Walker v. Cash Register Auto Ins.

• Decision Date: 22 December 2006
• Docket Number: No. 1D05-4321.,1D05-4321.
• Citation: 946 So.2d 66
• Parties: Gabriel Dean WALKER, individually and as guardian for his minor child Gabriel Alexander Walker, Appellant, v. CASH REGISTER AUTO INSURANCE OF LEON COUNTY, INC., Appellee.
• Court: Florida District Court of Appeals

946 So.2d 66

Gabriel Dean WALKER, individually and as guardian for his minor child Gabriel Alexander Walker, Appellant, v. CASH REGISTER AUTO INSURANCE OF LEON COUNTY, INC., Appellee.

No. 1D05-4321.

District Court of Appeal of Florida, First District.

December 22, 2006.

James Garrity of Marie A. Mattox, P.A., Tallahassee, for Appellant.

Patrick A. Raley and Jed Berman of Infantino and Berman, Winter Park, for Appellee.

VAN NORTWICK, J.

Gabriel Dean Walker appeals an order awarding attorney's fees and costs to Cash Register Auto Insurance of Leon County, Inc., pursuant to section 57.105, Florida Statutes, and 42 U.S.C.1988(c). For the reasons that follow, we reverse in part, affirm in part, and certify conflict with Maxwell Building Corp. v. Euro Concepts, LLC, 874 So.2d 709 (Fla. 4th DCA 2004).

Factual and Procedural Background

Walker filed suit against Cash Register Auto Insurance, Inc. (Cash Register), after he was denied permission to take his two-year-old son into Cash Register's restroom. Walker was at the Cash Register offices to purchase insurance, and, when he asked for access to the restroom, he was told that members of the public, including customers, were not permitted access to the restroom. Walker was told to find a restroom at a neighboring business. Before Walker could take his son to another location, his son urinated in his pants. Walker, who is an African-American, filed suit on the authority of 42 U.S.C. § 1981 seeking damages for "racial prejudice." According to the complaint, Walker and his son "were denied the use of the Defendant's restroom facilities that white customers of Defendant were permitted to use. Accordingly, Plaintiffs have been denied the equal benefit of facilities afforded to and enjoyed by white citizens." Walker sought damages for his son and himself for "mental anguish, pain and suffering, bodily injury, loss of capacity for the enjoyment of life, embarrassment, humiliation, loss of reputation, lost opportunities, and the loss of other emoluments."

The matter proceeded to a jury trial. At trial, Walker testified as to being denied the use of the restroom on behalf of his young son and the embarrassment he suffered as a result. He testified that his son was hesitant to use a public restroom thereafter. Walker's teenaged daughter, who was with her father at Cash Register when access to the restroom was denied, also testified that her father was pained and embarrassed by the incident. Walker called another African-American, Ivery Guiton, who testified that, while he was allowed to use the restroom at Cash Register, he heard an employee make a derogatory remark under her breath when restroom access was requested. Another witness for the plaintiff, a former employee for Cash Register, testified that a decision was made by the office manager to restrict access to the business' restroom to employees only, but she saw this manager give access to a white customer once. Another former employee, Margo Nicholson, who worked at Cash Register for approximately five years, testified that she once saw a white customer being granted access to the restroom.

The executive manager of Cash Register testified that several employees came to him with the request of closing the restroom to members of the public because it became too arduous to keep the lone restroom clean during the day given the volume of customers. There was no written policy adopted. Instead, the door to the restroom was locked, and the officer manager and another employee were given keys. The employees were told that should someone other than an employee seek access to the restroom, he or she was to be told that the business did not have a public restroom. The executive manager admitted that it was probably true that employees would decide under what circumstance an exception would be made.

The office manager testified that the request to close the restroom to the public was made by several Cash Register employees, and thereafter, white as well as black customers were denied access. She agreed, though, that on an individual basis an employee could make an exception.

Walker called another former employee of Cash Register who testified that during her employment she saw some white customers being granted access to the restroom. She came to work at Cash Register approximately a year and half after Walker was denied access to the restroom.

At the close of the plaintiff's case, the trial court granted a directed verdict as to the claim made on behalf of Walker's son. The claim of the senior Walker was to be submitted to the jury. The defense called a former employee who testified that the "general policy" at Cash Register was "just to try to limit the use of customers using the bathroom, primarily because they abused their right and made a very large mess of a very, very small room, and made it very difficult for employees—all of which that was to be used for primarily— difficult to maintain." The witness added that Cash Register could serve between 100 and 200 people per day. While at Cash Register, he granted an exception to the restroom policy when he allowed an African-American access; she was approximately eight months pregnant and had been waiting in the Cash Register offices a long time.

The jury returned a verdict in favor of the defendant. Thereafter, the trial court took up the motion for attorney's fees and costs filed by Cash Register. By this motion Cash Register sought fees as a prevailing party under 42 U.S.C. § 1988(b), which authorizes fees to the prevailing party in an action filed pursuant to 42 U.S.C. § 1981. Cash Register also sought to recover attorney's fees and costs from Walker as well as plaintiffs' counsel pursuant to section 57.105(1), Florida Statutes.

At the conclusion of the hearing on the motion for attorney's fees and costs, the trial court granted the motion explaining:

I'm going to grant the defendant's motion for costs and fees under two theories. One, under 42 U.S.C.1988, I believe, the prevailing party is entitled to an award of fees. And I don't think that failure to make such a claim in the answer is a bar to awarding the fees. I'm also going to grant 57.105 fees. I do find that that case was utterly frivolous. I think the case was unreasonable. It was without foundation. And quite frankly, I think the case was absurd.

This was a man who was claiming severe mental anguish because his two-year-old son wet his pants after he couldn't go to the bathroom. First of all, that's what two-year-olds do, they wet their pants. If you're taking a two-year-old someplace, you pretty much have to take something with you or make provisions for appropriate stops.

And then during the testimony about these damages he suffered, his daughter was so coached, so obviously coached she couldn't even tell you what humiliation was. She said her father had been completely humiliated by the process, by the circumstance and then had no idea what humiliation meant.

To tell you the truth, this was one of the most absurd cases I've seen. And surely the plaintiff nor his son suffered. They didn't suffer any kind of economic damages. They didn't have any medical expenses, no property damages. They, quite frankly, didn't even have damages for washing that little boy's underwear. So I am going to grant fees under 1988 as well as 57.105.

In its written order, the lower court found that the plaintiff, "and certainly his attorney," knew or should have known that a cause of action for emotional damages was not supported by the material facts. More particularly, the lower court stated in the written order:

Plaintiff's counsel should have known that a claim for damages on behalf of a two year-old child who wet his pants did not present a valid claim for mental anguish. That a two year-old child accompanying a parent on a day of errands could wet his pants is so common in occurrence that an award of damages for such an incident would be patently absurd and not sustainable. A claim for the emotional damages for having to endure the anxiety and emotional trauma of observing your two year-old child wet his pants is not a valid claim. That is what two year-old's do: When it's time to go, they go. A jury of reasonable people could not have found that a parent would be humiliated by such an occurrence.

On appeal, Walker argues that an award of attorney's fees and costs under section 57.105(1) is improper because Cash Register failed to give 21 days' notice as required by section 57.105(4), which provides that a

motion by a party seeking sanctions under this section must be served but may not be filed or presented to the court unless, within 20 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.

Further, Walker asserts on appeal that attorney's fees should not have been awarded because the instant case was not frivolous, irrespective of the trial court's personal views about the case. Finally, Walker argues that, because Cash Register never specifically pled entitlement to fees under 42 U.S.C. § 1988, fees were not awardable in the instant case, citing Stockman v. Downs, 573 So.2d 835 (Fla.1991). He adds that simply losing a civil rights case does not render the case patently frivolous and a civil rights plaintiff is not at risk of owing fees to the opposing party unless the case is patently frivolous. See Christiansburg Garment Co. v. Equal Employment Opportunity Comm'n, 434 U.S. 412, 421, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978). Section 57.105(1)

A trial court's award of section 57.105 fees is reviewed pursuant to an abuse of discretion standard. See Gahn v. Holiday Prop. Bond, Ltd., 826 So.2d 423 (Fla. 2d DCA 2002). Generally speaking, attorney's fees statutes should be strictly construed. See, e.g., Dade County v. Pena, 664 So.2d 959 (Fla.1995).

Section 57.105 authorizes an award of attorney's fees to be paid in...