HomeMy WebLinkAboutItem #6 - Discussion ItemHonorable May4n'and a- June 28, 1985
Members o k-the Yity Commission
Status report on disposition
.� of cases in the City Attorney's
i
Office; Request for direction.
++ Luc: DougheV,(ty City Commission Agenda, 7/19/85
City Attorney f
(attached)
The following information and material is a current status report
on
the disposition of cases in the City Attorney's Office; except for
the
last case noted (#20 on pages 8-9), there is no positive action to
be
taken by you:
1.
MAX ELL BERGER & LILLIAN BERGER vs. CITY OF MIAMI
The Plaintiffs were involved in a 1978 automobile acciden'
and claimed permanent, disabling injuries, including stress whici�
ultimately resulted in a triple coronary bypass. Before trial:
the Plaintiffs' attorney demander' $50,000 settlement of bot..
claims and requested $250,000 of the jury. The case was tried for
a one week period and the Circuit Court jury returned a verdict
of $50,000.00 with 60% negligence attributable to the driver, i
which will result in a $20,000 recovery plus costs. The case was
tried by Assistant City Attorney Jorge L. Fernandez, with t;
assistance of Deputy City Attorney Gisela Cardonne.
2.
OZZIE BROWN vs. CITY OF MIAMI
The Plaintiff, an elderly man, had claimed that he had
tripped over a defective metal grill which had caused serious
injury to his foot. The injury ultimately became gangrenous and
required amputation above the knee. Plaintiff subsequently died
and the Estate was never substituted as a party. Upon the City's
motion to dismiss for failure to substitute a proper party, the
case was voluntarily dismissed by the Circuit Court. Immedi-
ately prior to dismissal, the Plaintiff's attorney had demanded
$35,000 in settlement. The case is now closed. It was handle:;
by Gisela Cardonne.
3.
JOHN R-. FARRELL & PAMELA LAZAR vs. CITY OF MIAMI
The City had sought an injunction preventing the improper
use of a home in a residential area as the law office of the
Plaintiff. The lower court entered a summary judgment in favor
of the City, which was appealed. The U.S. llth Circuit Court of
Appeals affirmed in favor of the City in an unanimous opinion.
The trial was handled by Assistant City Attorney Leon Firtel and
the appeal by Gisela Cardonne.
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RICHARD FABIAN vs. CITY OF MIAMI, ET AL.
Richard Fabian has brought- numerous lawsuits against the
City in the Southern District of Florida, all of which allege the
Plaintiff's civil rights violation. Case No. 84-812 was dis-
missed by the Judge and is now on appeal. Another case was also
dismissed on the City's motion, and the Plaintiff's appeal to the
U.S. llth Circuit Court of Appeals was dismissed. The Petition
for Writ of Certiorari before the U. S. Supreme Court, which was
opposed by the City, was denied; therefore this latter case is
closed. The cases were handled by Gisela Cardonne.
5.
MICHAEL LIOTTI vs. CITY OF MIAMI
The Plaintiff had sued the City in Circuit Court for
benefits allegedly due him under his employment contract with th,
City. The case was dismissed. The Plaintiff then appealed to the
Third District Court of Appeal and that Court, based on the
authority of a prior case also litigated by this office, City of
Miami v. Sigman, dismissed the case for failure to exhaust
administrative remedies. Assistant City Attorney Albertine Smit^
handled the trial proceedings and Gisela Cardonne managed th
appeal.
6.
KENNETH WILSON vs. CITY OF MIAMI, ET AL.
Kenneth Wilson was a firefighter who had contracted mono-
nucleosis, which he claimed to be a compensable work related
injury. The First District Court had reversed an Industrial
Commissioner's award, since the Plaintiff's doctor's testimony
failed to establish that there was a reasonable medical probabil-
ity that the disease had been work related.
The employee petitioned the Florida Supreme Court for a Writ
of Certiorari which was denied. Jorge Fernandez tried the casEi
and Gisela Cardonne handled both appeals.
7.
BARUCH VEGA vs. CITY OF MIAMI, ET AL.
Plaintiff filed a $10,050,000 defamation claim in th
Circuit Court against the City, Cesar Odio, and principals of the
Miss Universe Committee in Circuit Court. We moved the Court
to dismiss the case against Mr. Odio and the City, based or,
various procedural improprieties. The State Judge granted the
City's motion to dismiss, but allowed Plaintiff to amend the
complaint against Assistant City Manager Cesar Odio. The Court
did not allow Plaintiff to amend a-gainsc the City. When Plaintiff
failed to amend within the time specified by the Court, the Court
issued another Order dismissing the case. Plaintiff then moved to
allow the filing of an Amended Complaint, but failed to move tho
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Honorable Mayor and Members =3� �0�1� 28j 19$S
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Status report on disposition of
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Court to set aside the second Order dismissing the case. we
argued that the Court no longer had jurisdiction to consider a
Motion to Amend the complaint and the Court agreed. The case is
now dismissed and since no appeal was taken of the final Order of
Dismissal, the Plaintiff cannot refile either against the City
or Cesar Odio. Assistant City Attorney Maria Chiaro was the trial
attorney.
8.
HUBERTO E. MERAYO vs. ECKERT & CITY OF MIAMI, ET AL. and
ANDRES NOBREGAS vs. ECKERT & CITY OF MIAMI, ET AL.
These were two cases filed in State Court which were
properly removed to Federal Court. The Plaintiffs alleged Pals
arrest and imprisonment, assault, and violation of constitutional
rights, under 42 U.S.C. Sec. 1983, and in addition, negligence
and gross negligence. Upon removal to Federal Court, the Cite
filed an Offer of Judgment of $500 each, which the Plaintiffs
accepted. Trial costs of such cases can exceed $10,000 to
$15,000. Maria Chiaro was the trial attorney.
9.
DENTON vs. CITY OF MIAMI
This case was tried in Circuit Court during April, 1985
based on false arrest, false imprisonment, excessive use o,.
force, and negligence. The Plaintiff demanded $50,000 at the
beginning of the trial as compensation, and the Jury returned a
verdict of only $10,000. The trial was handled by Assistant City
Attorney Richard L. Druks. Please see the attached letter from
Officer Ervin Garriga, who commended Mr. Druks' handling of the
case.
10.
FORFEITURES
The following awards were obtained from the Court by
Assistant City Attorney Judith Secher of the City of Miami Police
Legal Unit during the month of December, 1984:
U.S. Currency $65,669.00
Motor Vehicles 2
The above awards brings our total for the year 1984 as follows:
U.S. Currency $685,686.00
Motor Vehicles 19
Other property awards are indicated as follows:
From January 1, 1984 to December 1, 1984, the City of Miami
was awarded the following monies and property pursuant to the
Forfeiture Statute:
$620,017.00 in U.S. Currency
17 motor vehicles
2 boats
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fiot Honotable Mayor and Members "4� dune 81985
Of the City Commission
Ret Status report on disposition of
cases in the City Attorney's Office
5 Units Radio Equipment
27 Firearms
2 Calculators
1 Tape Recorder
116 pieces Sterling Silver '($3,000>estimated value)
Additional pending forfeiture cases include:
$633,704.00
35 motor vehicles
7 guns
4 boats
Radio receiving equipment.
11. GREGORY WERTHEIMER vs. CITY OF MIAMI and METROPOLITAN DADE
COUNTY
Plaintiff alleged that he received injuries when he fell
into a pothole while riding a motorcycle on Douglas Road. The
accident occurred on a section of Douglas Road that was included
in the roadway system of Metropolitan Dade County. Therefore, we
argued that the City had no duty to inspect or repair the
roadway. The City's Motion for Summary Judgment was granted b.
the Circuit Court. Albertine Smith was the attorney handling
this case.
12. STEVEN SMILEY vs. CITY OF MIAMI and ROBERT KRAUSE
Plaintiff alleged that he was entitled to Veteran's Prefer-
ence Points on a Police Sergeant's promotional examination given
on August 15, 1977. The law in effect at that time provided that
Preference Points would be awarded on a Veteran's first promotion
after reinstatement or reemployment. Since Plaintiff was already
a Veteran when he was hired by the City and had never interrupted
his employment for service in the military, he was not reinstated
or reemployed and not entitled to Preference Points on the
examination. At trial, the Circuit Court ruled that Plaintif'.'
failed to state a cause of action; that the complaint was barred
by the Statute of Limitations; and that Plaintiff had failed tc
exhaust his administrative remedies. Albertine Smith was the
attorney for the City.
13. ROBERT GALAMIDI vs. HOLLAND PAVING CO. and CITY OF MIAMI, and
NATHANIEL HIGGS vs. HOLLAND PAVING CO. and CITY OF MIAMI, and
EILEEN WILLIAMS vs. CITY OF MIAMI
The City of Miami had contracted with a paving company to
resurface and reconstruct the street surface at the intersection
of N.W. 55 Street and 14 Avenue. During the course of the work,
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Honorable Mayor and Members Junt 280 158E
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Status report on disposition of
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a stop sign that had controlled traffic at the intersection was
removed. The absence of a traffic control device led to a
multi -vehicle accident with injuries, involving two cars and a
semi -tractor trailer. we successfully contended before the
Circuit Court that the indemnification clause in the contract
made the contractor rather than the City liable for any injuries
resulting from the removal of the stop sign. The three cases
were closed by Voluntary Dismissals as to the City of Miami.
Albertine Smith handled these cases.
14.
MANUEL TORREZ vs. ROENCA CORP. and CITY OF MIAMI
In this Circuit Court case, Plaintiff was mowing a lawn
adjacent to the site of a sanitary sewer improvement project i:.
the City of Miami. The City had contracted with an independent
contractor to construct the improvements. The work on the projec'.
involved the digging of several large holes for sewers. Plain-
tiff with his lawnmower backed into one of the holes that had
been left uncovered. He was injured. we successfully contended
that the indemnification clause in the contract made the contrac-
tor rather than the City liable for Plaintiff's injuries. Th
case was closed by a Voluntary Dismissal as to the City of Miami
Albertine Smith was the attorney.
15.
AMBROSE SIMS vs. CITY OF MIAMI
Plaintiff had long standing litigation for alleged viola-
tions of civil rights against Lt. Robert Yee who was an instruc-
tor at the Police Academy. Prior to trial, the Plaintiff
demanded $20,000 in settlement. The case was tried for one week
in Federal Court. Immediately prior to the Jury commencing its
deliberations, the Plaintiff accepted the offer of $4500. The
decision to settle was ;Wade since the Co -Defendant was instructed
to settle by his principal, the Risk Management Division of the
City of Hialeah, and Lt. Yee faced compensatory and punitiv.-.
damages claims and would have been left alone at trial. Please
see a copy of the attached letter from Lt. Yee commending Gise.
Cardonne, who handled the trial.
16.
GOLDEN NUGGET GROUP vs. CITY OF MIAMI, ET AL.
The Plaintiffs, a group of hotel owners in North Dade
County, challenged the constitutionality of a 3% bed tax. The
Circuit Court ruled in favor of the hotel owners and the City
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appealed to the Third District Court of Appeal, which reversed
the decision.
The hotel owners appealed to the Florida Supreme Court,
which affirmed he decision of the Third District Court of
Appeal. A copy of the Supreme Court opinion is attached.
Assistant City Attorney Robert Sechen handled the trial and he
with Gisela Cardonne handled the appeals at the Third District
Court and Florida Supreme Court.
17. RANDY RANDALL vs. CITY OF MIAMI
The City had seized $768,000 by way of forfeiture which was
challenged after the Circuit Court judgment was entered, and the:
appealed to the Third District Court of Appeals, which ruled if,
favor of the City being able to keep the money seized. The appeal
was handled by Gisela Cardonne.
18. JOSEPH ROBBIE vs. CITY OF MIAMI
The City attempted to reduce to writing a settlement of
pending litigation with Joe Robbie and the Miami Dolphins, when
Robbie refused to sign the agreement containing an "Act of God'
clause. The settlement involved the payment of $30,000 per game
or the playing of one extra game during the '85 season, and on,
game in the '86 season. The City included in the agreement a
clause that would have required the payment if the games were not
played for an "Act of God" reason, i.e. a hurricane, destruction
of the Orange Bowl due to a natural disaster, etc.
Upon Robbie's refusal to sign, he filed a motion to enforce
the settlement without the disputed clause. The Trial Judge in
the Circuit Court enforced the agreement without the clause. The
City appealed to the Third District Court of Appeal, whic),
reversed the Trial Judge's ruling.
In an unprecedented ruling, the Florida Supreme Cour:.
granted a writ of common law certiorari upon Robbie's petition.
Its action was unprecedented since the Supreme Court does not
have common law certiorari jurisdiction. It was only at ora
argument that Justice Overton mentioned that the Justices hay:
granted certiorari since they felt the Third District Court of
Appeal had applied a subjective test as to whether the parties
had reached an agreement. The decision recites conflict with
another Florida case, and, therefore, meets a constitutional
challenge for lack of jurisdiction, since the Supreme Court does
have conflict jurisdiction.
we
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The Dolphins represented to the Court that they have made
plans to comply with the extra game in 1985 and in 1986, as per
the agreement. Therefore, a problem will only arise if the
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Dolphins cannot play the extra games due to an "Act of God" at
which time the City would have to commence litigation. We
expected the above result since it ends litigation at present and
only leaves speculative lawsuits for the future, if necessary.
Any other result would have required a full trial on the issue of
damages since the Trial Court had ruled in favor of the City on
the issue of liability.
The only legal issue was whether the parties had objectivel•.
reached a settlement, a question which strictly and narrowly
involved Florida law. Since there were no Federal issues raised
and the Court remedied the jurisdictional problem, there are nc.
Courts to which the City could have appealed a decision of the
Florida Supreme Court, which is the State's highest court.
Attached is the Court's opinion, which was rendered on May
23, 1985. Gisela Cardonne handled the appellate proceedings.
19.
V. LUCKEY vs. CITY OF MIAMI
The Third District Court of Appeal has ruled in favor:
of the City and denied a Petition of Common Law Writ of Certio—
rari directed at the following two issues in the case:
(A) Psychotherapist/Client Privilege: Whether the City
should be prevented from obtaining psychiatric records of the
Plaintiff who claimed mental anguish and who had previously been
diagnosed as paranoid schizophrenic. The Third District Court of
Appeal upheld the Trial Judge's Order in the Circuit Court
allowing us to subpoena the medical records of the Plaintiff.
(B) Public Records; Criminal Investigative File: Whethe--
the Plaintiff is entitled to review the criminal investigation
file of an open investigation, where there have been no leads f,.,L
a period of time longer than one year, and where the Trial Court
conducted an in camera inspection of the file and determink,:
that the Plaintiff's name was not in the file? The Court upheld
the Trial Judge's Order preventing the discovery of the Police
Department file on the investigation.
Based upon the above rulings, the Plaintiff dismissed his
claim for false arrest. Gisela Cardonne handled the trial and
appeal.
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-20. SUNSET VILLAS vs. JACAROL
In this case, a developer had requested variances for 3
parking structures (32.51; 42.5'; and 82.5') where the permitted
zoning height was 121. The Zoning Board granted the variances
and objecting neighbors appealed to the City Commission.
The Commission considered the neighbors' appeal from the
Zoning Board and the motion failed on a vote of two "yes", two
"no", and one abstention. The effect of such a vote is that the
Zoning Board decision was upheld and the neighbors appealed to
the Circuit Court, Appellate Division, which found that the
neighbors had standing to do so.
The standard of review at the Circuit Court was whether the
applicant for the zoning variance, the developer, presented the
Zoning Board with substantial competent evidence to support its
petition. One of the elements required for the granting of a
variance is that the owner suffer from a hardship as a result of
the intrinsic nature of the property. Here, the need for
variance arose out of the developer's proposed use, which
required greater parking, not out of any properties of the land
itself. The Circuit Court found that the "project was con-
sidered, the possibility that changes might be needed was
discussed, and other matters which might be relevant to rezoning
were discussed. But hardship within the meaning of Elwyn was not
shown by substantial competent evidence."
The Circuit Court, Appellate Division, rendered its decision
in this matter on May 8, 1985, quashing the Zoning Board's
granting of a variance for failure to show hardship. The
developers, Central Bank & Trust, land trustee for Kean Enter-
prises, S.A., Mario Fonseca and Jacarol Bay Club, filed a motion
to vacate and motion for rehearing. The original objectors to
the variance, Sunset Villas Condominium Assn., filed a reply t---
the developers' motion for rehearing. The Court's decision is
not final until the Court rules on the motion for rehearing.
Thereafter, a petition for writ of certiorari may be filed
with the Third District Court of Appeal. This would be a
discretionary appeal, where the District Court will only take
jurisdiction if the Circuit Court is found to have violated an
essential requirement of law, in the absence of another adequate
method of review. A review of the record and briefs filed with
the Circuit Court reflects that it is not likely that the Third
District Court would make such a finding.
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The issues on appeal
to the Third District Court are
strictly limited to issues of
interest to either the developer or
the neighbors. If the City
petitions for a writ of certiorari,
it would necessarily have to
take the side of either party. An
appellate court has already determined that there was not
substantial competent evidence
to support a zoning variance. It
is highly unlikely that the
Third District Court will find that
the Ciccuit Court violated essential
requirements of law in its
proceedings. Accordingly, we
recommend that no petition for writ
of certiorari to the Third
District Court of Appeal on thi-
matter be filed by the City.
LAD/GC/fl/455
ENCLS.
cc: City Manager
City Clerk
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Cli'Y Sr MIaMI. FLORIDA
INTI P..4-0rektt SiItMORANOUM
Aprii 15 1935
Lucia Dougherty -� -R $'
j City Attorney
(Through Channels) a Richard L. Druks
Officer Ervin Garriga, Denton vs. City of Miami
Patrol/SPU (Commendation)
I would like to take this opportunity to commend .Assistant City
Attorney, Richard L. Oruks, for his professional efforts in the
handling of the case Denton vs. City of Miami.
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deO-led in A. 125:011(1)" to levy a `rupee pereeht convention
development tax an payments :wade to rent, lease or use any living
quarters or accommodations. Section 212.057 provides that the
tax revenues must be used to improve the largest existing
develooment tax on the amount of any payment made by
any person to rant, lease, or use for a period of 30
days or less any living quarters or accommodations in
a hotel, apartment hotel, mote!, resort :note!,
apartment, apartment motel, rooming house, tourist or
trailer camp, or condominium.
(2) all tax revenues and any interest accrued
thereon received pursuant to this section shall be
used as follows:
(a) Two-thirds of the croceeds shall be used to
extend, enlarge, and improve the largest existing
publicly -owned convention center In the county;
(b) Cne-third of the proceeds 3h311 be used to
construct a new multi-ourpese conventicn/coliseums
exhibition center or the :maxi. -um ccr-ccnents thereof
as funds cermit .n the most populous municipality .n
the county: and
(c) after the completion of anv cre;ect under
paragraph (a) or (b), tax revenues and interest
accrued may be used to acquire, _cnstruct, extend,
enlarge, remodel, repair, improve or maintain one or
more convention centers, stadiums, exhibi•t"on halls,
arenas, coliseums, or auditor_u;
(d) For the purposes of completion of any
project pursuant to this section, tax revenues and
interest accrued may ba used:
1. as collateral, pledged or hypothecated, for
pro,iects authorized by this section, Including bonds
i3sued :n connection therewitn; or
2. as a pledge or capital contribution in
con unction with a cartner3hip, toint venture, or
other business arrangement between a municipality and
one or more business entities for protects authorized
by this section.
(3) ':he governing body of each municipality in a
county .n which a municipal tourist tax is levied may
adopt a resolution prohibiting the levy of the
convention de:•elocment tax within such munacipalitl.
t.:e govern-ng aody adopts such a resolution, t:.e
convention tax shall be levied by the county in all
othi liar areas cf te county except such municipality!;)
provided, no f-inds :ol_ected pursuant to tnis act may
be expended in a :municipality which :has adopted such
a resolution.
(a) Before the county enacts an ordinance
levying and imposing the tax, the county sral: notify
he.govern body of each municipality in which
pro;ect3 are to �:e developed pursuant to paragraphs
(2)(a) or (b). The governing bodies of such
munic.iral.t.es snall designate cr appoint an
authority to administer and disburse such proceeds
and any other related source of .-e revenue. The
members of each sucn authority shall be selected from
the tourism and _ndust—, that noes
business •.pit :`a sucz mun-, c-pal_ty and shall serve at
the pleasure of the governing bedv of such
municipality. The annual budget cf such authority
snall ne sub-ect to aoproval of the governing body of
the runic•nal:ty.
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bublicly=awned convention center in the county and to construct a
convention .:enter sa the county's most populcus municipality.
Counties authorized to _e•r, the tax are those count -es which
overate "under a home rule zharter adcpted pursuant to ss. 13, 11
and 24 of Art. :'ZIi of the Constitution of 1335, as preserred my
Art. 7111, s. 6(e) of the Constitution of 1368." See
S 125.011(1), ?la. Stat. (1383). Dade, Hillsborough, and Monroe
Counties potentially meet this definition, but only Dade County
has adopted a home -rule charter.
Pursuant to section 212.057, Dade County enacted ordinance
83-91, which implements the tax and provides for the collection,
distribution, and application of the revenues. Petitioners, each
of whom owns a hotel or motel or operates tours in Cade County,
sought a deterninaticn that the statute and ordinance were
invalid and unconstitutional. :he trial court entered an order
en;oining the respondents from assessing the tax. Citing Florida
Attorney General Coinion 33-71, the trial court declared the
statute defective on the grounds teat it includes no :mechanism
for tax collection and by implication provides that the revenues
collected will be segregated and paid to municipalities in
contravention of section 212.0, Florida Statutes (1-383).
Further, the trial court found the ordinance to be in
Irreconcilable conflict with section 212.13, Florida Statutes
(1983), because it purports to authorize collection of the tax by
the Dade County tax collector.
Cn appeal, the district court affirmed in part and
reversed in ;art. Whila agreeing with the trial court that the
lax collection portion of the ordinance was _nval-d. the district
court held that section 212.05" and the remainder of the
ordinance are valid and constitutional. he district court found
that because the statute was expressly :Wade a part of chapter
212, which includes a ccmorenensive scheme for the collection,
administration, and enforcement of all taxes imposed by the
chapter, the legislature was not required to pu lish independent
collection mechanisms. .he district court concluded that,
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5ii=suant to chapter 212, the tax ;bust be collected by the
Ubartment of Revenue and ?aid to the state treasurer fcr deposit
into the general revenue fund as mandated by sections Z1Z.13 and
212.20, Florida Statutes i1383). The revenues must then be
returned to the _ounties by future appropriation measures
contemplated by section 215.32, 71or.da Statutes 1383), wh_c..
governs the handling of all revenues paid to the state treasurer.
Cn rehearing, the district court directed that the .•ands
collected pursuant to the ordinance be paid to the :enactment of
Revenue.
.he district court farther rejected the petitioners'
assertions that the statute concerns a prohibited subject and
violates equal protection guarantees, due process requirements,
and uniform taxation provisions, noting tat this :curt •apheld
against constitutional attack a statute employing il=c st
identical language in :41.3mi :olphins. Ltd. v. Xetrcpolitan lade
Court,,*, 394 So. 2d 381 (?la. 1331). :n upholding the statute's
constitutionality, the district court also refused to accept the
petitioners' arqument that section 212.057 is a special law or
general law c 1_cal application _implemented without notice or
refererduz, :indinq _.-at the statute satisfies t:a criteria for a
general law enunciated by this :cur_ in :eoar _m.ent of Lecal
Affairs •r. Sanford-Crlando Xennel Club. Inc., 434 So. 2d 379
(?la. 1383). The district :our: pointed out that _ a three
counties potentially eligible to implement the tax crave
substantial tourist -oriented economies, and they have
concentrated on developing _acslit_es that rzll attract
convention tourists in crier to improve their tcur_st industries.
Voting that "(wJhen a classification is made the _agis_ature
in the enactment of general laws, the presumption is in favor of
the classi=icat:on's reasonableness," the district court quoted a
portion of this Court's deci3.on in Lewis v. Mathis, 345 So. 2d
1066, 1068 (Fla. 1977):
(112 any state of :acts can reasonably be
conceived that will sustain the
classlficatian atteumpted by the
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CITY OP .4Z.A.tI, Respondent -
(My 23, IOSSI
14=CNALD, J.
'ft have :or review City of titiami 7. Bobbie, 454 3o.2d 506
(Fla_ 3d'Ch 1384) , because. of ecnflict with. Blaekhawk heating s
Plumbing Co. •r. :ata :ease Financial aro., 302 3o.2d 404 (Fla.
1974). we have ;urlsd-cticn. A __. 7, S 3(b)'3), Fla. Const. We
quash the d_str_..t _cu.: 3 �-ecis.Cn.
:us to t_fta professional _cotbal: players' strike :a 1382,
the :Miami 7olpn�as aid not play the contracted number of ;awes iz
tha City -owned Zraage Bowl. :':a 01 Miami sued to _0llect
rent :or the flames not played and received a au.=ary ;*-dement zn
the issue of _:abl-- ty. Tr" -a:- was sec to deter=-ns to =ouat of
damages, but prior to trial the par-tLas reached a ?rocosed
sett,.'amant, and tte =:al was =ancel_ad. 3oc,=er.ts were
Prepared, tut 3 discord )rose --otween t:a=ar._es as to a
provision is the 3ettleaent. he :art -as agreed, tas_cally, that
the :olphias •ail_ play an extra -ame :a `.atn _38s and 1386, but,
it sit -her extra ;amp is not played ".or any reason" the 2olth_ns
will pay $30,J00 per =ame. he ___,-,al zontract excuses the
:olrh:ns from _ne _eat ool_?at_cn if any o! _na %:.ne scheduled
tames are not played aue to an "Act o: :,od."
The ]ol;n-is contend they also need not pay . e $30,000 Tc
the tenth game to not played duo to as Act of God, The City,
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a
Ilebb&rinq t.11e settlement contract, : ncluded in 3mend.-zaht _o --ha
Act of Gad provision that reYa-res _he Zclphlns to :ay _he
$30,J00 i_ an Act o: 3cd causes _ancellatlon of the tenth game.
i
.he "�alFhlns __lad suit to enforce the settlement 'ut _=r the
amendment to =.e Act of God prov/s1on. :he trial ..curt Eound in
enforceable settlement agreement. he list=ict _our: :eversed,
.`lading the prov131on ;.s dispute to -e an essential 3lement -of
the settlement agreement and that the parties had reaciied no
subeet_re meeting of the minds an to. the agreement's terms.
We have consistently a-ld. that as cb;eet-•re test is used
to determine whetzer a oontract 4-3 enforceable. 31ackhawk (and
cases -ted `..:ere! :j As stated ;.a 31ackhawk:
The maxiag o�- a :ontrsct :!ecend3 not :n _ e
agreement two minds .a .ne .aten_icn, tut
on t:e igreement of two sets of external
Signs --not on --�%.a oartias nav:aq meant the
same thing cut oa theirhavLnq Said -:e same
302 So.2d at 407, ;uotiag Gardz-ar •r. 31slecki 37 So.2d 504, 608
(Fla. 13S7) . .n addition, parties to a cont-ract do not have to
deal wit.: every zonti:gency in order to ^ave an enforceable
contract. lee 3lackhawk.
Settlements, of caur3e, are governed by the Tales for
iatarpretation of contracts. :orson •r. arson, 293 5o.2d 632
(Fla. 4t-h 3CG 1981). additionally, set_-aments are highly
favored and wil' be unforced whenever ;ossible. See Pearson •r.
Ecological 3ciance Cart., .22 e'.2d !': (Sth 2i-. 1975) cart
denied, 42S U.S. 312 (19'S); Jorson.
:a t.'te zase iub ;udiee the disagreement over .e apo!_ca-
tioa of the act of Gad provision to the tenth ;ame was a Ware
contingency. __ was aot, as the dlatrlct court below determined,
an essential a:anent of the contract. he essential =eras of the
settlement are, as :udge :cryenson :mrrsctly States ;.7 ..1s
dissent to the district court's 4-eC1310n, _ at two extra :awes
will be played or 530,000 par •anplayed game will be due: the
.olrhias will _:crease Asir pubic -.ability insurance: and =ae
Oolpnina will defend certain third party :!aims against the 3:.ty.
_ J
t
r
h
Y
y
As to these ter—ms _here was no disaareement. All the 3cc•,.ments
;repared and the .ranscript3 of the _ity cc=usslon meet"-q ire
in accord ca the essential element3. 'herefore, zider 3lackhawk.
_..^.e zartles have 3ald _ :e same thl :q as to _ he essential
a1ement3, and the settlement 3hoci3 be enforced. :n .ha -:.nlikely
event that an Act of iod prevents the tenth game :rom being
played in 1385 or �386 , the : ar_ias can _it_. -ate whether the
Molphias are Labia _`or s30,000 a game at that time.
,he district court improperly relied on Gai.es v. aor—_rsst
3ealtY Management, rnc. , 32Z Se.2d 1037 (F_a_ 3d. OCA 1982J-. Is
5aiaes there waa absolutely ao ob3ectllre evidence to enable the
court to discover the tares of the settlement. .n the present
case, on ::a _ -ner :and, the coot: ^ad -afore .t the __anscri=ts
o= the _cca+iss:on ^eet_nq, a langthy :esolst_on by the _cmmission
3doptl.:g the settlement and stating _t3 terms, a stipulation and
order prepared by the :ity, releases, and letters acknewledgiag
the settlement. 'therefore., we adopt � :dyer JOzyenSO1S' S di33ent.
Accardingly, the decision Of the district Court, 13 Quashed
wltl orders to rsllstate the decision or the trial Court.
:t i3 so ordered.
30YO, C.J., AoK 15, OVER ON, ALL -MM, 3-MMI3 and a'RWW, J.T.,
Concur
:10T %_riiZA=:IG %IC:re;J AND, '.F
s
•
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{
c-'`ItY OF MIAMI. FLORIDA
INttF3-01=FIGE MEMORANDUM
Sergio Pereira 1985 FILE:
City 'Manager
At-tn Albert Ruder, .assistant _ -ity rommission Agelida, 7/18/8S
to the City *Manager
- ""to ert F. Clar'{ City Attornev Status Report on
Chief Deputy City Attorney Disposition of Litigation
•
.�
�\
f
i
ItITY OF MIAM1. FLORIDA
i INTER-OFFICS MEMORANDUM
-,-: BILE
111h Ftonor 3ai. _ p r
.layor and Merlb_rs Ju17 :, 1985 =$4-b
: £ th.e 2'it;• "Commission
-� JB E: ruelles t ��ity o£ Miami
/ Circuit Court No. 34-15873
La"`ia ���v�uLlhert
:•1 4EFERE—irE.s Request for Direction
i ty Attorney
E`iCLSSURES.
Fernando Arguelles and Lillian Arguelles, his wife, filed a
lawsuit against the City of Miami seeking ,honey dama:aes and
alleging they were stopped, arrested, abusr'd, tick:ted,
I.r.-risoned, and prosecuted falsely and maliciously by the City of
- Miami.
L�n Febr%jar•i 19, 1933, a City of v ia.lii Police "ergeant
observed a vehicle weaving, swerving and erratically changing
lanes of traffic. T;pon stopping the vehicle, the driver refused
to speak English and cooperate with the sergeant. Also, it
became apparent to the sergeant that the driver was intoxicated.
The sergeant asked for the D.U.I. unit working in the area to
conduct cha pertinent investigations and tests to der -ermine if
the dr17?r was intoxicated. although the officer that conducted
the in•lestigation and the roadside sobriety test had not
witnessed the erratic driving, he determined that the driver was
,:nuer the influence and proceeded to arrest him. The wife became
enraged and interfered with the arrest of her husband.
Conseuuently, she was also arrested.
Plaintiffs' attorney demanded $50,000.00 in settlement and
the same was denied. The case went to trial on July 1, 1985 and
lasteu two days. The evidence presented at trial established
that the arresting police officer had, among other things,
technically cNrjured himself by swearing to fads in the A -form
which were not witnessed by him. Furthermore, the officer openly
admitted to perjury in the recording tapes obtained as the result
of an investigation conducted by the Internal Security Division
on Plaintiffs' complaint of false arrest and physical and verbal
abuse. Also, in the same tapes, the officer admits to using
abusive and profane language against Mrs. Arguelles, for which he
was disciplined by the Department.
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