City Of Miami Office Of The City Attorney

Some of the more significant matters litigated during this reporting period aresummarized in the following pages by practice area.Civil RightsINSURANCE COMPANY ACCEPTSCOVERAGE AND DEFENSEJesse Campodonico v. City of Miami, et. al.,Case No. 12-24077-Civ-CookeThe Plaintiff filed suit based on anincident that occurred as he attempted toenter the Ultra Music Festival in downtownMiami. Upon receipt of the lawsuit, thisOffice obtained a copy of the insurancepolicy from Ultra in which the City waslisted as an additional insured “but only withrespect to activities/operations of the namedinsured [Ultra].” After demand andargument from this Office, the insurancecompany, National Casualty Company(“NCC”), agreed to provide a “courtesydefense . . . subject to a full reservation ofrights.” Subsequently, two (2) of the codefendants were convicted of crimes inFederal court.Prior to a mediation, the insurancecompany had sent the City and the officersextensive correspondence regarding theirposition that the acts alleged were notcovered under various theories addressed inthe policy of insurance. Further, theinsurance company wrote to demand that theCity appear at the mediation and make asubstantial contribution to any proposedsettlement. This Office responded byrejecting the legal position of NCC andrefusing to appear at the mediation orparticipate in funding any settlement. NCCeventually agreed to settle all claims withthe Plaintiff for 400,000.00 without anyparticipation or contribution by the City.SUMMARY JUDGMENTGRANTED FOR CITYJulina Belizaire, et. al. v. City of Miami, et.al., Case No. 12-29122 CA 13In this case, Miami police officersresponded to a 911 call reporting a domesticdispute. Gibson Belizaire opened fire at theofficers and the officers returned fire killingthe decedent. The decedent’s mother filed astate battery claim and a federal civil rightsclaim against the City in federal court. TheCourt granted the City's motion forsummary judgment finding that the officers'use of force was reasonable and that the Cityhad no custom or policy of using excessiveforce in cases where officers are being firedupon.Reporting Period October 1, 2013 – August 31, 201411

CITY DISMISSED FROM CASEJames Edward Hoefling, Jr. v. City ofMiami, et. al., Case No. 11-22358-CivLeonardThe Plaintiff was the owner of a 29.7foot sailboard, "Metis O", that was anchoredin the open waters of the City in BiscayneBay. The Plaintiff alleged that he wasissued a Florida Uniform Boating Citationby Police Marine Patrol officers for nothaving a working marine sanitary device(“MSD”) and a separate Code Enforcementviolation. The Plaintiff further alleged thatseveral months later, after he obtained therequired MSD, his vessel was seized byPolice Marine Patrol officers, removed fromthe water, and destroyed, all withoutwarning or notice to him. The Plaintiffalleged that his home and all his worldlypossessions were lost. The Plaintiff asserteda federal maritime/admiralty claim fornegligent and intentional destruction ofproperty, a federal civil rights claim fordeprivation of due process and unreasonableseizure, and federal and state takingsclaims. After the City filed a Motion toDismiss, the court dismissed the AmendedComplaint and granted the police officersqualified immunity on both the federal civilrights and maritime tort claims. ThePlaintiff requested leave to amend, and, overthe objection of the City, was granted leaveto file a Second Amended Complaint.Following the filing of the Second AmendedComplaint, the City again moved to dismissall claims and the Court dismissed theSecond Amended Complaint and againgranted qualified immunity to the officers.CITY DISMISSED FROM CASERoberto Delgado v. City of Miami, et. al.,Case No. 13-CV-23702-KMMThe Plaintiff alleged that he went toGrapeland Park to exercise and sat on a parkbench approximately sixty (60) feet from abuilding rented for a child's birthday party.The Plaintiff further alleged that the birthdayparty was attended by Sergeant CarlosRosario of the Miami-Dade County PoliceDepartment and other officers, who filmedthe Plaintiff adjusting himself multipletimes. Sgt. Rosario called the Miami policecomplaining that the Plaintiff was a sexualpredator conducting lewd and lasciviousactivity in front of children at the park. ThePlaintiff claimed the County officers pushedhim to the ground and detained him untilMiami police officers arrived. OfficerGiraldo Linares arrested the Plaintiff andSergeant Jean Paul Guillot notarized thearrest affidavit. The Plaintiff initiallyasserted claims of negligence, defamation,false arrest, and malicious prosecutionagainst the City and the County. ThePlaintiff filed an amended complaint withcivil rights claims against the City policeofficers. The City removed the case tofederal court. Upon removal to federalcourt, the Plaintiff voluntarily dismissedMiami-Dade County from the lawsuit. TheCity moved to dismiss the state law claimsReporting Period October 1, 2013 – August 31, 201412

of false arrest, negligence, and defamation.The Plaintiff conceded the motion was welltaken with respect to the negligence anddefamation claims. The Court granted theCity's motion to dismiss the false arrestclaim finding Officer Linares had sufficientprobable cause to make the arrest.POLICE OFFICERS DISMISSEDFROM CASERichard Malcolm v. Glenda Perez, et. al.,Case No. 13-22111-Civ-UngaroThe Plaintiff alleged he wasunlawfully searched and falsely arrested fora felony drug charge and that Police OfficersGlenda Perez and Sabine Raymonvilviolated his Fourth Amendment rights. TheDefendant officers asserted there wasprobable cause for the Plaintiff’s arrest andthey moved to dismiss the complaintasserting qualified immunity. The Courtgranted the officers’ motions to dismiss andgranted qualified immunity.PARTIAL SUMMARY JUDGMENTGRANTED AND DEFENSEVERDICT AFTER TRIALJames Ozell Holloway, Jr. v. Wily Diaz, et.al., Case No. 11-23069-Civ-AltonagaThe Plaintiff alleged that he wasarrested and subjected to excessive force inviolation of his Fourth Amendment rights.The Plaintiff asserted claims against oneCity of Miami police officer and two Countypolice officers under 42 USC 1983 forviolation of civil rights and sought monetarycompensation. The Court granted OfficerWily Diaz’s motion for partial summaryjudgment on all claims of excessive forceprior to the point the Plaintiff was placed inhandcuffs. The remaining claims proceededto trial. After trial, the jury rendered averdict in favor of all defendants.Additionally, the Clerk executed a judgmentof costs in the amount of 1,470.10 againstthe Plaintiff for Officer Diaz.Commercial LitigationCITY SUCCESSFUL IN AFORECLOSURE ACTIONCity of Miami v. GVI, et. al.,Case No. 07-33666 CA 01This foreclosure and breach ofcontract action was filed against GVI, aFlorida dissolved corporation. The suitnamed as defendants the original borrowerof a loan from the City, the current owner ofthe property, and the two guarantors of theloan. The current owner, Big League Dove,LLC, purchased the property at a tax deedsale and attempted to quiet title which wouldhave extinguished the City’s 282,000.00mortgage on the property. The City filedthis foreclosure action alleging that itsmortgage was superior to the newpurchaser’s tax deed. The new ownersagreed and entered into a y for the City’s mortgage andagreed to keep the property affordable forthe benefit of the residents of Miami.CASE DISMISSSED AGAINST CITYLee R. Pelcher d/b/a/ LRP Builders, LLC v.City of Miami, Case No. 12-49068 CA 25The Plaintiff sued the City under atheory of negligence, intentional infliction ofemotional distress, and violation of theReporting Period October 1, 2013 – August 31, 201413

federal Fair Credit Reporting Act. ThePlaintiff sought an amount exceeding 15,000.00, plus costs and attorney's feesand alleged that the City negligentlymaintained records and attempted to collecta wrongful debt which caused the Plaintiffsevere emotional distress. The Cityremoved the case to federal court based onthe federal claim and moved to dismiss,arguing failure to properly notice the City,failure to state a cause of action, andsovereign immunity. The federal courtgranted the City's motion to dismiss withrespect to the federal claim and remandedthe remaining state law claims to statecourt. The City moved to dismiss theremaining state law claims which was alsogranted by the state court.Constitutional and Government LawChallengesDISMISSAL OFUNCONSTITUTIONAL POLICY ORPRACTICE CLAIM AGAINST POLICEDEPARTMENTIoannis Kralievits v. City of Miami,Case No. 13-20637 CA 01The Plaintiff filed a suit against theCity of Miami alleging that the City had anunconstitutional policy or practice, withinthe meaning of 42 USC 1983 and the 5th and14th Amendments, of suppressing or failingto disclose Brady information in criminalproceedings. The specific claims in thiscase were predicated on a police officer’scognitive impairment as a result of anaccident in 1996 and 1997. The Plaintiffalleged that the officer’s cognitiveimpairment was Brady information thatshould have been disclosed in the Plaintiff’scriminal trial. The Plaintiff further allegedthat the officer failed to disclose hiscognitive impairment in thousands ofcriminal trials spanning two decades. Thiscase was the first of its kind on this issueand had the potential to create a new line ofpotential claims. The City filed a motion todismiss and while a decision was pendingfrom the Court, the Plaintiff dismissed theclaim.SUNSHINE LAW DISMISSALAFFIRMED ON APPEAL IN FAVOROF THE CITYReynaldo Goyos, et. al. v. City of Miami,Case No. 3D13-1223The Plaintiff sued the City arguingthat the Chief of Police's Firearms ReviewBoard is subject to the Sunshine Law. Thetrial court dismissed the case. The Plaintifffiled an appeal to the Third District Court ofAppeal. After oral argument, the ThirdDistrict issued an opinion affirming theorder of dismissal.SUNSHINE LAW CLAIM DISMISSEDFraternal Order of Police v. City of Miami,Case No. 10-48397 CA 04This action was brought by theFraternal Order of Police (“FOP”) claimingthat the City had violated F.S. 286.011(“Sunshine Law”) by conducting a meetingthat included the City Commission and theMayor immediately prior to a CityReporting Period October 1, 2013 – August 31, 201414

Commission meeting at which labor termswere imposed on the FOP. The FOP soughtto void the labor terms imposed based on thealleged Sunshine Law violation. This casewas aggressively litigated and tried beforethe Honorable Spencer Eig. After the trial,but before entering his ruling, Judge Eiggranted a motion for recusal submitted bythe FOP. Before the case was retried, theparties filed a Stipulation for the Dismissalof this action and each party bore its ownfees and costs.attorneys’ fees, or costs to the Plaintiff. Theco-defendant agreed to pay all of thePlaintiff’s damages, attorneys’ fees, andcosts and the City agreed to installautomated announcement equipment. Thisequipment had already been planned forinstallation before the suit and the City isutilizing dedicated County funds for thepurchase and installation of the equipment.SUMMARY JUDGMENT GRANTEDFOR CITY IN A TAX CHALLENGEMilan Investment Group, Inc. v. City ofMiami, et. al., Case No. 08-77800 CA 08AMERICANS WITH DISABILITIESACT SETTLEMENTAndres Gomez v. City of Miami, Case No.13-23426-Civ-MorenoThis was an action brought under theAmericans with Disabilities Act (“ADA”)for declaratory and injunctive relief as wellas attorneys’ fees and costs by a rider of theCity Trolley. The Plaintiff claimed that thedrivers of City Trolleys failed to announcestops along the fixed trolley system inviolation of the ADA. The Plaintiff wasvisually impaired and alleged that he neededthe stop announcements to ensure he did notmiss his stops. The City concluded thelitigation without paying any damages,The Plaintiff alleged that theenabling legislation for the DowntownDevelopment Authority (“DDA”) wasillegally enacted, that the City did notproperly create the DDA or properly expandits boundaries, and that the .5 mills advalorem tax levied by the DDA violatedequal protection and due process. The trialcourt granted summary judgment for thedefendants, and denied the Plaintiff's motionfor rehearing. The court entered judgmentfor the defendants in two other cases raisingthe same challenges albeit in different taxyears. The cases are currently pending onappeal.TortsFAVORABLE JURY VERDICTTeresa Tronosco v. City of Miami,Case No. 12-2551 CA 21The Plaintiff filed suit against theCity alleging that as she was crossing thestreet on SW 26th Street, near SW 37thAvenue, she tripped and fell as a result of abroken and cracked curb, resulting in bodilyinjury. The Plaintiff further alleged that theCity was negligent in failing to maintain thesidewalk and curb in a reasonably safecondition, and by failing to warn her of thedangerous condition. The Plaintiff fracturedboth wrists and underwent emergencysurgery to install titanium plates and screws.She was disabled for two months while shehad casts on both of her arms from herelbows to her fingers. She was left with painReporting Period October 1, 2013 – August 31, 201415

and swelling of the wrist joints, limitation ofmovement, and loss of grip strength in theright hand. She incurred over 45,000.00 inmedical expenses. The Plaintiff requested 270,826.97 in damages. After trial, the juryfound no negligence on the part of the Cityand returned a verdict for the City.FAVORABLE JURY VERDICTMartina Minguez v. Daisy Pelaez, et. al.,Case No. 10-38385 CA 06The Plaintiff, a mail carrier, filed alawsuit alleging that while she was walkingalong the sidewalk at 2701 SW 30th Avenuedelivering mail, she tripped as a result of acracked and misleveled sidewalk. ThePlaintiff further alleged that the City wasnegligent in failing to maintain the sidewalkin a reasonably safe condition, and by failingto warn her of the dangerous condition. ThePlaintiff alleged she suffered injuries to herright wrist, right knee, back, and neck. Priorto trial, the Plaintiff had demanded 30,000.00 to settle this case with the City.At trial, the City was successful in strikingthe Plaintiff’s claims for lost wages, lostearning capacity, and future medicalexpenses.ThePlaintiffrequested 65,000.00 in damages from the jury. Thejury awarded Plaintiff past medical expensesin the amount of 26,214.62, 5,000.00 forpast pain and suffering, and zero for futurepain and suffering. However, the Courtreduced the award by 80% to account for thePlaintiff’s own negligence. As a result, aftertrial, the City was only responsible for 6,442.92. The amount will be furtherreduced by a Workers’ Compensation Lienof 6,255.62.FAVORABLE JURY VERDICTMiriam Rosello v. City of Miami,Case No. 12-2417 CA 11The Plaintiff filed suit alleging thatshe was walking on the sidewalk at or near520 SW 14th Avenue when she tripped overa section of the brick paver sidewalk thatwas uneven and significantly broken insections, amounting to a hazard, andresulting in bodily injury. The Plaintifffurther alleged that the City was negligent infailing to maintain the sidewalk in areasonably safe condition, and by failing towarn her of the dangerous condition. ThePlaintiff fractured her left wrist and her rightelbow and underwent surgery to install aplate and screws in her wrist. She waspartially disabled for three months while shehad a cast on her left wrist and a brace andsling on her right elbow. She was left with a5% permanent impairment as opined by theCity’s own expert witness. She incurredover 60,000.00 in medical expenses. TheCity was successful in striking the Plaintiff’sexpert liability witness and reducing themedical expenses to the amount of theMedicare lien, 21,792.41. The Plaintiffrequestedmedicalexpensesplus 150,000.00 for pain and suffering damages.After trial, the jury found no negligence onthe part of the City and returned a verdict forthe City.FAVORABLE JURY VERDICTCesar Mazzotta v. City of Miami, et. al.,Case No. 12-36328 CA 09The Plaintiff filed suit against theCity of Miami and the property ownersalleging he was jogging on a sidewalkmaintained by the City, when the propertyowners’ overgrown hedges caused him toReporting Period October 1, 2013 – August 31, 201416

enter the swale area, where he tripped over acut sign post. The Plaintiff alleged hesuffered an injury to his left knee whichrequired arthroscopic surgery. Prior to trial,the Plaintiff had demanded 100,000.00from the City. The case proceeded to trialand after deliberations, the jury awardedzero damages for the Plaintiff’s pain andsuffering and determined the Plaintiff was50% at fault. The jury awarded the Plaintiffhis prior medical bills in the amount of 44,107.00. However, this amount wassubstantially reduced because the Plaintiffreceived insurance benefits and the courtreduced the award by 50% to account for thePlaintiff’s own negligence.FAVORABLE JURY VERDICTAlan Christian Chovel,

OFFICE OF THE CITY ATTORNEY CITY OF MIAMI EXECUTIVE SUMMARY OCTOBER 1, 2013 - AUGUST 31, 2014 Victoria Méndez, City Attorney CITY OF MIAMI Office of the City Attorney Miami Riverside Center 444 S.W. 2nd Avenue, Suite 945 Miami, FL 33130. Reporting Period October 1, 2013 - August 31, 2014 2