          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                 _____________________________

                         No. 1D17-894
                 _____________________________

PETER MAROCCO,

    Appellant/Cross-Appellee,

    v.

RUSSELL BRABEC, ROSE MARIE
BRABEC, and DESIGN & MORE,
INC., a Florida corporation,

    Appellees/Cross-Appellants.
                _____________________________


On appeal from the Circuit Court for Leon County.
Karen Gievers, Judge.


                           April 5, 2019


WETHERELL, J.

    This case arose out of a dispute over interior design and
construction work performed by Appellees on Appellant Peter
Marocco’s properties in 2008. The litigation in the trial court,
which spanned more than eight years (and four circuit judges), was
acrimonious and took many twists and turns, 1 most of which have



    1  For example, in case number 1D13-3314, we per curiam
affirmed the dismissal of a suit filed by Marocco against Appellees’
attorney related to the attorney’s representation of Appellees in
no bearing on the issues in this appeal and cross-appeal. Thus,
what follows is only a brief overview of the facts and the
proceedings in the trial court.

             Factual and Procedural Background

     In July 2008, while in the process of remodeling his two
properties in Tallahassee, Marocco went overseas for his
employment. His neighbors, Russell and Rose Marie Brabec,
offered to act as liaisons for Marocco with the contractors and
laborers doing the remodeling work to ensure that the work was
completed while Marocco was away. However, upon his return
home, Marocco discovered that the Brabecs and their interior
design firm, Design & More, Inc. (collectively, “Appellees”), had
performed—and billed him for—significantly more work on the
properties than he had authorized.

     Thereafter, Marocco sued Appellees for damages, claiming
that they breached their fiduciary duty to him, exceeded the
authorized scope of work, acted negligently, and slandered his title
by recording fraudulent liens. The damages sought by Marocco
included the wages he allegedly lost because the liens recorded by
Appellees on his properties adversely affected his top secret
security clearance, 2 which in turn, cost him lucrative jobs with
government contractors working on classified projects.

    Appellees responded that all of the work they performed on
Marocco’s properties was done with his consent, and they filed
compulsory counterclaims for breach of contract, unjust
enrichment, and lien foreclosure through which they sought to
recover payment for their work. They also filed a permissive


this case. See Marocco v. Dunlap, 2014 WL 2809093 (Fla. 1st DCA
June 23, 2014).
    2  Marocco had a SCI (sensitive compartmented information)
top secret security clearance which, according to the security
expert who testified at trial, is the highest security clearance level
and gave Marocco access to classified information that was only
accessible on a “need-to-know basis.”

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counterclaim alleging that Marocco committed fraud during the
litigation in order to get a prior judge off the case, 3 but the trial
court severed that counterclaim from the remaining claims shortly
before trial and dismissed it “with leave to amend with the
requisite specificity.”

      After a week-long trial, the jury found in favor of Marocco on
his claims for breach of fiduciary duty, negligence, and slander of
title. The jury also found in favor of Marocco on Appellees’ lien
foreclosure and breach of contract counterclaims, but the jury
found in favor of Design & More on its counterclaim for unjust
enrichment. The jury awarded Marocco a total of $511,625 on his
claims and awarded Design & More $2,505.95 on its counterclaim.

      The award to Marocco was comprised of $1,125 in damages on
his breach of fiduciary duty and negligence claims against Mr.
Brabec and $510,500 in damages (for his lost wages) on his slander
of title claim against Design & More. No damages were awarded
against Mrs. Brabec.

    After the trial, and without a motion from Appellees, 4 the trial
court entered what amounts to a sua sponte judgment
notwithstanding the verdict (JNOV) on Marocco’s claim for lost
wages based on the court’s determination that (1) the lost wages


    3  Specifically, Appellees alleged that Marocco conspired with
a third-party to dupe them into hiring the prior judge’s wife, who
was an artist, to consult with them on what turned out to be a
sham project in order to give Marocco grounds for a motion to
disqualify the prior judge.
    4  Appellees pointed out at oral argument that they did not
have a chance to file a post-verdict motion because less than a
week after the trial ended, the judge convened a hearing at which
she announced her decision not to include the lost wages awarded
by the jury in the final judgment. Although Marocco was given an
opportunity to present argument (or, as the judge called it,
“statements for the record”) after the judge announced her ruling,
the post-trial procedure followed by the judge in this case was
unorthodox, at best.

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claim was barred by the sword and shield doctrine 5 and (2)
Marocco’s lost wages were not proximately caused 6 by Appellees’
wrongdoing and instead “were the direct result of his own decision
. . . to keep litigating” after the case had conditionally settled. The
trial court entered final judgment in accordance with the
remainder of the jury verdict, awarding $1,125 to Marocco and
$2,505.95 to Design & More. The trial court declined to award
attorney’s fees to either party.

    This appeal and cross appeal followed.

                              Analysis

     Marocco raises seven issues on appeal: (1) the trial court erred
in sua sponte raising the sword and shield doctrine and striking
the jury award for lost wages; (2) the trial court erred in striking
the jury award for lost wages based on a lack of proximate cause;
(3) the trial court erred in relying on section 713.28, Florida
Statutes, to strike the lost wages award; (4) the trial court erred in
denying attorney’s fees and costs to which a predecessor judge had
previously awarded entitlement; (5) the trial court erred in
denying attorney’s fees and costs to Marocco pursuant to section
713.29, Florida Statutes; (6) the trial court erred in denying
attorney’s fees and costs to Marocco pursuant to section 713.31,
Florida Statutes; and (7) the trial court erred in denying Marocco’s

    5   “[T]he ‘sword and shield’ metaphor . . . embraces the rule
‘that a plaintiff may not seek affirmative relief in a civil action and
then invoke the Fifth Amendment to avoid giving discovery in
matters pertinent to the litigation.’” DeLisi v. Bankers Ins. Co.,
436 So. 2d 1099, 1100 (Fla. 4th DCA 1983) (quoting City of St.
Petersburg v. Houghton, 362 So.2d 681, 685 (Fla. 2d DCA 1978)).

    6  Although the final judgment also described the lost wages
as “far beyond the edge of the Palsgraf [v. Long Island Railroad
Co., 162 N.E. 99 (N.Y. 1928)] zone of reasonable foreseeability,” it
is clear from the judgment as a whole that the lost wages were
stricken based on the trial judge’s determination that they were
not proximately caused by the liens, not because lost wages are not
recoverable as a matter of law in this context.

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motion for summary judgment on Appellees’ counterclaim for
unjust enrichment. On cross-appeal, Appellees raise only one
issue: the trial court erred in dismissing their fraud counterclaim.

     We affirm issues 4 and 7 without discussion, and we affirm
issue 3 because, as Appellees correctly point out in their answer
brief, the trial court did not rely on section 713.28, Florida
Statutes, to strike the lost wages award. We dismiss the cross-
appeal for lack of jurisdiction because an order dismissing a
permissive counterclaim with leave to amend is a non-appealable
nonfinal order, see Minty v. Meister Financialgroup, Inc., 97 So. 3d
926, 932 (Fla. 4th DCA 2012), and we reverse issues 1, 2, 5, and 6
for the reasons that follow.

     On issue 1, we agree with Marocco that the trial court erred
in raising the sword and shield doctrine sua sponte. The trial
court’s role is to adjudicate the case by ruling on the issues raised
by the parties, not to litigate the case by raising issues for the
parties. See, e.g., Shore Mariner Condo. Ass’n v. Antonious, 722
So. 2d 247, 248 (Fla. 2d DCA 1998) (“Trial judges must studiously
avoid the appearance of favoring one party in a lawsuit, and
suggesting to counsel or a party how to proceed strategically
constitutes a breach of this principle.”); Chastine v. Broome, 629
So. 2d 293, 295 (Fla. 4th DCA 1993) (“Obviously, the trial judge
serves as the neutral arbiter in the proceedings and must not enter
the fray by giving ‘tips’ to either side.”). Here, the record reflects
that the sword and shield doctrine had not been raised in this case
until the trial judge interjected it at a pretrial conference three
weeks before the trial was set to begin. 7 We recognize that
Appellees subsequently raised the doctrine in their motions for
directed verdict at trial, but that was only after the trial judge
foreshadowed her post-trial ruling at another pretrial conference
by expressing her unsolicited opinion that there had been a “major
violation of [the sword and shield doctrine] in this case.”




    7  At the pretrial conference where the trial judge first raised
the sword and shield doctrine, she candidly acknowledged that “I
don’t have any motion [on the issue] in front of me at this point.”

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     We also agree with Marocco that the trial court erred in
applying the sword and shield doctrine in this case because,
contrary to the finding in the final judgment that Marocco
“block[ed] discovery” pertinent to his lost wages claim, the record
shows that Marocco did not shield himself from the discovery of
information relevant to that claim. Although early in the case
Marocco did seek a protective order for all information related to
his employment, no order was ever entered, and Appellees were
ultimately able to depose Marocco and obtain relevant financial
documents prior to trial. Although the disclosures and deposition
occurred shortly before trial and well after the discovery cut-off,
Appellees did not seek a continuance of the trial to obtain
additional discovery or prepare for trial, and the trial court did not
find that Appellees were prejudiced by the late discovery. 8 Under
these circumstances, it was an abuse of discretion for the trial
court to strike the lost wages claim post-trial. Cf. Binger v. King
Pest Control, 401 So. 2d 1310, 1313-14 (Fla. 1981) (explaining that
the trial court has discretion to exclude evidence that is not timely
disclosed during discovery if the resulting prejudice to the
opposing party cannot otherwise be cured); Village Inn Restaurant
v. Aridi, 543 So. 2d 778, 782 (Fla. 1st DCA 1989) (explaining that
sanctions short of dismissal may be imposed under the sword and
shield doctrine).

     On issue 2, we agree with Marocco that the trial court erred
in setting aside the jury’s determination that Marocco’s lost wages
were proximately caused by Appellees’ actions. Evidence was
presented at trial from which the jury could—and apparently did—
find that Marocco’s lost wages were caused by the liens recorded
by Appellees. Specifically, the jury heard evidence that Marocco
informed Mr. Brabec several months before Appellees filed their
liens that liens recorded in the public record would adversely
impact his employment. 9 Moreover, the court’s post-trial ruling

    8   We have not overlooked the finding in the final judgment
that the financial discovery provided by Marocco was essentially
too little, too late, but the record simply does not support that
characterization.
    9 Appellees argued that they could not have possibly known
the extent of the impact because Marocco did not disclose the
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was not based on a consideration of the evidence presented to the
jury, but rather on the court’s opinion—informed by “the court’s
knowledge of the rest of the picture”—that Marocco’s lost wages
were solely caused by his failure to settle the case. If it is improper
for a trial court to reweigh the evidence presented to the jury when
ruling on a post-trial motion for JNOV—and it is, see New
Jerusalem Church of God, Inc. v. Sneads Community Church, Inc.,
147 So. 3d 25 (Fla. 1st DCA 2013), it is equally, if not more,
inappropriate for the court to grant a JNOV sua sponte based on
information that was not presented to the jury.

     Based on the foregoing, we reverse the JNOV granted by the
trial court with respect to Marocco’s lost wages and remand for
entry of an amended final judgment in accordance with the jury
verdict on that issue.

     On issue 5, we disagree with Marocco’s argument that he was
entitled to an award of attorney’s fees under section 713.29,
Florida Statutes, simply because he successfully defeated
Appellees’ efforts to foreclose their liens. Section 713.29 provides
for an award of attorney’s fees to the prevailing party in an action
to enforce a lien, but “prevailing party” has been construed to mean
the party who prevails on the “significant issues” in the entire
litigation, not just the lien claim. See Trytek v. Gale Indus., Inc., 3
So. 3d 1194, 1202 (Fla. 2009); Prosperi v. Code, Inc., 626 So. 2d
1360, 1362-63 (Fla. 1993).

    Here, the trial court did not necessarily abuse its discretion in
denying attorney’s fees to Marocco under the “significant issues”
test because even though he successfully defended against
Appellees’ lien foreclosure claim, the jury found in favor of Design


nature of his work, but that is not the issue. Rather, the issue is
whether, based on the evidence presented, it was foreseeable that
Marocco would suffer some amount of lost wages based on the filing
of the liens. In this context, foreseeability was a fact question for
the jury. See McCain v. Fla. Power Corp., 593 So. 2d 500, 504 (Fla.
1992) (explaining that “the question of foreseeability as it relates
to proximate causation generally must be left to the fact-finder to
resolve”).

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& More on its counterclaim for unjust enrichment. See Prosperi,
626 So. 2d at 1362 (“[I]t was obviously not the intent of the
legislature to award attorney’s fees to a defendant in a mechanics’
lien foreclosure merely because he successfully defends against the
impression of a lien yet is nevertheless found liable in damages, in
the same case, for labor and/or materials furnished for his
benefit.”) (quoting Emery v. Int’l Glass & Mfg., Inc., 249 So. 2d 496,
500 (Fla. 2d DCA 1971)). Nevertheless, because our disposition on
issues 1 and 2 might impact the balancing required under the
significant issues test, we reverse the denial of attorney’s fees
under section 713.29 and remand for reconsideration in light of
this opinion.

     On issue 6, we disagree with Marocco’s argument that he was
entitled to an award of attorney’s fees under section 713.31,
Florida Statutes, simply because the jury found that Appellees
exaggerated the amount of their liens. Section 713.31 provides for
an award of attorney’s fees to the party who prevails in an action
to foreclose a fraudulent lien and it defines “fraudulent lien” to
include liens in which the lienor has willfully exaggerated the
amount of the lien. See § 713.31(2)(a), (2)(c), Fla. Stat. However,
an award of prevailing party attorney’s fees under this statute is
subject to the same “significant issues” test that governs an award
of fees under section 713.29. See Newman v. Guerra, 208 So. 3d
314, 317-19 (Fla. 4th DCA 2017) (holding that the “significant
issues” test adopted in Trytek and Prosperi also applies to motions
seeking attorney’s fees under section 713.31). Accordingly,
although the trial court did not necessarily abuse its discretion in
determining that Marocco was not entitled to attorney’s fees under
section 713.31, we reverse and remand for reconsideration in light
of this opinion because our disposition on issues 1 and 2 might
impact the balancing required under the significant issues test.

                            Conclusion

    Based on the foregoing, we reverse the final judgment and
remand for entry of an amended final judgment in accordance with
the jury’s verdict in its entirety; reverse the orders denying
Marocco’s motions for attorney’s fees and remand for
reconsideration in light of this opinion; and dismiss Appellees’


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cross-appeal for lack of jurisdiction.   In all other respects, we
affirm.

   AFFIRMED in part; REVERSED in part; DISMISSED in part;
REMANDED with directions.

OSTERHAUS and WINOKUR, JJ., concur.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Mark V. Murray, Tallahassee; and Terry P. Roberts of Law Office
of Terry P. Roberts, Tallahassee, for Appellant/Cross-Appellee.

Davisson F. Dunlap, Jr., of Dunlap & Shipman, P.A., Tallahassee,
for Appellees/Cross-Appellants.




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