IN THE DISTRICT COURT OF APPEALS – FOURTH DISTRICT

WEST PALM BEACH, FLORIDA

BRENDA COX,

Appellant/Cross-Appellee Case No. 4D14-2049

v. L.T. Case No. 06-6825 (14)

GREAT AMERICAN INS. CO.

Appellee/Cross-Appellant

-------------------------------------------------------

APPELLANT BRENDA COX’S

AMENDED REPLY BRIEF AND

ANSWER BRIEF ON CROSS-APPEAL

Filed By:

Jerome L. Tepps, Esq.

Fla. Bar No. 283045

4300 North University Drive

Suite C-102

Sunrise, FL 33351

Email: jerome@teppslawfirm.com

Phone: (954) 565-3231 x 4

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TABLE OF CONTENTS

Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii, iii

Preliminary Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

REPLY BRIEF ON MAIN APPEAL

GREAT AMERICAN HAS FAILED TO ADDRESS THE PRIMARY . . . 1

ISSUE ON APPEAL – DID THE TRIAL COURT PROPERLY

COMPLY WITH THIS COURT’S MANDATE IN CASE 4D10-5155

BY GRANTING PLAINTIFF A NEW TRIAL WITH A

PREDETERMINED OUTCOME IN ITS FAVOR.

GREAT AMERICAN WAS PERMITTED TO COMMIT A TRIAL . . . . . 11

BY AMBUSH

EXPERT WITNESS FEES WERE NOT PROPERLY AWARDED . . . . . . 12

ANSWER BRIEF IN CROSS APPEAL

GREAT AMERICAN IS NOT ENTITLED TO PRE-JUDGMENT . . . . . 15

INTEREST WHILE COX IS ENTITLED.

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

i.

TABLE OF AUTHORITIES

Cases

Amerus Life Ins. v. Lait, 2 So.3d 203 (Fla. 2009) . . . . . . . . . . . . . . . . . . . . . 7

Argonuet Ins. Co. v. May Plumbing Co., 474 So.2d 212 (Fla. 1985) . . . . . . 15

Bosem v. Musa Holdings, Inc., 46 So.3d 42 (Fla. 2010) . . . . . . . . . . . . . . . . 15

Cox v. Great American Ins. Co., 88 So.3d 1048 (Fla. 4th DCA 2012) . . . . . 2, 5, 10

Diwaker v. Montecito Palm Beach Condo. Ass’n, Inc., . . . . . . . . . . . . . . . . 2

143 So.3d 958, 960-61 (Fla. 4th DCA 2014)

Freiman v. National City Mort. Co., . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

4D13-2935, 40 Fla.L.Weekly D1634 (Fla. 4th DCA 2015).

Garcia v. Stewart, 961 So.2d 1025, 1027 (Fla. 4th DCA 2007) . . . . . . . . . . 15

Johnson v. Bezner, 910 So.2d 398(Fla. DCA 2005) . . . . . . . . . . . . . . . . . . . 4

Morton’s of Chicago, Inc. v. Lira, 48 So.3d 76, 80 (Fla. 1st DCA 2010) . . 2

Nical of Palm Beach v, Lewis, 981 So.2d 502 (Fla. 4th DCA 2008) . . . . . . . 6

Pompano Masonry Corp. v. Anastasi, 125 So.3d 210 (Fla. 4th DCA 2013) . . 5

Price v. Tyler, 890 So.2d 246 (Fla. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

San Pedro v. Law Offices of Paul Burkhart . . . . . . . . . . . . . . . . . . . . . . . . . 2

168 So.3d 299, 300-301 (Fla. 4th DCA 2015)

The Scripps Institute, Inc. v. The Scripps Institute . . . . . . . . . . . . . . . . . . . . . 12

916 So.2d 988 (Fla. 4th DCA 2005)

St. Joe Paper Co. v. Adkinson, 413 So.2d 107 (Fla. 1st DCA 1982) . . . . . . . 3

St. Joe Paper Co. v. Adkinson 400 So.2d 983 (Fla. 1st DCA 1981) . . . . . . . .

ii.

State Farm Mut. Auto. Ins. Co. v. Stylianoudakis . . . . . . . . . . . . . . . . . . . . . 7

946 So.2d 647 (Fla. 4th DCA2007

Veiner v. Veiner, 459 So.2d 381 (Fla. 3d DCA 1984) . . . . . . . . . . . . . . . . . . 4

Veiner v. Veiner, 364 So.2d 834 (Fla. 3d DCA 1978) . . . . . . . . . . . . . . . . . . 4

Statutes

Section 57.041 Fla. Stat. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Section 90.202, Fla. Stat. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Section 90.203, Fla. Stat. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

.

Rules

Fla.R.Civ.P. 1.525 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Fla.R.Civ.P. 1.730(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

. iii.

PRELIMINARY STATEMENT

All references will be the same as in the Initial Brief.

S.R. is used to refer to the Supplemental Record.

ARGUMENT

GREAT AMERICAN HAS FAILED TO ADDRESS THE PRIMARY ISSUE ON

APPEAL – DID THE TRIAL COURT PROPERLY COMPLY WITH THIS

COURT’S MANDATE IN CASE 4D10-5155 BY GRANTING PLAINTIFF A

NEW TRIAL WITH A PREDETERMINED OUTCOME IN ITS FAVOR

Great American has failed to address the primary issue on appeal which is

“Did the trial court comply with the mandate issued by this Court in Case No.

4D10-5155 by granting a new trial with a predetermined outcome in favor of Great

American.”1 Instead Great American discusses what the law is when an appellate

court reverses with general directions for further proceedings. However, this

Court did not remand this case for further proceedings. The final order by this

1 The Final Judgment appealed from provides that “the issue of Plaintiff’s

entitlement to Fl.R.Civ.P 1.730(c) attorney fees has been decided as the final law

of the case since the January 16, 2008 Appellate decision.” (R. 3063) As explained

in the Initial Brief, entitlement without a determination of a fee amount is not

appealable and thus can not be law of the case.

-1-

Court was “Affirmed in part, reversed in part, and remanded.” Cox v. Great

American Ins. Co., 88 So.3d 1048, 1050 (Fla. 4th DCA 2012). The case was

remanded so that an award of appellate attorney’s fees could be entered while

removing all other attorney’s fees and costs.

When this Court remands for a new trial it does so clearly. see Diwaker v.

Montecito Palm Beach Condo. Ass’n, Inc., 143 So.3d 958, 960-61 (Fla. 4th DCA

2014) (“We reverse and remand for the trial court to modify the judgment amount

or explain how the evidence supports the amount reflected in the judgment.”); San

Pedro v. Law Offices of Paul Burkhart, 168 So.3d 299, 300-301 (Fla. 4th DCA

2015) (“we reverse and remand with instructions for the trial court to conduct an

evidentiary hearing on the issue of the amount of fees and costs due on

the charging lien, and to thereafter enter an order containing the necessary findings

and conclusions based upon such evidence.”). Great American never requested a

new trial/evidentiary hearing in its pleadings to this Court in the Fourth Appeal as

was done and rejected in Freiman v. National City Mort. Co., 4D13-2935, 40

Fla.L.Weekly D1634 (Fla. 4th DCA 2015).

The First District in Morton’s of Chicago, Inc. v. Lira, 48 So.3d 76, 80

(Fla. 1st DCA 2010) explained how rarely a retrial should be granted.

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The primary function of this court is to correct errors

committed by the lower tribunal, Florida Department of

Corrections v. Bradley, 510 So.2d 1122, 1124 (Fla. 1st

DCA 1987), not to serve as a conduit for unnecessarily

protracted, piecemeal litigation.

Today we write to clarify that, in future cases, where the

party with the burden of proof fails to establish an

evidentiary basis for the damages awarded at trial, the

general rule applies and (absent an exceptional legal or

factual basis warranting a contrary result) simple reversal

is warranted. See Katz, 546 So.2d at 1048; see

also Evans, 509 So.2d at 1264 (explaining reversal

and remand for new trial should be granted only where

exceptional circumstances warrant such disposition). We

see no legitimate reason to give a party an “extra bite of

the apple” or an “extra inning” after the game has

concluded and it has failed to score a sufficient number

of runs.

There is nothing in the Fourth Appeal that suggested that this Court granted

Great American a new trial/evidentiary hearing or that it was doing anything more

than correcting the trial court’s error in awarding attorney’s fees where the record

showed zero evidence of bad faith.2 Great American’s cite to St. Joe Paper Co. v.

Adkinson, 413 So.2d 107 (Fla. 1st DCA 1982) does not support its position that it

-3-

2 The entire 11 page transcript of the hearing is contained in the record at pages

957 – 967.

was entitled to a new trial The St. Joe Paper case was a case on remand where the

prior appeal “Affirmed in part and reversed in part and remanded for proceedings

consistent herewith.” St. Joe Paper Co. v. Adkinson 400 So.2d 983, 986 (Fla. 1st

DCA 1981). Similarly, the cite to Veiner v. Veiner, 459 So.2d 381, 383 (Fla. 3d

DCA 1984) does not help Great American. The first appeal, Veiner v. Veiner, 364

So.2d 834 (Fla. 3d DCA 1978) involved a question of law, not fact.

The Final Judgment entered on November 24, 2010 was reversed by this

Court in the Fourth Appeal because it failed to comply with the procedural

requirements of specificity and awarded fees for litigating the amount of the fee.

Cox, 88 So.3d at 1049 (Fla. 4th DCA 2012). Cox has continuously argued3 that

the April 19, 2007 and May 10, 2007 orders were not specific enough to grant an

award of attorney’s fees. In the Fourth Appeal the first case that this Court cited

was Johnson v. Bezner, 910 So.2d 398, 401 (Fla. DCA 2005) which Cox argued at

-4-

3 On December 1, 2008 Cox filed a Motion to Determine Extend that Plaintiff May

Seek Attorney’s Fees as Sanctions (R. 1907 – 1927); on April 15, 2010 Cox filed

an Amended Motion in Limine (R. 2182 – 2197); and argued the Johnson v.

Bezner case at the final hearing before Judge Lynch. (R. 2387, line 1 – R. 2390,

line 3)

the first trial was as if the case was written for the facts before the trial court. (R.

2387, lines 10 - 12)

Even though this Court reversed the 2010 Final Judgment in favor of Great

American because it failed to comply with the procedural requirement for

specificity4 Great American goes on for pages that it incurred attorney’s fees

because Cox argued that these 2 orders were not specific enough. What Great

American should recognize is that Cox incurred attorney’s fees and lost the use of

the funds that it agreed to pay her for its original misconduct because Great

American refuses to recognize, as this Court clearly explained to it in the Fourth

Appeal, that the Final Judgment based upon April 19, 2007 order did not contain

the detailed specificity needed to award sanctions. Based on the subsequent case

of Pompano Masonry Corp. v. Anastasi, 125 So.3d 210 (Fla. 4th DCA 2013) it is

clear that this Court did not find any evidentiary evidence or record evidence in the

less than 11 page transcript5 of the hearing that resulted in the April 19, 2007 order

to support an award of attorney’s fees. As Great American admits, the trial court’s

-5-

4 Cox, 88 So.3d at 1049 5 R. 957 – 967.

May 10, 2007 order did not find Cox in contempt so there can be no award of

attorney’s fees. Nical of Palm Beach v, Lewis, 981 So.2d 502, 506 (Fla. 4th DCA

2008). Yet, Great American persists in believing that this Court agreed that it was

entitled to attorney’s fees as a sanction.6

Great American has dragged this case on for 9 years, since February 2007.

While it accuses Cox of causing unnecessary protracted litigation, since the

original appeal filed in this case on August 18, 2014 (R. 3060 -3066) starting the

next day Great American begin filing post judgment motions, causing 362 more

pages to be filed in the trial court. Great American, after it filed its Notice of

Cross-Appeal on December 9, 2014 (R. 3354-3360), on December 11, 2014 filed

in the trial court a Motion for Attorney’s Fees and Costs pursuant to Final

Judgment dated August 12, 2014 (R. 3361-3382) requesting fees for litigating the

issue of fees. The record shows 6 more filings since Great American’s request for

attorney’s fees ending on March 4, 2015 with the trial court striking Great

American’s motion. (R. 3383-3422).

-6-

6 Answer Brief page 30 where Great American states that the issue of entitlement

to sanctions was decided against Cox in the first appeal and the Fourth Appeal.

Great American also mischaracterizes the standard on appeal. Great

American in its Answer Brief at pages 24 and 29 – 30 states that the standard is an

abuse of discretion. This would be true if this was the first trial/evidentiary

hearing or if this Court had authorized a second trial/evidentiary hearing.

However, the question before the court is one of law which is, was the trial court

permitted to grant a second trial/evidentiary hearing based on this Court’s

mandate? Instead of answering this question Great American resorts to personal

attacks. 7

-7-

7 A short response to some of the most negatively portrayed matters is provided:

(a) Prior to the Florida Supreme Court deciding Amerus Life Ins. v. Lait, 2 So.3d

203 (Fla. 2009), the appellate courts, including this one (State Farm Mut. Auto. Ins.

Co. v. Stylianoudakis, 946 So.2d 647, 648 (Fla. 4th DCA2007) held that

Fla.R.Civ.P. 1.525 was a bright line test requiring that the prevailing party file its

motions for attorney’s fees and costs within 30 days of rendition of the matter

giving rise to fees. As Great American notes, Cox’s Motion to Stay Action

Pending Appellate Review (R. 626 – 628) was denied. Great American

characterizes relying on the law in existence at the time should somehow be

construed as attacking and re-litigating Great American’s entitlement to fees.

(b) Great American characterizes bringing judicial error, that of permitting

Great American to withhold the $10,000, to the Court’s attention upon review of a

recent case as attacking an order.

Even after the second improper trial, the trial court reduced the requested

218.4 hours to 135 hours; a reduction of 83.4 hours or 38%. The original Final

Judgment (R. 2288 - 2291) awarded Great American a total of 272.95 hours or

$50,495.75. Thus, assuming that the trial court was correct in granting a second

trial, Great American was only awarded 49.46% of what it was awarded in the

original Final Judgment. This is not a stubborn refusal to follow court orders or

vexatious litigation as Great American alleges. This litigation corrected errors by

the trial court at best to reduce the fee award to the $8,140 for appellate fees and at

worst to reduce it by almost 50%. As the record shows Cox offered Great

American $20,000 on October 30, 2008 (R. 2480 – 2482)8, which was before the

appeal that resulted in an award of appellate attorney fees. The most recent final

judgment entered on August 13, 2014 (R. 3055 – 3059) awarded Plaintiff

$24,975.00 for attorney’s fees as sanctions. Had Cox’s offer been accepted

Plaintiff would not have spent the extra approximate $25,000 in trying to obtain

more than the offered $20,000, would not have spent $10,000 on expert witness

fees, and would not have spent almost $50,000 in retrying the case. Unfortunately,

-8-

8 As noted by attorney Tepps to Judge Lynch, in discussing another settlement

proposal Cox was not agreeing that any fees were owed but was attempting to

resolve the case. (R. 2355, line 24 – 2356, line 21)

Great American believed that it was entitled to fees where no evidence of bad faith

was introduced into evidence, fees for fees, fees for matters after May 10, 2007

when the release was signed concluding the settlement agreement, fees for a

contempt proceeding where Cox was not held in contempt --- so asked for “the

moon”. Cox has been forced to defend against these outlandish fee demands.

Great American argues that the trial judge’s discretionary ruling should only

be disturbed when its decision fails to satisfy a reasonableness test. Answer Brief

at page 34. Assuming that this Court did grant a new trial, there is no

jurisprudence in the last two hundred years that finds that a trial with a

predetermined winner and loser is “reasonable”. While Great American takes

offense at the characterization that such a trial is akin to the Salem Witch Trials,

that is the last time in this country’s history where the defendant was 100%

guaranteed to lose. Great American argues that this predetermined outcome based

on a completely new trial is exactly what this Court ordered. Judge Rodriguez

bought this “law of the case” argument as shown in the second and third

paragraphs of his Final Judgment (R. 3063 - 3064).

-9-

Great American recites9 this Court’s finding that the Final Judgment in the

last appeal should make “specific factual findings detailing Cox’s breach or failure

to perform under the mediation agreement and identify those attorney’s fees and

costs that Great American incurred as a result of such conduct.” In the latest

Final Judgment dated August 12, 2014 (R. 3055- 3059), the trial court throws out 3

“factual” findings and then throws out a number of hours without any correlation

between the two. Great American does not show this Court how the trial court

determined exactly what hours were incurred for nor does it try to. The Answer

Brief on page 33 provides simply that the trial court made specific factual findings;

it does not attempt to identify the attorney’s fees and costs that Great American

incurred as a result of such conduct. Cox, 88 So.3d at 1049. The trial court said

that x, y, and z was done in bad faith but then failed to connect the dots as to why

Great American incurred any attorney’s fees or costs because of x, y, and z.

The Final Judgment dated August 12, 2014 states that “Judge Streitfeld

incorporated the release in his order to end this issue in 2007.” (R. 3065).

However, the Final Judgment then goes on to award attorney’s fees for time after

-10-

9 Answer Brief page 21.

that May 10, 2007 order which did not find Cox in contempt and without

explanation as to how any fees were related to the matters prior to the April 19,

2007 order. The April 19, 2007 order was the only order based upon a motion for

sanctions pursuant to Fla.R.Civ.P. 1.730(c).

Great American states that it “painstakingly went through the amount of

work” incurred due to Cox’s breach of the settlement agreement.10 What the

record shows is that Great American simply supplied its time records to the trial

court (R. at 3250, lines 15 – 18) (S.R. 839-885) and then read from those time

records (R. 3242, Line 13 – R. 3260, line 7).

Great American while finally getting the law of the case doctrine correct in

its Memorandum Regarding Entitlement to Attorney’s Fees (R.3037 - 3045), then

argues to this Court that the first appeal on whether or not a settlement agreement

existed was actually more; that this Court affirmed its award of entitlement to

sanctions even through an amount of attorney’s fees had yet to be determined.

Several times a year there are appellate decisions that without a determination of

amount an award as to entitlement to fees is not appealable.

-11-

10 Answer Brief at page 37.

Great American recites part of the May 16, 2014 trial court order that it

would not reconsider the factual findings of Judge Streitfeld’s April 17, 2007 (sic)

order as the facts are “etched in stone as law of the case”. (Answer Brief at page

21). This legal conclusion about law of the case given that entitlement by itself

could not be appealed is clearly error. More clearly error is that this Court in the

last appeal reversed the Final Judgment which was based upon the April 19, 2007

and May 10, 2007 orders without directing that any further evidence be taken.

GREAT AMERICAN WAS PERMITTED TO COMMIT A TRIAL BY

AMBUSH

Great American states to this Court that it was seeking judicial notice of the

various pleadings and materials under Section 90.202, Fla. Stat. so that the notice

provisions of Section 90.203, Fla. Stat. are inapplicable.11 This Court in The

Scripps Institute, Inc. v. The Scripps Institute, 916 So.2d 988, 990 (Fla. 4th DCA

2005) in discussing judicial notice under Section 90.202, Fla. Stat. said “certain

procedural requirements must be met prior to the trial court taking judicial notice;

-12-

11 Answer Brief at page 39.

the most important prerequisite being notice to the opposing party”. The failure to

provide such notice is reversible error. Id. at 991.

Concerning the lack of complying with the April 7, 2014 order (R. 2947)

requiring that the parties supply each other and the Court with an affidavit listing

its evidence, Great American explains that the trial court meant that in preparation

for the upcoming evidentiary hearing/new trial that its April 7, 2014 order (R.

2947) only required that it supply its attorney’s fees affidavit.12 Over objection13

Great American introduced into evidence “the filings, motions, responses, and

pleadings and so forth that contain the documents, the orders, the emails and so

forth…” (R. 3095, lines 9 – 13) (S.R. 246-838). If the April 7, 2014 order was

just so that Great American was to supply its attorney’s fees affidavit, why then did

it introduce “filings, motions, responses, pleadings, orders and emails”?

Great American then explains that Cox knew what evidence Great American

would be using at the one hour hearing because she had copies of the pleadings

-13-

12 Answer Brief at page 39.

13 R. 3095, line 20.

filed in the last 8 years. If Cox and the trial court knew that all pleadings over the

last 8 years were going to be introduced as evidence then how could the hearing

last for just an hour? The trial court clearly was requesting the parties limit the

evidence and provide notice to each other of what that evidence would be.

EXPERT WITNESS FEES WERE NOT PROPERLY AWARDED

Great American argues that this Court in the Fourth Appeal did not reverse

the award of costs. This Court also did not affirm the award of costs.

Costs per Section 57.041 Fla. Stat. are awarded to the prevailing party. Until

the trial court properly eliminated any attorney’s fees for litigating the amount of

the attorney’s fees, removed the attorney’s fees for failing to prove their case and

awarded the uncontested $8,140 for appellate attorney fees and compared that to

the $10,000 plus interest owed to Cox, the trial court could not determine who was

entitled to their costs. Even without interest it is clear that $10,000 exceeds

$8,140, which makes Cox the prevailing party in this now 9 year dispute.

Assuming that Great American could be characterized as the prevailing

party, as argued in the Initial Brief, Great American did not break out the award of

-14-

expert witness fees for the time spent on recoverable matters. Thus, Great

American is not entitled to the award of any expert witness fees.

GREAT AMERICAN IS NOT ENTITLED TO PRE-JUDGMENT INTEREST

WHILE COX IS ENTITLED

Attorney’s fees are not damages. Price v. Tyler, 890 So.2d 246, 251 (Fla.

2004). Thus, Great American’s arguments about pre-judgment interest and

damages are incorrect. Bosem v. Musa Holdings, Inc., 46 So.3d 42 (Fla. 2010)

involved a tort case for the unauthorized use of a likeness. Argonuet Ins. Co. v.

May Plumbing Co., 474 So.2d 212 (Fla. 1985) involved an insurance contract

dispute. Neither case changes the Florida Supreme Court and other Florida

appellate courts numerous holdings that attorney’s fees are not damages.14

Great American never (correctly) raised the issue at the first trial or the

second trial of entitlement to pre-judgment interest; raising it for the first time in a

-15-

14 Admittedly, sometimes attorney’s fees can be special damages but special

damages must be plead, as in a slander of title case.

post final judgment motion. Had Great American raised this issue it would have

to demonstrate when various fees were paid over the eight (8) year history of this

case. Great American presented no such evidence, simply producing its attorney

time records, so any prejudgment interest would be speculative. Even if such

evidence was presented, Great American should not be rewarded for its refusal to

agree to sufficient time for a hearing so that hearings on its motion to enforce the

mandate had to be heard over a 2 year period. As Great American states in its

Answer Brief on page 19 hearings were held on July 22, 2013; April 7, 2014; and

May 5, 2015. Hearings were also held on July 22, 2014 and August 11, 2014.

Great American argues15 that the interest costs associated with the delay of the

court process can be mitigated by payment; as previously noted Great American’s

award has been reduced by almost 50% so what would a proper payment amount

be? Further, Cox did tender an offer of settlement for the $8,140 for appellate

attorney fees (R. 2490 – 2492) to stop the accrual of any interest.

-16-

15 Answer Brief at page 43.

Great American states that it applied the $10,000 towards its fees and

costs.16 Judge Streitfeld’s original April 19, 2007 order did not return the funds to

Great American to use as it wanted but stated that it could hold those funds. (R.

565-566) Taking those funds and applying them as Great American deemed

appropriate amounts to a conversion. While Cox brought the release of these funds

to this Court, this Court never awarded Great American appellate attorney fees

based on this appeal as Great American states in its Answer Brief at page 42.

Great American had the benefit and use of the $10,000 since 2007. As cited

in the Initial Brief the case of Garcia v. Stewart, 961 So.2d 1025, 1027 (Fla. 4th

DCA 2007), which held that when funds are withheld from the rightful party, even

by court order, interest is owed on those funds, controls.

CONCLUSION

The law of the case as contained in the Fourth Appeal is that Great

American failed to prove its case that Cox showed bad faith in breaching the

settlement agreement. This Court did not grant a rehearing on any matter and

assuming that it did, the trial court abused its discretion in finding that the law of

-17-

16 Answer Brief page 41.

the case was that Great American was entitled to fees for the breach of the

settlement agreement thus prohibiting it from considering any evidence that what

occurred was a dispute between parties as to the terms of the release with Great

American acting in bad faith by first communicating the acceptable release terms

in a motion for sanctions. This Court should strike the award of trial court

attorney’s fees and expert witness fees to Great American from the August 12,

2014 Final Judgment and direct the trial court to enter a Final Judgment in favor of

Cox for the $10,000 Great American agreed to pay her for its wrongdoing together

with interest at 11% from April 19, 2007 until the date of the judgment less the

$8,140 in agreed to appellate attorney’s fees with interest at 6% to March 26, 2012

the date of the offer of judgment.

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy has been furnished by email on

August 8, 2016 to:

Kenneth V. Hemmerle, II Richard P. McCuster, Jr.

1322 N.E. 4th Avenue #E 922 S.E. 4th Avenue

Fort Lauderdale, FL 33304 Delray Beach, FL 33483

Email: kvhiilaw@aol.com Email: rrmuccusker@aol.com

-18-

CERTIFICATE OF FONT COMPLIANCE

I hereby certify that Appellant’s Reply Brief and Cross-Answer Brief

has been submitted in Times New Roman 14-point font in compliance with the

requirements of Fla.R.App.P. 9.210(a)(2).

___/s/ Jerome L. Tepps____________________________

Jerome L. Tepps, Esq.

Fla. Bar No. 283045

4300 North University Drive

Suite C-102

Sunrise, FL 33351

Email: jerome@teppslawfirm.com

Phone: (954) 565-3231 x 4

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