years that this case was pending, the Respondent was Jeffrey Tucker, as trustee of the Florida Land Trust that owns the subject property. Just days before trial, however, Mr. Tucker resigned as trustee, whereupon Ms. Karen Tucker (his wife) became successor trustee. As such, on the evening of May 29, 2015 (the Friday before trial), Respondent filed a Notice of Substitution of Party pursuant to Florida Rule of Civil Procedure 1.260(c) on the basis that Mr. Tucker's interest as trustee had been transferred to Ms. Tucker. On the morning that trial was to begin, when the court addressed the Notice of Substitution, Respondent misadvised the Court regarding the requirements of Rule 1.260, stating "[y]ou don't have to file a motion to substitute parties under the rule." Trial T. 251. Over Petitioner's objection, the Court allowed the substitution of parties, despite the fact that Mr. Tucker filed a Notice, and not a motion, as required by Rule 1.260. Rule 1.260 allows the substitution of parties when a transfer of interest has occurred. Specifically, Rule 1.260(c) provides: In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party. Fla. R. Civ. P. 1260(c) (emphasis added). Rule 1.260(c) further requires that "service of the motion [to substitute] shall be made as provided in subdivision (a) of this rule." Fla. R. Civ. P. 1.260(c). Subdivision (a) of the rule, in turn, provides that the "motion for substitution may be made by any party," and "together with the notice of hearing, shall be served on all parties as 15 provided in rule 1.080 and upon persons not parties in the manner provided for the service of a summons." Ha. R. Civ. P. 1.260(a)(1). Here, Respondent did not file a motion to substitute party, as required by Rule 1.260(c), but instead filed a Notice of Substitution.3 Because Respondent failed to follow the proper procedure set forth in Rule 1.260(c), and because the Notice of Substitution was filed at the eleventh hour, Petitioner was not given a full and fair opportunity to be heard on the matter. Cf. Metcalfe v. Lee, 952 So. 2d 624, 630 (Fla. 4th DCA 2007) (explaining that "[a] notice of hearing must accompany the motion" and that "[o]nce the motion and notice of hearing are timely made, . . . it is then up to the trial court to decide whether there is a proper party to be substituted during the mandated hearing on the motion" (emphasis added)). Indeed, while Petitioner did not dispute the transfer of interest had occurred, Petitioner preferred the court join Ms. Tucker with the original Respondent, Mr. Tucker—which is one of the options available to the court under Rule 1.260(c)—rather than dropping Mr. Tucker as a Respondent altogether. Alternatively, the court had the discretion to order that the action be continued in Mr. Tucker's name alone. See Fla. R. Civ. P. 1.260 ("In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party." (emphasis added)). Either option would have ensured that Petitioner received a fair trial against the party against whom it had been litigating for three years. Instead, the court allowed Mr. Tucker to prevail in his last-minute attempt to skew the results of trial. Ms. Tucker was nothing more than a last minute proxy for Mr. Tucker to gain sympathy from the jury. 3 In addition, Respondent did not file a notice of hearing_ on his Notice of Substitution. Instead, the Notice of Substitution was addressed on the morning trial itself was to begin, and only because Petitioner asked the Court to address the issue. Trial T. 248-52. 16 Indeed, it was important to Petitioner's case to have Mr. Tucker seated at Respondent's table during. trial. This is because Mr. Tucker's credibility was questionable at best. Moreover, Petitioner played for the jury a videotape of Mr. Tucker's deposition, during which he admitted that he had taken no affirmative steps to develop the property prior to the valuation date of December 17, 2012. Even more, Mr. Tucker appeared combative, abrasive, evasive and overall unlikeable throughout the entire videotaped deposition. By way of example, Mr. Tucker refused to answer even the most basic of background questions that is asked of any party during any deposition, i.e. where do you live? Mr. Tucker refused to indicate where he lived and appeared visibly upset by this simple question. By contrast, Ms. Tucker, who became trustee just days before trial, while unknowledgeable about the efforts that had been taken to develop the land, came across as a sympathetic figure who was merely looking out for the best interests of the trust's beneficiaries. Trial T. 250. Significantly, Ms. Tucker testified that the beneficiaries of the underwater property trust were her children. Trial T. 769. Even more significant, Ms. Tucker testified that any money given to the trust beneficiaries would be used to fund the trust beneficiaries' college fund. Trial T. 769. This testimony was entirely prejudicial to the Petitioner and underscored the trial-by-ambush tactics employed by Respondent. Conversely, Mr. Tucker, throughout his deposition never stated that the underwater property was for the benefit of his children's college fund. When compared to her predecessor Mr. Tucker, Ms. Tucker was a sympathetic Respondent in the eyes of the jury. Lastly, without a request made by either party, the court unilaterally decided to change the style of the case on the verdict form to include Ms. Tucker's name. a In addition, Petitioner was forced to subpoena Mr.Tucker to appear at trial. On May 25,2015,Respondent filed a Motion to Quash Subpoena for Trial: Despite the fact that the court noted that Petitioner"had every right to call Mr. Tucker"as a witness at trial,Mr.Tucker did not appear for trial, in violation of the subpoena. 17 The dropping of Mr. Tucker, therefore, prejudiced Petitioner in the presentation of its case and, in Petitioner's view, made it more likely for the jury to render a verdict in Respondent's favor. For this reason as well, a new trial should be granted. IV. Alternatively, because the jury award was based upon erroneously admitted evidence, remittitur is appropriate. Upon a request for remittitur, a trial court can reduce the amount of damages awarded in a jury verdict "to the highest amount which the jury could properly have awarded." Lassitter v. Int'l Union of Operating Engineers, 349 So. 2d 622, 627 (Fla. 1976). Here, remittitur of the jury verdict is appropriate because the $855,000 verdict was based solely upon the inadmissible, speculative evidence offered by Respondent. In fact, the only admissible evidence regarding the amount of damages was the testimony of Petitioner's experts, who opined that Parcel A was worth $1,000 and that Respondent was entitled to no severance damages at all. As such, the court should reduce the verdict to the amount of$1,000 if Respondent prefers such relief in lieu of a new trial. See Dura Corp. v. Wallace, 297 So. 2d 619 (Fla. 3d DCA 1974) (acknowledging that party adversely affected by remittitur may opt for new trial instead). WHEREFORE, for the reasons set forth above, this Court should grant Petitioner a new trial, or grant Petitioner's request for remittitur, and grant such further relief as it deems just and proper. Respectfully submitted SHUTTS & BOWEN LLP Attorneys for Petitioner 200 East Broward Boulevard, 2100 Fort Lauderdale, FL 33301 Telephone: (954) 524-5505 Facsimile: (954) 888-3063 By: Is/Sidney C. Calloway Sidney C. Calloway 18 ■ Florida Bar No.: 790982 scalloway@shutts.com Hans Ottinot, City Attorney hottinot @sibfl.net Fernando Amuchastegui, Deputy City Attorney fernando@sibfl.net CITY OF SUNNY ISLES BEACH 18070 Collins Avenue, 4th Floor Sunny Isles Beach, Florida 33160 Tel: 305-792-1702 Fax: 305-792-1562 19 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this June 19, 2015, a true and correct copy of the foregoing has been served via electronic mail to Hans Ottinot, Esq., City Attorney, City of Sunny Isles Beach, 18070 Collins Avenue, Sunny Isles Beach, FL 33160 (hottinot @sibfl.net; legaldept @sibfl.net); Debra Herman, Jason Bloch, Miami Dade County Attorney, Attorney for Miami-Dade County Tax Collector, Stephen P. Clark Center, 111 Northwest 1st Street, Suite 2810, Miami, FL, 33128 (DHerman @miamidade.gov) (jbloch @miamidade.gov) (olgal @miamidade.gov); J. Wiley Hicks, Esq., The Law Office of Wiley Hicks, 5730 S.W. 74th Street, Suite 400, Miami, FL 33143 (wiley @wileyhicks.com), Attorney for K. Tucker, Trustee; Calvary Corp., do Jeffrey Tucker, as sole surviving director, P.O. Box 144366, Coral Gables, FL 33114; and R. Tucker, Trustee, P.O. Box 144366, Coral Gables, FL 33114, The Law Offices of Avraham A. Spivak P.A., 1001 North Miami Beach Boulevard, North Miami Beach, FL 33162 (abespivak @gmail.com.); and Michael Schwager, BECKER & POLIAKOFF, P.A., Attorneys for Intervenor, 121 Alhambra Plaza, 10th Floor, Coral Gables, FL 33134, (mmandler @bplegal.com, mschwager @bplegal.com, cpons @bplegal.com) /s/Sidney C. Calloway Sidney C. Calloway FTLDOCS 6866832 3 20 Filing # 28733182 E-Filed 06/19/2015 05:03:36 PM IN THE CIRCUIT COURT OF THE 111H JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA SUNNY ISLES BEACH, a political subdivision of the State of Florida, CASE NO.: 12-26693 CA09 Petitioner, PARCEL A vs. CALVARY CORP, a dissolved Florida corporation; R. TUCKER,TRUSTEE;J. TUCKER, TRUSTEE; and MIAMI-DADE COUNTY, Respondents. NOTICE OF AUTOMATIC STAY NOTICE IS GIVEN that, pursuant to Florida Rule of Appellate Procedure 9.310(b)(2), the Final Judgment rendered on June 12, 2015, is automatically stayed pending appellate review of the Final Judgment by the Third District Court of Appeal, as Petitioner/Appellant has filed concurrently herewith a timely Notice of Appeal of the Final Judgment. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this June 19, 2015, a true and correct copy of the foregoing has been served via electronic mail to Hans Ottinot, Esq., City Attorney, City of Sunny Isles Beach, 18070 Collins Avenue, Sunny Isles Beach, FL 33160 (hottinot @sibfl.net; legaldept @sibfl.net); Debra Herman, Jason Bloch, Miami Dade County Attorney, Attorney for Miami-Dade County Tax Collector, Stephen P. Clark Center, 111 Northwest 1st Street, Suite 2810, Miami, FL, 33128 (DHerman @miamidade.gov) (jbloch @miamidade.gov) (olgal @ miamidade.gov); J. Wiley Hicks, Esq., The Law Office of Wiley Hicks, 5730 S.W. 74th Street, Suite 400, Miami, FL 33143 (wiley @wileyhicks.com), Attorney for K. Tucker, Trustee; 1 Calvary Corp., do Jeffrey Tucker, as sole surviving director, P.O. Box 144366, Coral Gables, FL 33114; and R. Tucker, Trustee, P.O. Box 144366, Coral Gables, FL 33114, The Law Offices of Avraham A. Spivak P.A., 1001 North Miami Beach Boulevard, North Miami Beach, FL 33162 (abespivak @gmail.com.); and Michael Schwager, BECKER & POLIAKOFF, P.A., Attorneys for Intervenor, 121 Alhambra Plaza, 10th Floor, Coral Gables, FL 33134, (mmandler @bplegal.com, mschwager @bplegal.com, cpons @bplegal.com.) /s/Sidney C. Calloway Sidney C. Calloway 2 I � SvNNY ts<F Cat of Sunny sles Beach City Commission s y y George"Bud"Scholl,Mayor ° F 18070 Collins Avenue, Suite 250 Jeanette Gatto, Vice Mayor F- y ' Isaac Aelion Commissioner o 'y `%4' = Sunny Isles Beach; Florida X3160 Dana Goldman.Commissioner . .g- , �- -�"" (305)947-0606 City Hall Jennifer Levin,Commissioner (305)949-3113 Fax a '991=`` —'%or*y P Christopher J.Russo City Manager yE' F L o ‘ 5' (305)947-2150 Building Department Hans Ottinot,City Attorney c'''''of suN Pao (305)947-5107 Fax Jane A.Hines,MIMIC,City Clerk MEMORANDUM TO: The Honorable City Commission FROM: Hans Ottinot, City Attorney (' r DATE: July 16, 2015 RE: Resolution ratifying an agreement to retain Rodolfo Sorondo, Esq. and Christopher N. Bellows, Esq. of Holland & Knight to represent the City in the Appeal of Case Styled City of Sunny Isle Beach v. Calvary Corp., Case No. 12- 26693-CA-09 RECOMMENDATION: This Resolution is presented for your consideration. REASONS: As you know, the City has filed an appeal of the jury verdict issued in the eminent domain case involving the submerged land for the Emergency Pedestrian Bridge. The primary basis for the appeal is the erroneous admission of speculative evidence by the court as outlined in the attached letter by special counsel, Sidney Calloway, Esq. Through tenacious litigation strategy over a three year period, the City was able to reduce an initial damage claim of$5.8 Million Dollars to $855,000.00. We strongly believe that this amount can be reduced further if the City is able to prevail in the appeal. To assist in the appeal, I have retained the services of the law firm of Holland and Knight. Specifically, Rodolfo Sorondo, Esq. and Christopher Bellows, Esq. will assist the City in the appeal. Both Mr. Sorondo, and Mr. Bellows are highly qualified and well respected in the field of appellate litigation. Their biographies are attached. Please note that Holland and Knight is also represented the City in the mayoral election case and the firm will charge the same rates. As a point of information, the City has filed a Motion for a New Trial before the trial court to preserve its appellate issues. The City has also filed a Motion to Stay the Judgment issued by the trial court. Consequently, the City will not be required to pay any judgment amount until the appeal is resolved. i