Cody v. Colonial Imaging Products & Service, 98-1221
| Decision Date | 02 October 1998 |
| Docket Number | No. 98-1221,98-1221 |
| Parties | 23 Fla. L. Weekly D2236 James CODY and Debbie Cody, Petitioners, v. COLONIAL IMAGING PRODUCTS & SERVICE, et al., Respondents. |
| Court | Florida District Court of Appeals |
David B. Falstad and Richard E. Dunegan of Gurney & Handley, P.A., Orlando, for Petitioners.
Marc P. Ossinsky, Winter Park, for Respondent Colonial Imaging Products & Service.
Keith A. Graham of Marchena & Graham, P.A., Orlando, for Respondent Fatima Calkins.
Petitioners, James Cody and Debbie Cody (hereinafter "Cody"), seek certiorari review of orders awarding attorney fees in favor of respondents and staying litigation until the attorney fees are paid. The underlying action involves respondent corporation, Colonial Imaging Products and Service ("Colonial"), and its officers, Cody and respondents Fatima Calkins and David Calkins ("Calkins"), who are deadlocked in the management of the corporation's affairs.
Cody filed a complaint against Colonial and Calkins for dissolution of corporation and appointment of a receiver. Calkins served an answer and counterclaim against Cody for breach of fiduciary duty. Cody voluntarily dismissed the complaint for dissolution of corporation, and served an answer and "counterclaim" to Calkins' counterclaim. Calkins and Colonial moved for attorney fees and costs. After a hearing, the court determined that Colonial and Calkins were entitled to attorneys fees for defending the first action brought by Cody, which was later voluntarily dismissed. The court found that Cody's subsequent "counterclaim" to the Calkins' counterclaim was improper and unauthorized under the civil rules of procedure. The court also found that Cody's "counterclaim" was based on the same claims raised by the initial complaint because it attempted to establish Cody's majority interest in Colonial and alleged that Calkins had breached their fiduciary duty and attempted to destroy Colonial. The court ordered Cody to pay Calkins the amount of $6,869 for attorney fees and $755.30 for costs, for a total of $7,624.30. The court ordered Cody to pay Colonial the amount of $1,962.37 for attorney fees. The court further ordered that Cody's counterclaim and pending motions would be stayed until Cody complied with the terms of the order and made payment.
Section 607.1431(4), Florida Statutes (1997) reads as follows:
If the court determines that any party has commenced, continued, or participated in an action under 607.1430 (seeking judicial dissolution of a corporation) and has acted arbitrarily, frivolously, vexatiously, or not in good faith, the court may in its discretion award attorney's fees and other reasonable expenses to the other parties to the action...
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...or denial is also unappealable. The Fifth District has apparently not directly ruled on this issue. See Cody v. Colonial Imaging Products & Service, 717 So.2d 1120 (Fla. 5th DCA 1998). However, in Hatch v. Dance, 464 So.2d 713 (Fla. 4th DCA 1985) and Department of Environmental Protection v......