LTC 337 - 2024 Court Victory in Juan A. Garcia, Jr. v. Cuyahoga Wrecking Corp.MIAMI BEACH
OFFICE OF THE CITY ATrORNEY
LTC No
LETTER TO COMMISSION
TO:
FROM :
DATE :
Mayor Steven Meiner and Members of the City Commission
Ricardo J. DoPico, city Attorney(n)
August 7, 2024
SUBJECT:Court Victory in Juan A. Garcia, Jr. v. Cuyahoga Wrecking Corp.
This letter is a supplement to LTC No. 099-2024, which reported the City’s victory in
obtaining final summary judgment in its favor on indemnity claims brought by the Florida
Department of Environmental Protection (“FDEP”) and worth potentially millions of
dollars
Following the entry of final judgment for the City, FDEP retained a new law firm to
challenge that ruling via a motion for rehearing (the “Motion”). In the Motion, FDEP raised
several new arguments in addition to rearguing the points the Court had already
considered. Following an hour-long oral argument on the Motion, Judge Vivianne Del Rio
asked the parties to submit competing proposed orders. On August 6, 2024, after
consideration of both parties’ proposed orders, Judge Del Rio entered the order submitted
by the City, denying the motion for rehearing and upholding the final judgment for the
City
The City’s opposition to rehearing was litigated entirely in-house by First Assistant City
Attorney Henry J. Hunnefeld and Senior Assistant City Attorney Freddi Mack, as was the
underlying summary judgment motion.
A copy of the Court’s Order is attached. FDEP still has the opportunity to appeal.
As always, please feel free to contact me or Rob Rosenwald for further information about
this or any City litigation matter.
RJ D/FM/ag
337 - 2024
IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL
CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA
CASE NO: 1991-026591-CA-01
SECTION: CA05
JUDGE: Vivianne Del Rio
Garcia, Juan A (Jr)
Plaintiff(s)
vs.
Cuyahoga Wrecking Corp
Defendant(s)
____________________________/
ORDER DENYING THIRD-PARTY PLAINTIFF FDEP'S MOTION FOR REHEARING
AS TO THE COURT'S ORDER GRANTING CITY OF MIAMI BEACH'S MOTION FOR
FINAL SUMMARY JUDGMENT (D.E. 114) AND FINAL JUDGMENT IN FAVOR OF
THE CITY OF MIAMI BEACH (D.E. 115)
THIS CAUSE came before the Court on Third-Party Plaintiff, FLORIDA DEPARTMENT
OF ENVIRONMENTAL PROTECTION’s (“FDEP”) Motion for Rehearing as to the Court’s
Order Granting City of Miami Beach’s Motion for Final Summary Judgment [D.E. 114] and Final
Judgment in Favor of the City of Miami Beach [D.E. 115] (D.E. 118) (the “Rehearing Motion”).
THE COURT has considered the Rehearing Motion, the response filed by Third-Party
Defendant, CITY OF MIAMI BEACH (“City”) (D.E. 122) (the “Response”), and pertinent parts of
the record. The Court also heard argument of counsel on July 17, 2024 (see D.E. 120), and
requested the submission of competing proposed orders.
Being duly advised in the premises, it is ORDERED AND ADJUDGED that the Rehearing
Motion is DENIED for the reasons set forth below.
STANDARD ON REHEARING; EFFECT OF “NEW” SUMMARY JUDGMENT
RULE
I.
The Rehearing Motion is governed by Florida Rule of Civil Procedure 1.530(a), which
Case No: 1991-026591-CA-01 Page 1 of 9
Filing # 204119609 E-Filed 08/06/2024 11:59:06 AM
applies to rehearing of final summary judgments. The purpose of the rule “is to give the trial court
an opportunity to consider matters which it overlooked or failed to consider” and “to correct any
error if it becomes convinced that it has erred.” Carollo v. Carollo, 920 So. 2d 16, 19 (Fla. 3d DCA
2004) (citing Pingree v. Quaintance, 394 So. 2d 161 (Fla. 1st DCA 1981) and Elmore v. Palmer
First Nat’l Bank & Trust Co. of Sarasota, 221 So. 2d 164, 166 (Fla. 2d DCA 1969)).
The Court has broad discretion to either grant or deny a rehearing. See, e.g., Fision Corp. v.
Frueh, 369 So. 3d 1211, 1217 (Fla. 2d DCA 2023). “Nevertheless, trial courts need not grant
rehearing when the movant raises a new argument that could have, and should have, been raised
prior to the entry of summary judgment.” Id. This principle ensures that the judicial process is not
unduly delayed by allowing a disappointed party a second bite at the apple by introducing new
legal theories or arguments after the Court has already rejected the arguments raised in response to
the summary judgment motion. See id. at 1217–18 (holding that trial court did not abuse its
discretion in denying motion for rehearing that presented new arguments not raised during
summary judgment briefings; noting that “[t]he trial court was under no obligation to permit
rehearing on this tardy claim”); see also Inman v. Club on Sailboat Key, Inc., 342 So. 2d 1069,
1070 (Fla. 3d DCA 1977) (affirming denial of motion for rehearing where appellant attempted to
raise new issues for the first time after summary judgment); Bank of Am., N.A. v. Bank of N.Y.
Mellon, 338 So. 3d 338, 341 n.2 (Fla. 3d DCA 2022) (“A trial court does not abuse its discretion in
denying a motion for reconsideration or rehearing which raises an issue that could have, but wasn’t,
raised in the initial motion or at the initial hearing.”).
The impropriety of injecting new arguments in a motion for rehearing—when those
arguments could have been, but were not, lodged in the summary judgment briefings—is bolstered
by the relatively “new” summary judgment procedures in Florida (effective 2021). The “new”
summary judgment rules mirror the standards under Federal Rule of Civil Procedure 56. See In re:
Amendments to Florida Rule of Civil Procedure 1.510, 309 So. 3d 192 (Fla. 2020). A nonmovant
Case No: 1991-026591-CA-01 Page 2 of 9
must make all arguments—factual and legal—in opposition to summary judgment no later than 20
days before the hearing. Fla. R. Civ. P. 1.510(c)(5). If a nonmovant fails to timely assert a factual
argument, the court is authorized to consider the fact(s) undisputed and grant summary judgment.
Fla. R. Civ. P. 1.510(e)(3); e.g., Full Pro Restoration v. Citizens Prop. Ins. Corp., 373 So. 3d 1189,
1194 (Fla. 3d DCA 2023). So too with purely legal arguments. See, e.g., State Farm Mut. Auto. Ins.
Co. v. Advanced X-Ray Analysis, Inc., 368 So. 3d 1049, 1050–51 (Fla. 3d DCA 2023) (affirming
summary judgment where response was filed only twelve days before continued summary
judgment hearing and noting that the timing requirements in Rule 1.510 “are not advisory and are
meant to provide time limits to raise arguments and present evidence in order to prevent
gamesmanship, unfair surprise and prejudice”). To allow a party who has had summary judgment
entered against it to raise new arguments in a motion for rehearing would run counter to both the
letter and the spirit of the amendments to Rule 1.510.
With these standards in mind, the Court turns to the arguments raised in the Motion.
IN THE EXERCISE OF ITS DISCRETION, THE COURT DENIES REHEARINGII.
Insofar as the Motion simply reargues the same points FDEP asserted in its response (D.E.
110) to the City’s motion for final summary judgment (D.E. 95), the Court is not convinced that it
overlooked, failed to consider, or erred on any ground in its Order (D.E. 114) or Final Judgment
(D.E. 115). And to the extent the Motion asserts new arguments, the Court declines to grant
rehearing on those bases. See supra Section I.
Waiver/LachesA.
FDEP’s Unpled-Affirmative-Defense Argument. FDEP argues, for the first time in its
Rehearing Motion, that the Court should never have used the term “laches” in its Order because
laches was not specifically pled as an affirmative defense in the City’s answer to the third-party
complaint. Reh’g Mot. at 8–10.
Case No: 1991-026591-CA-01 Page 3 of 9
At the outset, this Court could, and does, summarily reject this argument because FDEP did
not raise this “unpled affirmative defense” issue in its response to the summary judgment motion.
In fact, FDEP actively litigated the merits of laches. See (D.E. 110) at 21–22. The defense was
therefore tried by consent. Compare Deer Brooke S. Homeowners Ass’n of Polk Cnty., Inc. v.
Battles, 304 So. 3d 40, 42 (Fla. 2d DCA 2020) (recognizing that an affirmative defense can be tried
by consent, but finding no consent on the record) with Dep’t of Revenue of State of Fla. v. Vanjaria
Enters., Inc., 675 So. 2d 252, 254–55 (Fla. 5th DCA 1996) (holding that the defendant impliedly
consented to a determination based on a rule-promulgation issue even though the issue was not
expressly raised in the complaint, where the defendant failed to object to the introduction of
evidence on that issue at the summary judgment stage and beyond); see also Reddy v. Zurita, 172
So. 3d 481, 484–85 (Fla. 5th DCA 2015) (affirming summary judgment despite the argument on
appeal that the summary judgment basis was not framed by the pleadings: “Because Appellants
failed to argue that Appellee requested the trial court grant summary judgment on issues not framed
by the pleadings, Appellant’s argument that summary judgment was improper fails.”).
Moreover, there is no question that waiver was asserted as the City’s nineteenth affirmative
defense. See Answer to Third-Party Complaint (D.E. 57). Waiver and laches are functionally the
same under this set of facts. Both waiver and laches have the two common core elements of (1)
extreme delay or lack of diligence by one party (2) to the detriment of the opposing party who has
been put off guard by the delay. Compare McCray v. State, 699 So. 2d 1366, 1368 (Fla. 1997)
(elements of laches) with Popular Bank of Fla. v. R.C. Asesores Financieros, C.A., 797 So. 2d 614,
619 (Fla. 3d DCA 2001) (elements of waiver); see also Arbogast v. Bryan, 393 So. 2d 606, 607–09
(Fla. 4th DCA 1981) (six-year delay in asserting an objection amounted to waiver); Colonial Penn
Cmtys., Inc. v. Crosley, 443 So. 2d 1030 (Fla. 5th DCA 1983) (refraining from filing suit for six
years amounted to waiver). The City’s defenses in the third-party action from the outset have put
FDEP on notice that the delay in filing its indemnity claims and resulting prejudice to the City
would be a central issue.
Case No: 1991-026591-CA-01 Page 4 of 9
To accept FDEP’s unpled-affirmative-defense theory would be to elevate form over
substance—something the District Courts of Appeal have cautioned against. See, e.g., Est. of Willis
v. Gaffney, 677 So. 2d 949, 951 (Fla. 2d DCA 1996) (“[A] pleading will be considered what it is in
substance, even though mislabeled.” (quoting Sodikoff v. Allen Parker Co., 202 So. 2d 4, 6 (Fla. 3d
DCA 1967))); 951 Harbor Drive, LLC v. SD Constr., LLC, --- So. 3d ----, 2024 WL 3049527, at *5
(Fla. 3d DCA June 19, 2024) (noting that “[i]t’s true of course that in our analysis we look not to
the label or title of an affirmative defense . . . but to the substance of the affirmative defense, to
avoid elevating form over substance”). The Court declines to do so.
FDEP’s Accrual Argument. FDEP repeats its argument that, even though it knew about its
potential indemnity claims at least as early as May 30, 1996 (if not earlier), it could not possibly
have waived its right to file the third-party complaint in 2020 because the indemnity causes of
action still have not accrued to this day. Reh’g Mot. at 10–13. The Court already rejected this
argument, see Order (D.E. 114) at 8–9, and is not persuaded by FDEP’s claims of error now.
As previously stated in the Order, “indemnity claims are a rare breed under Florida law:
they can be filed even before they have accrued.” Id. at 9; see also, e.g., Rea v. Barton Protective
Servs., Inc., 660 So. 2d 772, 773 (Fla. 4th DCA 1995) (authorizing indemnification claims to be
filed “prior to the resolution of the defendant’s liability to the plaintiff”), cited with approval by
Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 643–44 (Fla. 1999); see also Mims
Crane Serv., Inc. v. Insley Mfg. Corp., 226 So. 2d 836, 840–42 (Fla. 2d DCA 1969) (explaining that
the reason for permitting an indemnity claim to be filed together with the underlying action is to
avoid expense and delay); Jerome Naglebush, Inc. v. Frank J. Rooney, Inc., 342 So. 2d 121, 122
(Fla. 3d DCA 1977) (same). FDEP knows this rule to be true: it is why FDEP eventually filed the
third-party complaint in 2020, despite the indemnification claims still not having accrued because
no judgment has been entered against FDEP, more than 33 years after the underlying lawsuit was
commenced. This delay in accrual is because the case has languished, which is not the City’s fault.
Case No: 1991-026591-CA-01 Page 5 of 9
Because of the rule allowing indemnification claims to be filed prior to accrual, FDEP
indisputably had the right to file its claims against the City in 1996, or 1997, or 1998, 1999, 2000,
2001, and so on. Instead, FDEP sat on its rights for more than two decades before filing suit. This
extreme passage of time, in the face of FDEP’s known right to bring its indemnity claim (as
evidenced by the May 30, 1996 demand letter), amounted to waiver/laches.
FDEP’s Lack-of-Prejudice Argument. In its Rehearing Motion, FDEP also asserts—for the
very first time—that the City did not establish prejudice by the roughly 23-year delay in FDEP’s
filing suit because (1) the City could have taken more discovery in the third-party action and (2) the
City’s sole evidence of prejudice is a “self-serving” affidavit from the City’s Risk Management
Claims Coordinator, Robert Aragon. Reh’g Mot. at 13–14. Notably, FDEP did not press this
argument at the July 17th hearing. The Court rejects the argument in any event.
First, this argument was also not advanced in response to the City’s motion for summary
judgment, so the Court need not consider it. See supra Section I.
Second, and moreover, the Aragon affidavit is competent evidence to show prejudice
suffered by the City. The affidavit establishes that (1) the City’s file was closed on January 23,
2002 (after the City had settled with the underlying plaintiffs in 1997 and paid $1.25 million
pursuant to a claims bill in 1998); (2) the City’s outside counsel’s firm—Zack Kosnitzky P.A. a/k/a
Zack Hanzman Ponce Tucker, P.A. a/k/a Zack Sparber et al.—no longer exists; (3) the City
believes in good faith that its litigation file was destroyed consistent with state-law document
retention policies. The affidavit was uncontroverted. See Fla. R. Civ. P. 1.510(c)(5), (e)(2). And
while the affidavit may be “self-serving,” even a self-serving affidavit can support summary
judgment if based on personal knowledge (something FDEP does not dispute). Garbark v. Gayle,
312 So. 3d 1286, 1288–89 (Fla. 1st DCA 2021); Progressive Express Ins. Co. v. Camillo, 80 So. 3d
394, 399–400 (Fla. 4th DCA 2012).
Case No: 1991-026591-CA-01 Page 6 of 9
Third, common sense dictates that prejudice will occur when a party concludes an
underlying suit (here, pursuant to the Consent Final Judgment) but then faces an indemnity suit
arising from the same set of facts more than 20 years later. See McCray, 699 So. 2d at 1368 (“As
time goes by, records are destroyed, essential evidence may become tainted or disappear, memories
of witnesses fade, and witnesses may die or be otherwise unavailable.”).
Sovereign ImmunityB.
The Court’s grant of final summary judgment could stand based on waiver/laches alone.
Rehearing could be denied without any further elaboration.
Nevertheless, the Court reaffirms its rulings on each of the City’s sovereign immunity
arguments. See Order (D.E. 114) at 9–14. Most of FDEP’s Rehearing Motion arguments simply
reargue the same positions the Court already rejected. Compare Reh’g Mot. at 14–25 with (D.E.
110) at 7–18 and Order (D.E. 114) at 10–12, 15–16 nn.2–6.[1] The Court finds that it did not
overlook or misapprehend any component of those rulings.
And in its Rehearing Motion, FDEP did not dispute the merits of the “cap stacking” and
planning-level decision-making rulings. Compare Order (D.E. 114) at 12–14 with Reh’g Mot.
Instead, FDEP raises a new argument that those rulings are “premature” because they have not been
argued in the underlying negligence case. See Reh’g Mot. at 26. This argument could have been
made in response to the City’s summary judgment motion, but FDEP failed to do so. See generally
(D.E. 110). The Court declines to grant rehearing on that basis. See supra Section I.
CONCLUSIONIII.
For the foregoing reasons, the Court DENIES FDEP’s Motion for Rehearing.
[1] At the July 17th hearing, FDEP repeated its belief that the Third District Court of Appeal
already ruled on “cap-stacking,” even though FDEP did not include that argument in its Rehearing
Case No: 1991-026591-CA-01 Page 7 of 9
Motion and even though the Court already distinguished between the Third District’s prior decision
and the different argument the City made in its motion for summary judgment. See Order (D.E.
114) at 16–17 n.7.
DONE and ORDERED in Chambers at Miami-Dade County, Florida on this 6th day of August,
2024.
1991-026591-CA-01 08-06-2024 11:47 AM
Hon. Vivianne Del Rio
CIRCUIT COURT JUDGE
Electronically Signed
No Further Judicial Action Required on THIS MOTION
CLERK TO RECLOSE CASE IF POST JUDGMENT
Electronically Served:
Alexander R Rodriguez, arodriguez@areceslaw.com
Alexander Rodriguez, arodriguez@areceslaw.com
Alexander Rodriguez, mareces@areceslaw.com
Alvaro F Areces, fareces@areceslaw.com
Benjamin Z Braun, benjaminbraun@miamibeachfl.gov
Benjamin Z Braun, sandraperez@miamibeachfl.gov
Benjamin Z Braun, merarimotola@miamibeachfl.gov
Bruce Grant Hermelee, bhermelee@hermeleelaw.com
Bruce Grant Hermelee, rdhermelee@hermeleelaw.com
Bruce Grant Hermelee, eservice@hermeleelaw.com
Diego Machado, dmachado@ktl-law.com
Eduardo Gomez, service@gomezlaw.com
Eduardo Gomez, egomez@gomezlaw.com
Freddi Rebecca Mack, freddimack@miamibeachfl.gov
Freddi Rebecca Mack, merarimotola@miamibeachfl.gov
Freddi Rebecca Mack, sandraperez@miamibeachfl.gov
Henry J Hunnefeld, henryhunnefeld@miamibeachfl.gov
Henry J Hunnefeld, sandraperez@miamibeachfl.gov
Henry J Hunnefeld, merarimotola@miamibeachfl.gov
Joel D. Eaton, jeaton@podhurst.com
Joel D. Eaton, dricker@podhurst.com
John W. Salmon, service2@sd-adr.com
Case No: 1991-026591-CA-01 Page 8 of 9
Mark Fishman, markfishman@miamibeachfl.gov
Mark Fishman, bonniestewart@miamibeachfl.gov
Matias Rafael Dorta, mrd@dortalaw.com
Matias Rafael Dorta, jgonzalez@dortalaw.com
Matias Rafael Dorta, sgutierrez@dortalaw.com
Patrick Alexander Alayon, palayon@alayonlaw.com
Patrick Alexander Alayon, pleadings@alayonlaw.com
Patrick Alexander Alayon, nboix@alayonlaw.com
Richard A. Alayon, pleadings@alayonlaw.com
Richard A. Alayon, ralayon@alayonlaw.com
Robert F. Rosenwald Jr., robertrosenwald@miamibeachfl.gov
Robert F. Rosenwald Jr., miriammerino@miamibeachfl.gov
Robert F. Rosenwald Jr., robertrosenwald@aim.com
Ronald Jay Bernstein, rjb2@miamidade.gov
Ronald Jay Bernstein, judi2@miamidade.gov
Yoe Lopez, yoelopez@miamibeachfl.gov
Yoe Lopez, bonniestewart@miamibeachfl.gov
Physically Served:
Case No: 1991-026591-CA-01 Page 9 of 9