Herbits v. City of Miami

• Decision Date: 04 May 2016
• Docket Number: No. 3D14–2759.,3D14–2759.
• Citation: 197 So.3d 575
• Parties: Stephen HERBITS, Appellant, v. The CITY OF MIAMI, Appellee.
• Court: Florida District Court of Appeals

197 So.3d 575

Stephen HERBITS, Appellant,
v.
The CITY OF MIAMI, Appellee.

No. 3D14–2759.

District Court of Appeal of Florida, Third District.

May 4, 2016.

Dubbin & Kravetz, LLP, and Samuel J. Dubbin, P.A., for appellant.

Victoria Méndez, City Attorney, John A. Greco, Deputy City Attorney, Christopher A. Green, Assistant City Attorney and Forrest L. Andrews, Assistant City Attorney, for appellee.

Before EMAS, FERNANDEZ and SCALES, JJ.

SCALES, J.

Appellant, plaintiff below, Stephen Herbits appeals the trial court's October 13, 2014 order vacating, for lack of jurisdiction, two prior orders entered by the trial court in Herbits's favor—one order granting mandamus relief and one order determining that Appellee, defendant below, City of Miami (the “City”) was required to pay Herbits's attorney's fees. We affirm because the trial court lacked jurisdiction to enter any orders in this case during the pendency of Herbits's appeal of the trial court's December 5, 2013 final order.

I. Facts and Procedural Background

On June 7, 2013, Herbits, through his counsel, served the City with a public records request (the “June 7th Request”) pursuant to chapter 119 of the Florida Statutes. Herbits's June 7th Request sought copies of public records regarding a proposed development on Watson Island.

On July 2, 2013, Herbits's filed a chapter 119 lawsuit against the City, alleging that the City had violated Florida's Public Records Law by failing to timely provide him the records that had been requested in the June 7th Request. Herbits's lawsuit also sought an expedited hearing pursuant to section 119.11(1) of the Florida Statutes.

On or about July 12, 2013, the City produced records that the City asserted were responsive to the June 7th Request.

On July 19, 2013, the trial court held the expedited hearing, and, without expressly determining whether the City had complied with Herbits's public records request, entered an order that retained jurisdiction to determine, presumably at a later date: (i) the City's compliance with chapter 119, and (ii) whether Herbits was entitled to attorney's fees pursuant to section 119.12 of the Florida Statutes.

On October 10, 2013, Herbits filed a motion in the trial court captioned, “Plaintiff's Motion for Attorney's Fees and Costs Pursuant to Section 119.12(1), Florida Statutes and Other Relief” (“Herbits's Motion”).

Herbits's Motion alleged, among other things, that: (i) the records the City had produced, in July 2013, were not fully-compliant with the June 7th Request; (ii) the City produced the records only after Herbits was forced to file the lawsuit; and (iii) Herbits was entitled to attorney's fees for the City's non-compliance with chapter 119. Herbits's Motion also requested that the trial court retain jurisdiction over the case “... to ensure the City fully complies with Chapter 119 ...”.

The City filed a response to Herbits's Motion, and, on November 8, 2013, the trial court conducted an evidentiary hearing on Herbits's Motion. On December 5, 2013, the trial court entered an order captioned “Order Denying Plaintiff's Motion for Attorney's Fees and Costs” (the “December Order”), in which the trial court expressly held that the City had substantially, and timely, complied with the June 7th Request. The trial court also determined that Herbits was not entitled to attorney's fees. Nowhere in the December

197 So.3d 577

Order does the trial court purport to retain any further jurisdiction of the case.

Herbits filed a motion for reconsideration of the trial court's December Order, which the trial court denied on December 24, 2013.

On January 2, 2014, Herbits timely appealed the December Order to this Court (case number 3D14–20). In his notice of appeal, Herbits characterized the trial court's December Order as a “final order.” The parties briefed this Court on the appeal, conducted oral argument on March 25, 2015, and, on May 13, 2015, this Court issued its Opinion affirming the trial court's December Order. Our Mandate was issued on May 29, 2015.

Approximately two weeks after Herbits had filed his notice of appeal seeking appellate review of the trial court's December Order, Herbits, again through counsel, served the City with another public records request on January 14, 2014 (the “January 14th Request”). In the January 14th Request, Herbits sought copies of additional documents from the City related to the Watson Island project. The January 14th Request specifically identified previous public records requests to which, Herbits claims, the City had not adequately responded.

Then, on March 19, 2014, while Herbits's appeal of the trial court's December Order was still pending in this Court,...