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Appellate Practice (Appeals)
The Appellate Practice Group is chaired by Chris Kleppin. The Practice Group is involved in all sorts of appeals, relating to most aspects of labor and employment law, wage and hour law, and civil rights litigation. We have successfully handled appeals to the district courts of appeal in Florida (Florida's mid-level appellate court), the Supreme Court of Florida, the Eleventh Circuit Court of Appeals, and the Supreme Court of the United States.

List of Representative Clients: The Town of Davie, Florida, Broney Automotive Repairs, Inc., Irmadan, Inc., Playmaker Services, LLC, Wall to Wall Residence Repairs, Inc., Lt. Kenneth Swan, and Meghan Bussell.

List of Representative Cases: Our firm enjoys the pleasure of having many appellate victories. A sampling of those cases is set forth below.

Federal Court Appeals

Josendis v. Wall to Wall Residence Repairs, Inc., et al., 662 F.3d 1292 (11th Cir. 2011)

This was a Fair Labor Standards Act case. The firm represented the defendants. The trial court granted summary judgment in favor of the defendants on the ground that the plaintiff could not prove that the corporate defendant was an enterprise engaged in interstate commerce for purposes of the FLSA or that the plaintiff could prove that he could establish individual coverage. The trial court further held that 29 C.F.R. § 776.23, which states that any construction worker working at a hospital is entitled to bring a FLSA claim, was arbitrary and capricious. The corporate defendant had less than $500,000 in gross annual sales volume, and thus was not subject to the Act. The plaintiff unsuccessfully argued that the corporate defendant had certain expenses that suggested that the gross sales volume exceeded $500,000.

Further, the firm argued that the trial court should grant summary judgment on the ground that the plaintiff was an illegal alien. The court did not address that issue.

On appeal, the defendants argued that the trial court's order should be affirmed on the grounds provided for by the trial court, and, if not, that affirmance was required because the plaintiff was an illegal alien. The Eleventh Circuit held oral argument on January 18, 2010, and in late May, 2010, requested that the Solicitor General of the United States (Elena Kagan) give the Obama Administration's position concerning whether an illegal alien could recover under the FLSA. The federal government thereafter submitted a brief on the issue. The Eleventh Circuit ultimately did not determine that issue, but on November 17, 2011, issued this opinion, which is a watershed opinion concerning the legal standards that a plaintiff must show to prove both enterprise coverage and individual coverage under the Fair Labor Standards Act, and the opinion upheld the finding that 29 C.F.R. § 776.23 is arbitrary and capricious.

Arilus v. Joseph A. DiEmmanuele, Inc., et al., 522 Fed. Appx. 881 (11th Cir. 2013)

On July 8, 2013, the Eleventh Circuit Court of Appeals affirmed the grant of summary judgment in favor of the firm's defense client, which was granted by the trial court, because the plaintiffs could not prove that the Fair Labor Standards Act applied to the corporate defendants, because they did not have the requisite $500,000 in gross annual sales volume.

Rakip v. Paradise Awnings Corp., et al., 514 Fed. Appx. 917 (11th Cir. 2013)

On March 27, 2013, the Eleventh Circuit Court of Appeals decided an appeal and a cross-appeal in favor of the firm's defense client. This case was a Fair Labor Standards Act case, and the firm brought a counterclaim against Plaintiff Rakip under Florida's civil theft statute, Florida Statutes § 772.11, which the court converted into a breach of contract claim during the trial. Shortly before trial, the court granted summary judgment in favor of the defendants as to Plaintiff Rakip's overtime claim on the ground that he released it. The jury rendered a verdict in favor of the defendants on the FLSA claim, finding that Plaintiff Jeronimo was an exempt manager not entitled to overtime and that in any event no overtime was worked. The jury also rendered a verdict on the counterclaim in favor of the defendants for $1,360.00 against Plaintiff Rakip. After trial, the court denied the plaintiffs' post-trial motions, except it took away the jury's award of $1,360.00 against plaintiff away and granted judgment as a matter of law in favor of the plaintiff. The plaintiffs appealed the grant of summary judgment in favor of defendants as to Plaintiff Rakip's overtime claims and the defendants cross-appealed the court's granting judgment as a matter of law in favor of Plaintiff Rakip as to the counterclaim. The Eleventh Circuit affirmed the grant of summary judgment in favor of the defendants as to Plaintiff Rakip's overtime claim, but reversed the trial court's grant of judgment as a matter of law as to the breach of contract claim and reinstated the jury verdict of $1,360.00 on the counterclaim.

Lamonica v. Safe Hurricane Shutters, Inc., et al., 711 F.3d 1299 (11th Cir. 2013)

On March 6, 2013, the Eleventh Circuit Court of Appeals recognized that the firm prevailed as to 7 of the 9 plaintiffs in this Fair Labor Standards Act case, and affirmed the judgment in favor of 2 of the plaintiffs against the firm's employer client for a fraction of the money that they sought.

Murray v. Playmaker Services, LLC, 325 Fed. Appx. 873 (11th Cir. 2009)

The firm represented the Defendant (a manufacturer's representative for playground equipment) in an action alleging four counts of Fair Labor Standards Act violations and two counts under Florida wage statutes. The Defendant defended the case on the ground that the Plaintiff was an independent contractor who (by virtue of that status) had no cause of action under the FLSA or under Florida unpaid wage statutes. Florida Statutes § 448.08. The Defendant's motion for summary judgment was granted. Murray v. Playmaker Servs., LLC, 512 F. Supp. 2d 1273 (S.D. Fla. 2007). Following the court's decision, the Defendant moved for attorney fees on the ground that the case was frivolous or, in the alternative, the continued litigation of the case past the discovery stage was litigated after Plaintiff's counsel knew or should have known the case was frivolous. The motion for attorney fees was granted in part by the United States District Court for the Southern District of Florida in the amount of $23,375.00. Murray v. Playmaker Servs., LLC, 548 F. Supp. 2d 1378 (S.D. Fla. 2008). The plaintiff appealed, but the Eleventh Circuit Court of Appeals upheld the sanctions against the plaintiff's attorney for vexatious multiplication of the proceedings.

Navarro v. Broney Automotive Repairs, Inc., 314 Fed. Appx. 179 (11th Cir. 2008)

The firm represented the Defendant, which is a local automotive repair business. The plaintiff was an employee who brought suit under the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq., alleging unpaid overtime compensation. The Defendant moved for summary judgment because Defendant was not subject to the FLSA and because the Plaintiff could not prove that he was entitled to invoke individual coverage under the FLSA, meaning that he could not prove that he participated in the actual movement of people or things across state lines, and thus the motion was granted. Navarro v. Broney Automotive Repairs, Inc., 533 F. Supp. 2d 1223 (S.D. Fla. 2008). The Plaintiff appealed claiming that he was engaged in commerce because the automotive parts he used to repair the vehicles flowed in interstate commerce until the parts reached the customer. The court rejected this argument and found that the parts interstate activity ended when the parts reached the retailer's shop from which the Defendant purchased the parts. The Plaintiff's purchase of those parts and the taking and placing them in and on customers' cars was purely intrastate activity and thus not subject to FLSA coverage. The Plaintiff filed a writ of certiorari with the Supreme Court of the United States which was summarily denied after the firm's Brief in Opposition was filed. See Navarro v. Broney Automotive Repairs, Inc., 129 S. Ct. 507 (2008).

Guzman v. Irmadan, Inc., 322 Fed. Appx. 644 (11th Cir. 2009)

The firm represented a small, family owned carpentry business in a suit alleging unpaid overtime wages against the company and owner pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. The plaintiff was a cabinet installer and assembler for the company. The plaintiff claimed he was an employee directly involved in interstate commerce due to the fact that he was sometimes sent to local hardware and retail stores to pick up items that had previously traveled in interstate commerce. The court granted the Defendant's motion for summary judgment finding that purchasing goods in Florida that had previously traveled in interstate commerce did not qualify as participating in interstate commerce. Guzman v. Irmadan, Inc., 551 F. Supp. 2d 1368 (S.D. Fla. 2008). The court had previously limited discovery to the issue of coverage under the FLSA and limited the plaintiff to approximately 34 days of discovery which greatly reduced the attorneys fees and costs in the case that were expended. Guzman v. Irmadan, Inc., 2008 WL 926375 (S.D. Fla. 2008). The Eleventh Circuit Court of Appeal affirmed the grant of summary judgment.

Bussell v. Motorola, Inc., 127 S. Ct. 38 (2006)

In Bussell v. Motorola, Inc., 141 Fed. Appx. 819 (11th Cir. 2005), the Eleventh Circuit Court of Appeals affirmed a grant by the lower court against Bussell on her claims of sexual harassment and retaliation. The firm filed a petition for certiorari review with the Supreme Court of the United States, which granted the certiorari petition, vacated the judgment against Plaintiff, and remanded back to the Eleventh Circuit.


State Court Appeals

Brown v. Jenne, 122 So. 3d 881 (Fla. 4th DCA 2012)

The firm represented one of approximately ten (10) Defendants (Lt. Kenneth Swan) in a civil rights case brought under 42 U.S.C. §§ 1983 and 1985 for wrongful death. The basic facts of the case were that the decedent neglected to take his anti-seizure medication, had a seizure while driving, and crashed, which resulted in a roll-over of the SUV. The police and fire rescue arrived at the scene to assist the decedent, and have became violent, and refused all attempts to communicate his medical condition. The decedent was restrained, not for any law enforcement purpose, but to render medical aid. The decedent was placed in an ambulance for transport to an area hospital. Shortly after the decedent arrived at the hospital, he passed. The decedent sued all of the police and fire rescue personnel who were at the scene. Lt. Swan, our client, was the highest ranking officer at the scene of the accident, but he did not ride in the ambulance with the decedent to the hospital, as other Defendants did that.

Lt. Swan moved for dismissal on the ground that he was entitled to absolute immunity from suit under Florida Statutes § 768.28(9)(a)--this firm had previously obtained an order from a court holding that employees of governmental entities (such as cities and counties) are absolutely immune from such suits. Brooks v. Jenne, 2005 WL 5488060 (S.D. Fla. 2005). The circuit court granted the dismissal. The Plaintiffs appealed, and the Fourth District Court of Appeal reversed, holding that § 768.28(9)(a) does not render employees of governmental entities absolutely immune from suit. Brown v. Jenne, 941 So. 2d 447 (Fla. 4th DCA 2006). Lt. Swan sought review in the Supreme Court of Florida, which denied review.

The case went back down to the trial court, and after further discovery, the circuit court granted Lt. Swan's motion for summary judgment on the ground of qualified immunity. Brown v. Jenne, 2009 WL 3253820 (Fla. Cir. Ct. 2009). The Plaintiffs appealed, but the Plaintiffs lost that appeal, because the Fourth District Court of Appeal affirmed the grant of summary judgment originally issuing the opinion as, Brown v. Jenne, 2011 WL 5375045 (Fla. 4th DCA, Nov. 9, 2011). The court held that there was no Fourth Amendment search or seizure, because the decedent was not restrained for a law enforcement purpose, but rather was restrained for fire rescue personnel to administer first aid. On rehearing, the court issued the opinion cited in the title of this section, leaving intact the grant of summary judgment that the trial court awarded to the firm's client Lt. Swan, and the other Broward County Fire Rescue workers.

Portales v. Another Beautiful Corporation, 121 So. 3d 562 (Fla. 3d DCA 2012)

The firm represented Defendant, Another Beautiful Corporation, in a case alleging pregnancy discrimination and whistleblower retaliation (for allegedly being fired after complaining about the employer wrongly recording telephone calls between sales associates and potential customers, pursuant to the Florida Civil Rights Act, Florida Statutes § 760.01 et seq., and Florida's Whistleblower Act, Florida Statutes § 448.101 et seq. The Defendant runs a successful modeling school and agency. The Plaintiff sued for compensatory damages, punitive damages, back pay, front pay, attorney fees, and costs.

The firm defended the charge of discrimination filed with the EEOC, and obtained a "no-cause" determination (that is, a legal ruling from the administrative agency that there was no discrimination that occurred) from the agency investigating the plaintiff's allegations. This served to bar the plaintiff from litigating her pregnancy discrimination claim in court. Discovery revealed that while represented by counsel, the plaintiff told the EEOC that the sole reason for her termination was the fact that she was pregnant, and that she never even filed a charge of discrimination with the Florida Commission on Human Relations which is a prerequisite to bringing a claim under FCRA.

Discovery also revealed that there was nothing unlawful about the recording of the telephone calls (they contained the admonition that "this telephone call may be recorded..."), and the plaintiff did not even complain about any telephone calls being recorded until February, 2009, but she learned that she was going to be replaced in November, 2008.

The court granted summary judgment in favor of the defendant for all of the reasons listed and others. See Portales v. Another Beautiful Corporation, 2011 WL 1043663 (Fla. Cir. Ct. 2011) (Miami-Dade). The defendant is deciding whether to seek attorney fees from plaintiff's counsel for the filing of a frivolous lawsuit. In any event, the Plaintiff appealed, and the Third District Court of Appeal on May 16, 2012, affirmed in the opinion cited above.

Malin v. Town of Davie, Florida, 22 So. 3d 88 (Fla. 4th DCA 2009)

The firm represented the Defendant (a municipality in Florida) in an action brought by two plaintiffs (former police officers) alleging discrimination, harassment, and retaliation in violation of Florida's Civil Rights Act, Florida Statutes § 760.01 et seq. Plaintiff testified that he was referred to as a "f------ Jewish pig", and that his co-plaintiff was retaliated and discriminated against for maintaining a friendship with Plaintiff. The Defendant's motion for summary judgment was granted. Malin v. Town of Davie, 2008 WL 2752707 (Fla. Cir. Ct. 2008). Following the court's decision, the Plaintiff appealed to the Fourth District Court of Appeal which affirmed the decision below.

McCarroll v. Van Dyk, 8 So. 3d 1256 (Fla. 4th DCA 2009)

The firm represented the Defendants (Safe Hurricane Shutter, Inc. and Francis McCarroll) in a collection action brought by a former employee. The suit was filed in Palm Beach County. Defendants moved for change of venue to Broward County, Florida. The circuit court judge in Palm Beach County denied the motion. The Defendants appealed, because they suspected that the Plaintiff really did not intend to litigate the case if it was transferred to Broward County. The Fourth District Court of Appeal held that venue was proper in Broward County, and therefore reversed the Palm Beach County judge. After remand, the Plaintiff abandoned the case.

Brown v. Jenne, 941 So. 2d 447 (Fla. 4th DCA 2006)

The firm represented one of approximately ten (10) Defendants (Lt. Kenneth Swan) in a civil rights case brought under 42 U.S.C. §§ 1983 and 1985 for wrongful death. Swan moved for dismissal on the ground that he was entitled to absolute immunity from suit under Florida Statutes § 768.28(9)(a)--this firm had previously obtained an order from a court holding that employees of governmental entities (such as cities and counties) are absolutely immune from such suits. Brooks v. Jenne, 2005 WL 5488060 (S.D. Fla. 2005). The circuit court granted the dismissal. The Plaintiffs appealed, and the Fourth District Court of Appeal reversed, holding that § 768.28(9)(a) does not render employees of governmental entities absolutely immune from suit. Lt. Swan sought review in the Supreme Court of Florida, which denied review.

The case went back down to the trial court, and after further discovery, the circuit court granted Lt. Swan's motion for summary judgment on the ground of qualified immunity. Brown v. Jenne, 2009 WL 3253820 (Fla. Cir. Ct. 2009). The Plaintiffs appealed, but the Plaintiffs lost that appeal, because the Fourth District Court of Appeal affirmed the grant of summary judgment. Brown v. Jenne, -- So. 3d --, 2011 WL 5375045 (Fla. 4th DCA, Nov. 9, 2011).

Arugu v. Division of Administrative Hearings, 1 So. 3d 187 (Fla. 4th DCA 2009)

The firm represented the Broward County Sheriff's Office in a discrimination and civil rights proceeding brought by a former employee Kenneth Arugu, who had filed a charge of discrimination alleging various violations of the Florida Civil Rights Act, Florida Statutes §§ 760.01 et seq. After review of BSO's position statement contesting the allegations in the plaintiff's charge of discrimination, which set forth the percentage of minorities employed by BSO, the administrative agency issued a "no-cause" determination, meaning it found that plaintiff Arugu was not discriminated against. Because of this finding, Arugu could not file suit in court, but was limited to administrative remedies (a hearing before DOAH), which he pursued. At the DOAH, DOAH found in favor of BSO. Arugu appealed, and the Fourth District Court of Appeal affirmed the decision for BSO.