Third District Court of Appeal
State of Florida
Opinion filed May 12, 2021.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D19-1645
Lower Tribunal No. 10-42184
________________
Shaquille O’Neal,
Appellant,
vs.
Shawn Darling and Menachem Mayberg,
Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Spencer Eig,
Judge.
Carlton Fields, and Benjamine Reid, Clifton Gruhn and Jeffrey Cohen,
for appellant.
Dorta Law, and Matias R. Dorta and Gonzalo R. Dorta, for appellee
Menachem Mayberg.
Before LINDSEY, HENDON, and BOKOR, JJ.
HENDON, J.
Shaquille O’Neal (“O’Neal”) appeals from an order vacating in part a
final judgment granting his motion for attorney’s fees and denying in part his
motion for entitlement to attorney’s fees pursuant to section 57.105, Florida
Statutes (2017). We reverse.
Shawn Darling (“Darling”) was intermittently employed by Shaquille
O’Neal (“O’Neal”) to provide personal computer and technology-related
services between late 2007 and November 2009. Sometime prior to
December 2009, Darling acquired about 25,000 personal emails from
O’Neal, and asserted they were Darling’s property. Through his counsel at
the time, Darling demanded O’Neal pay him $12 million for return of the
personal emails or he would release them to the public. O’Neal refused.
In 2010, Darling, through his current counsel Mayberg, filed a lawsuit
against O’Neal seeking damages based on invasion of privacy, intentional
infliction of emotional distress, and a purported violation of the Florida RICO
statute. Darling subsequently sent a portion of the electronic material to a
reporter and sold a portion to a celebrity gossip website. O’Neal sought a
protective order and injunction to prohibit further dissemination of the
material. The circuit court entered the injunction and this Court affirmed.
Darling v. O’Neal,
86 So. 3d 1128 (Fla. 3d DCA 2012). Despite the
injunction, Mayberg filed several more personal electronic documents in the
2
public record as exhibits to an amended complaint, resulting in a news
article. The court ordered Mayberg to remove the documents from the public
record, and the newspaper printed a retraction. In October, 2014, the court
concluded that the undisputed record evidence established that O’Neal, not
Darling, owned the personal electronic materials.
In December 2014, O’Neal served Darling and Mayberg with notice of
intent to file for sanctions pursuant to section 57.105, Florida Statutes (2017).
Darling did not dismiss his action against O’Neal during the 21-day safe
harbor period, and in January 2015, O’Neal filed his motion for section
57.105 sanctions. Following that filing, Darling continued to pursue his claims
in circuit court. The circuit court concluded that Darling failed to establish
legitimate causes of action, dismissed the RICO claim and the intentional
infliction of emotional distress claim, and entered summary judgment in
O’Neal’s favor on the invasion of privacy claim. This Court affirmed the
circuit court’s rulings per curiam and without oral argument. Darling v.
O’Neal,
247 So. 3d 481 (Fla. 3d DCA 2018).
In February 2016, O’Neal noticed a hearing on his motion for section
57.105 sanctions. 1 In November 2016, the court ordered Darling to return all
1
In the twenty-eight months since O’Neal filed the motion, neither Darling
nor Mayberg filed any substantive response to the motion for sanctions.
3
personal electronic materials to O’Neal or delete them from every possible
account.
The hearing on O’Neal’s entitlement to section 57.105 fees took place
on May 15, 2017, at which all parties were present. Darling’s counsel,
Mayberg, argued that his client asserted that he was in fear of O’Neal and
believed the only way to protect himself was to file the three-count complaint,
and that once having lost those counts, all of the delays in the litigation over
ownership of the electronic materials had nothing to do with Mayberg’s
representation of Darling. Mayberg asked if he could show the judge those
portions of the record that indicated Mayberg’s efforts to move the litigation
forward. 2
Id. Mayberg also asked the judge in passing, if, after he argued,
he could testify as to the issue of bad faith regarding the 57.105 issue, and
the judge granted him an additional ten minutes to the forty-minute hearing
time allotted to finish his statement. 3
2
THE COURT: So, within those four years, did you ever make an attempt to
ask the Court for relief to take the additional depositions, so you can continue
along with the case?
MR. MAYBERG: No. . . .
3
MR. MAYBERG: Your Honor, I’m just respectfully ask that, you know,
I do understand that 40 minutes was granted. A lot was taken up, and I still
have a lot to answer, Your Honor, and a lot of evidence to show, because I
had to deal with so much in terms of what did not happen was alleged that
the Judge did or didn’t do, and I had to go prove that. What I’d like to do, --
so, Your Honor, getting to the issue of what happened in terms of --
4
In response to Mayberg’s request to submit further documentary
evidence, the court agreed to defer ruling on the motion and provided
Mayberg with fifteen additional days in which to submit evidence, such as
hearing transcripts or Mayberg’s affidavit. Mayberg did not file any of the
information as he requested at the hearing, nor did Mayberg seek an
additional evidentiary hearing. 4
On August 17, 2017, the trial court found that O’Neal was entitled to
section 57.105 fees, concluding the record showed there was no legal basis
for the three claims asserted in Darling’s case against O’Neal. Further, the
court found that the lawsuit was not filed or litigated in good faith, and that
the evidence demonstrated that Mayberg was fully aware of Darling’s pre-
suit attempt to extort money from O’Neal as a condition of returning the
emails and texts. The court provided a detailed list in its order of the
sanctionable conduct committed by Darling and Mayberg. On September 1,
THE COURT: I’ll give you about two minutes to wrap up and then I
want to hear a reply. Okay?
MR. MAYBERG: Okay.
4
Importantly, as discussed later, Mayberg eventually requested a rehearing
to present additional testimony, but only after the trial court’s ruling.
5
2017, Mayberg moved for rehearing and reconsideration, asserting that he
had not been permitted to testify at the May 15 hearing. 5
On October 31, 2017, the trial court held an evidentiary hearing on
O’Neal’s motion to determine the amount of attorney’s fees. The Court
accepted detailed records from O’Neal’s law firm, heard testimony from
O’Neal’s expert, found the hourly rates reasonable, made adjustments, and
concluded that O’Neal was entitled to fees of $412,914.50, to be split
between Darling and his counsel, Mayberg. Mayberg did not call any
witnesses. Afterward, Mayberg retained personal counsel, and two
additional hearings were held, on December 4, 2017 and January 10, 2018.
At the January 2018 hearing, Mayberg’s counsel cross-examined O’Neal’s
counsel about the fees. Each party submitted proposed orders, and the trial
court awarded fees to O’Neal.
On September 27, 2018, Mayberg filed a second motion for rehearing,
now of the final judgment, once again asserting that he was denied the
opportunity to put forth evidence at the May 15, 2017 hearing on entitlement
to section 57.105 fees. Mayberg alleged the trial judge “restrained” him from
5
Nothing in the record indicates that Mayberg followed up with a notice of
hearing, nor does any order addressing Mayberg’s motion for rehearing and
reconsideration, prior to entry of the final judgment, appear in the record on
appeal.
6
presenting his sworn testimony during the evidentiary hearing on entitlement
and section 57.105 fees resulting in an erroneous ruling on the merits. The
record refutes Mayberg’s assertion. The trial court provided ample notice of
the entitlement hearing and provided additional time at the hearing to
accommodate Mayberg. Mayberg declined the court’s invitation to
supplement the record with an affidavit, and he failed to file anything before
the court ruled on entitlement to put the court and the parties on notice that
he sought additional time.
Between the time the final judgment was rendered and Mayberg filed
his motion for rehearing, the judge who had presided over the litigation up to
that point, Judge Sanchez-Llorens, was transferred to another division. The
successor judge, Judge Eig, granted Mayberg’s motion for rehearing of
entitlement to attorney’s fees pursuant to section 57.105.
On July 31, 2019, Judge Eig held a new evidentiary hearing on
Mayberg’s motion for rehearing, in which Mayberg testified, and revisited
issues previously determined in prior hearings leading up to the final
judgment. Judge Eig ultimately ruled that “Mr. Mayberg has established that
he had acted in good faith, based on the representation of his client, as well
as extrinsic evidence corroborating the claim. Consequently, monetary
sanctions may not be awarded against the losing party's attorney, pursuant
7
to Section 57.105(3)(b), Florida Statutes (2019).” Judge Eig vacated the
August 2017 order on entitlement to attorney’s fees and vacated that portion
of the final judgment that applied to Mayberg. O’Neal appealed.
We first address whether the successor judge had the authority to
vacate the predecessor judge’s final judgment. We conclude that he did not.
“A successor judge cannot review, modify or reverse, upon the merits on the
same facts, the final orders of his predecessor in the absence of fraud or
mistake.” 6 Balfe v. Gulf Oil Co.-Latin Am.,
279 So. 2d 94, 95 (Fla. 3d DCA
1973). The rule precludes a successor judge from reviewing, modifying or
reversing a final order or judgment in a cause made by his predecessor, as
opposed to an interlocutory order. See Deemer v. Hallett Pontiac, Inc.,
288
So. 2d 526, 527 (Fla. 3d DCA 1974) (explaining where one circuit judge has
made an interlocutory order in a case, and for some reason is not able to
continue to preside, another judge of the circuit court can vacate the prior
order when the case is pending and has not gone to final judgment); see
Tingle v. Dade Cnty Bd. of Cnty Comm’rs,
245 So. 2d 76, 78 (Fla. 1971)
6
The only exception to the rule precluding successor judges from ruling on
motions for rehearing is where there is a showing of fraud, mistake, or some
exceptional changed circumstances. See Pratt v. Gerber,
330 So. 2d 552,
553 (Fla. 3d DCA 1976). Mayberg made no such showing, nor does he argue
those conditions existed. In this case, the record shows no evidence of an
error of law, mistake of fact, or fraud.
8
(successor judge may “vacate or modify the interlocutory rulings or orders of
his predecessor in the case.”); Wasa Int'l Ins. Co. v. Hurtado,
749 So. 2d 579
(Fla. 3d DCA 2000); see also Jauregui v. Bobb’s Piano Sales & Serv., Inc.,
922 So. 2d 303, 305 (Fla. 3d DCA 2006) (holding that “the successor judge
lacked the power or authority to revisit, much less reverse, the previous
decision on the merits.”); Ice Legal, P.A. v. U.S. Bank Nat’l Ass’n,
182 So.
3d 858, 859 (Fla. 4th DCA 2016) (“After the sanctions order became final,
the successor trial judge was without authority to alter it by assessing the
sanctions against defense counsel and the homeowner.”). See also Davis v.
Fisher,
391 So. 2d 810, 811 (Fla. 5th DCA 1980) (“It is not the function of
one trial judge to review another’s judgment.” (citing Groover v. Walker,
88
So. 2d 312 (Fla. 1956)); McBride v. McBride,
352 So. 2d 1254 (Fla. 1st DCA
1977); see also State v. Gary,
609 So. 2d 1291, 1293 (Fla. 1992) (holding
successor judge had limited authority to issue orders inconsistent with his
predecessor’s rulings, those limits are necessary to promote the stability of
decisions of judges of the same court and to avoid “unseemly contests and
differences that otherwise might arise among them to the detriment of public
confidence in the judicial function.” (citations omitted)).
Here, the predecessor judge rendered a final judgment on the merits
and was then reassigned to a different circuit court division. Thereafter,
9
Mayberg filed his motion for rehearing. In this circumstance, “[w]here the
judge rendering a final judgment is not available to hear a motion for new
trial or for rehearing, a hearing and ruling thereon by another or successor
judge is not appropriate, . . . the proper procedure is to seek an appellate
review of the judgment.” Better Constr., Inc. v. Camacho Enters., Inc.,
311
So. 2d 766, 767 (Fla. 3d DCA 1975). This Mayberg did not do.
With that in mind, we consider whether Mayberg waived his right to
another evidentiary hearing on entitlement and amount of attorney’s fees by
waiting until a final judgment was rendered. Mayberg chose to appear
unrepresented at the motion to determine entitlement despite clear notice
that O’Neal sought fees from both Mayberg and Darling. Mayberg did not
alert the trial court that he needed time to testify until the hearing was almost
concluded. Even then, the trial court attempted to accommodate. Mayberg
did not follow up with any request for additional time before the trial court
ruled on entitlement. Instead, Mayberg waited for the ruling on entitlement,
which was not in his favor. See Wong v. Crown Equip. Corp.,
676 So. 2d
981, 982 (Fla. 3d DCA 1996) (noting plaintiff's counsel did not object to the
argument at the summary judgment hearing nor did he ask for a continuance
so that he might prepare to meet this “new” argument, and did not raise the
subject point until after the trial court had granted the summary judgment, at
10
which time he filed a motion for rehearing and claimed surprise, waiving any
procedural irregularity).
Further, the record shows that neither Mayberg nor his counsel raised
any new points on the issue of entitlement in the rehearing of the final
judgment before the successor judge. Under these circumstances, Mayberg
is deemed to have waived the opportunity to raise error as to any aspect of
the original entitlement hearing. See ESJ JI Operations, LLC v. Domeck, 45
Fla. L. Weekly D2484 at *1 (Fla. 3d DCA Nov. 4, 2020) (finding appellants
were afforded ample opportunity to be heard, and due process was satisfied,
and finding the record devoid of any evidence to show the parties’ oral
presentations were unduly hampered, restricted, or curtailed in any manner);
Batista v. Batista,
553 So. 2d 1281, 1282 (Fla. 3d DCA 1989) (holding that
“where the petition for rehearing merely reargues the case on points and
facts found and considered in the prior hearing of the cause, then the petition
for rehearing goes beyond its proper scope and it should be denied in any
event, and if the Chancellor who entered the final decree has been
succeeded, his successor is without authority on such basis to reverse his
predecessor” (quoting Groover,
88 So. 2d at 315).
11
Finally, we address whether the predecessor judge abused her
discretion in finding entitlement to section 57.105(1) fees as against Mayberg
and conclude she did not.
Section 57.105 provides as follows:
(1) Upon the court’s initiative or motion of any party, the court
shall award a reasonable attorney’s fee, including prejudgment
interest, to be paid to the prevailing party in equal amounts by
the losing party and the losing party’s attorney on any claim or
defense at any time during a civil proceeding or action in which
the court finds that the losing party or the losing party’s attorney
knew or should have known that a claim or defense when initially
presented to the court or at any time before trial:
(a) Was not supported by the material facts necessary to
establish the claim or defense; or
(b) Would not be supported by the application of then-existing
law to those material facts.
When the requirements of section 57.105 are met and, as here, no exception
applies, the statute directs that “the court shall award a reasonable attorney’s
fee.’” § 57.105(1) (emphasis added). Certainly, section 57.105 must be
applied with restraint to ensure that it serves its intended purpose of
discouraging baseless claims without casting “a chilling effect on use of the
courts.” Swan Landing Dev., LLC v. First Tenn. Bank Nat’l Ass’n,
97 So. 3d
326, 328 (Fla. 2d DCA 2012). In this instance, the predecessor judge
supported her judgment order awarding fees with a detailed list of the
sanctionable conduct committed by Darling and Mayberg, and the record
12
before us on appeal lacks any demonstration that the predecessor judge
abused her discretion in adjudicating the issue of good faith.
We therefore reverse the final judgment entered by the successor
judge and reinstate the final judgment entered by the predecessor judge
awarding section 57.105 fees to O’Neal.
Reversed; original judgment reinstated.
13
