December 2019 Litigation Report
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OFFICE OF THE CITY ATTORNEY: MEMORANDUM
In order to keep you informed of the status of pending litigation matters currently handled by the Office of the City Attorney, provided below is a summary of significant results and new cases in December 2019, and other important updates.
SIGNIFICANT RESULTS AND UPDATES:
APPEAL (WHISTLEBLOWER CLAIM): Igwe v. City of Miami, Third District Court of Appeal, Case No. 3D18-2147, Case No.: 18-181-AP-01 (KLM). In this matter, Plaintiff, the former Independent Auditor General of the City, claimed that he suffered "adverse employment action", i.e., that his four (4) year contract was not renewed, as a result of his "protected behavior" under s. 112.3187(7), F.S., to wit: issuing audit reports critical of City financial decisions, his cooperation with an SEC in an investigation of the City, and in other respects, resulting in lost wages, employee benefits and other damages. Following a jury trial on the matter, the jury entered a verdict in favor of Igwe, which awarded damages in the amount of $931,587.70. The Court granted the City's motion to set aside the verdict based on failure to exhaust administrative remedies, and entered a final judgment in favor of the City. Igwe appealed. Following oral argument, the Court issued a written opinion affirming the final judgment.
MIAMI FOREVER BOND VALIDATION: City of Miami v. State of Florida, et al., Miami- Dade County Circuit Court, Case No. 19-29540 CA 01 (RJJ/XEA/RFA/outside counsel). As required by Chapter 75, Florida Statutes, an action for the validation of the Miami Forever Bonds and the associated projects, programs, and issuances was filed in court on September 27, 2019 for an aggregate principal amount not to exceed $400 million. The Court issued an Order to Show Cause as to why the City’s prayer for relief should or should not be granted. The City appeared before the Honorable Carlos Guzman on December 16, 2019 and upon the conclusion of the hearing, Judge Guzman found that the Miami Forever Bonds served a paramount public purpose and issued an order validating the Miami Forever Bonds in an aggregate principal amount not to exceed $400 million.
APPEAL (SOLID WASTE FRANCHISE): Eastern Waste Systems, Inc. v. City of Miami, Third District Court of Appeal, Case No. 3D18-2498 (JAG). In this case, the Plaintiff, a City of Miami commercial solid waste franchisee, sued the City for a declaratory judgment and damages claiming that the City violated procurement ordinances in allowing a third party (Bicon, Inc.) to obtain a franchise agreement. The trial court granted summary judgment, and the Plaintiff appealed. Following oral argument, the Third District Court of Appeal affirmed the case without a written opinion.
HOLIDAY CONSTRUCTION MORATORIUM LITIGATION: New Cingular Wireless PCS, LLC d/b/a AT&T Mobility v. City of Miami, United States District Court, Southern District of Florida, Case No. 19-CV-24939-COOKE/GOODMAN (HJH/EJE/XEA). On September 6, 2019, the City of Miami’s Department of Resilience and Public Works advised all utility companies and contractors that the City would be implementing its annual Holiday Construction Moratorium. The Holiday Construction Moratorium went into effect on November 26, 2019 at 6:00 PM and would terminate on January 2, 2020 at 8:00 AM. On November 14, 2019, AT&T requested a waiver from the Holiday Construction Moratorium on rights-of-way operated and controlled by FDOT and that the City’s annual Holiday Moratorium was illegal pursuant to the Federal Communications Act and Florida’s Small Cell Statute. The City advised AT&T that it did not intend to issue a waiver, that FDOT has exclusive jurisdiction over FDOT’s rights-of-way, and that the City is authorized under the aforementioned laws to institute its Holiday Construction Moratorium. On November 27, 2019, AT&T filed a Complaint against the City. On December 2, 2019, AT&T filed its Renewed Expedited Motion for Preliminary Injunction and the Court issued an Order Setting an Expedited Hearing on AT&T’s Expedited Motion. Pursuant to the Order, the City was required to file its Response on December 6, 2019 and a hearing was set for December 10, 2019 at 10:30 AM. The City filed a timely Response but, on Monday, December 9, 2019, AT&T requested that the hearing be moved in order to amicably resolve the dispute. The City, after extensive discussions with AT&T, resolved the matter protecting the City’s right to continue to issue Construction Moratorium on rights-of-way within the City and provided AT&T with a substantially reduced amount of construction waivers for critical sites.
LABOR GRIEVANCE: Fraternal Order of Police Lodge No. 20 & Roberto Destephan v. City of Miami, Grievance No. 19-02 (SKP). The Fraternal Order of Police filed a grievance on behalf of former Police Sergeant Roberto Destephan, alleging the City terminated Destephan without “just cause” pursuant to Article 4 of the collective bargaining agreement. The City terminated Destephan after a video surfaced in the media showing Destephan throwing out a Jewish bible and stating that he was “taking out the trash.” Arbitration was held on November 14, 2019. On December 18, 2019, the Arbitrator ruled that the City had just cause to terminate Destephan and upheld the City’s decision to terminate him.
CODE ENFORCEMENT: In December 2019, there were 199 code compliance, nuisance abatement, and ticketing matters before Boards and/or Special Masters.
NEW CASES OPENED IN DECEMBER 2019
APPELLATE MATTER (PUBLIC RECORDS): Robert Owusu, Jr., v. City of Miami, Third District Court of Appeal, Case No. 19-2385 (EJE). This is a public records case, in which the petitioner filed a one-count complaint. The City filed an answer and affirmative defenses, explaining that the petitioner failed to remit payment for the records as required by Florida law. After an initial hearing, the trial court determined that the City did not violate the Public Records Act. The petitioner then sought to depose a representative from the City. The City successfully moved for a protective order. The petitioner has now filed a petition for writ of certiorari in the Third District Court of appeal, through which he seeks to quash that protective order.
CONTRACT DISPUTE (GUSMAN CULTURAL CENTER/OLYMPIA THEATER): Maurice Gusman Cultural Center for the Performing Arts, Inc. v. City of Miami, Miami-Dade County Circuit Court, Case No. 19-33637 CA (01) (CAG/EJE). Plaintiff is a dissolved non-profit corporation which conveyed the Olympia Theater to the City of Miami in 1975 with the restriction that the facility was to be administered by the members of the Department of Off-Street Parking or their successors. Plaintiff alleges the City violated this deed restriction on August 4, 2001, when the City passed a resolution terminating Department of Off-Street Parking's oversight and management of the property. Plaintiff seeks a declaratory judgment cancelling the warranty deed, declaring it void, and quieting title to the Gusman Property.
NEGLIGENCE ACTION (POLICE DOG BITE): Saile Herrera, as natural guardian and mother of Javier Herrera, Jr., a minor child, and Javier Herrera, Sr. v. City of Miami, Miami- Dade County Circuit Court, Case No. 19-33681 CA (02) (CAG). Plaintiffs brought this negligence claim against the City for injuries sustained by their nine-year old son when he was bitten by a police dog which escaped from the home of Officer Mario Urrutia. The Plaintiffs claim bodily injury and severe emotional distress.
NEGLIGENCE ACTION (TRAFFIC CONTROL DEVICE): Rodina Conway v. City of Miami, Miami-Dade County Circuit Court, Case No. 219-14027 CA 01 (15) (JPO). The Plaintiff has filed a negligence action against the City of Miami alleging that on September 23, 2016, the Plaintiff was riding a bicycle and struck by a car at SW 37 Avenue and US 1 due to alleged faulty crosswalk indicator.
NEGLIGENCE ACTION (TRAFFIC CONTROL DEVICE): Flabio Aguilar v. Rafael Fernandez and City of Miami, Miami-Dade County Circuit Court, Case No. 2019-33592 CA 01 (31) (RGD). On July 16, 2018, Plaintiff Flabio Aguilar was involved in a motor vehicle accident with co-defendant Rafael Fernandez at the intersection of SW 22 Road and SW 4th Avenue. Plaintiff sues the City claiming that a tree planted in a swale obstructed view of a stop sign.
NEGLIGENCE ACTION (MOTOR VEHICLE ACCIDENT): Srdan Strmsek v. City of Miami et al., Miami-Dade County Circuit Court, Case No. 19-32158CA 01 (CHG). Plaintiff Srdan Strmsek alleges that on July 18, 2018, he was involved in a motor vehicle accident with City of Miami Police Officer Fabiana Harmon who was negligently operating a vehicle owned by Defendant City of Miami. As a direct and proximate cause of said accident, Plaintiff further alleges he suffered permanent and/or continuing bodily injuries.
NEGLIGENCE ACTION (TRIP AND FALL): Timothy Woods v. Miami-Dade County, City of Miami, et al., Miami Dade County Circuit Court, Case No. 19-25313 CA 01 (JTM). The Plaintiff has filed suit against the County, the City, and a private business owner (gas station) alleging that on December 15, 2017, he tripped and fell on a sidewalk on NW 2nd St. approaching 37th Ave. in Miami-Dade County, Florida, due to the negligence in maintaining said sidewalk, and sustained injures.
NEGLIGENCE ACTION (TRIP AND FALL): Cecilia Caldwell v. City of Miami, Miami Dade County Circuit Court, Case No. 19-34751 CA 01 (JTM). The Plaintiff has filed suit against the City alleging that on April 1, 2019, she tripped and fell on a negligently maintained sidewalk along Memorial Highway between 139th Street and 140th Street, and was injured.
MISCELLANEOUS MATTERS: During the month of December 2019, 4 foreclosure matters; 1 bankruptcy matter; 2 quiet title actions; and 1 workers compensation lien subrogation matter were opened by this Office. The details of those matters are not included in this report. In addition, this report does not include new matters involving pre-litigation claims or investigations. If you wish to be briefed on any or all of these additional matters, a meeting will be coordinated at your convenience.
TRIALS, HEARINGS, AND/OR ORAL ARGUMENTS IN JANUARY & EARLY FEBRUARY 2020
ORAL ARGUMENT – NEGLIGENCE MATTER (TRIP AND FALL): City of Miami v. Lauren Marie Palma, Third District Court of Appeal, Case No. 19-67 (EJE). This appeal arises from a trip-and-fall accident on a sidewalk. The plaintiff initially sued the City and its independent contractor, alleging that both parties were negligent in failing to maintain the sidewalk in a safe condition. The plaintiff eventually settled with the contractor. Afterwards, the plaintiff moved for partial summary judgment on the issue of whether the contractor could be included on the verdict form as a Fabre defendant (a nonparty defendant that the party defendant asserts is wholly or partially responsible for the accident). The trial court granted the motion. At the conclusion of the trial, the jury found that the City was negligent and 80% at fault for the plaintiff’s injuries. The jury also found that the plaintiff was negligent and 20% at fault for her injuries. It awarded the plaintiff $362,964.28 in damages. The City has appealed the final judgment. Oral Argument was held on January 14, 2020.
ARBITRATION – LABOR MATTER: Fraternal Order of Police Lodge No. 20 and Mario Figueroa v. City of Miami, Grievance No. 18-18 (SKP). the FOP filed a grievance on behalf of Mario Figueroa, alleging Figueroa’s termination was without just cause in violation of Article 4 of the FOP’s collective bargaining agreement. The City terminated Figueroa for assaulting a handcuffed suspect when he almost kicked the suspect's head. The incident was caught on camera. Figueroa was acquitted for the related criminal misdemeanor charge. Arbitration was held on January 21, 2020 and the case is now pending a decision by the Arbitrator.
HEARING – PLANNING, ZONING & APPEALS BOARD MATTER: SPV Realty, LC v. City of Miami, Miami Dade County Circuit Court, Case No. 19-32456 CA 01 (KLM). SPV Realty brings a petition for writ of mandamus against the City of Miami, seeking to compel PZAB to hear and vote on a recommendation regarding the comprehensive plan amendment portion of its application for a Special Area Plan. The City has defended by asserting (1) that the petitioner has sued the wrong party (the City cannot force the individual board members to vote) and (2) PZAB cannot be compelled to vote at this time because it has properly requested additional information from the applicant. The Court has scheduled a hearing on the Petition for January 27, 2020.
ORAL ARGUMENT (COCONUT GROVE PLAYHOUSE APPEAL): Miami-Dade County v. City of Miami, Miami-Dade County Circuit Court, Appellate Division, Case No. 19-167 AP (KLM). Miami-Dade County appeals a mayoral veto of a resolution of the City Commission that granted the County's appeal of a decision of the City's Historic and Environmental Preservation Board ("the Board"), which had denied the County a certificate of appropriateness, which was necessary to allow the County to move forward with its proposed plan to redevelop the Coconut Grove Playhouse ("the Playhouse"). The certificate of appropriateness was required in this circumstance because the Playhouse has been designated historic by the City. In response to the County's petition, the City first filed a motion to dismiss, arguing that the mayoral veto is not subject to an appeal to the circuit appellate division under the Florida Rules of Appellate Procedure because the mayoral veto is not a quasi-judicial action. The Court deferred ruling on the City's motion to dismiss, and is carrying that motion with the case. The matter proceeded to merits briefing and the Court has scheduled oral argument for February 3, 2020.