Filing # 197028997 E-Filed 04/25/2024 04:48:07 PM
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`IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT,
`IN AND FOR PALM BEACH COUNTY, FLORIDA
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`CASE NO.: 2023-CA-001432
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`Plaintiff,
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`CHENEY BROS., INC.,
`a Florida Corporation,
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`
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`vs.
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`WESLEY RICHARDS,
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`Defendant.
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`____________________________________________/
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`PLAINTIFF’S SECOND MOTION FOR SANCTIONS INCLUDING ATTORNEYS’ FEES
`AND COSTS PURSUANT TO SECTION 57.105, FLORIDA STATUTES
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`Plaintiff, CHENEY BROTHERS INC. (hereinafter "CBI"), pursuant to Fla. Stat.
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`NOT A CERTIFIED COPY
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`§57.105, hereby moves this Honorable Court for an Order Awarding Sanctions in the form
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`of Attorneys' Fees and Costs and states as follows:
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`BACKGROUND
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`1.
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`2.
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`3.
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`CBI and Defendant, WESLEY RICHARDS
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`(hereinafter,
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`“Defendant” or
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`“Richards”), became embroiled in a dispute over payment of pilot training fees in
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`early 2023.
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`Prior to engaging in litigation, CBI sent Richards a demand letter dated February
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`3, 2024. See attached Exhibit “A.”
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`Richards hired counsel and responded to CBI’s demand on February 8, 2023 (the
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`“Letter”). The Letter included threats that Richards would seek his attorneys’ fees
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`and costs if a lawsuit was filed. See attached Exhibit “B.”
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`4.
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`The Letter made no reference to Fla. Stat. Sec. 57.105 nor did it provide CBI with
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`any kind of safe harbor, twenty-one (21) day notice, as provided by Fla. Stat. sec.
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`*** FILED: PALM BEACH COUNTY, FL JOSEPH ABRUZZO, CLERK. 04/25/2024 04:48:07 PM ***
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`

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`57.105(4).
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`CASE NO.: 2023-CA-001432
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`The Letter was emailed before any lawsuit was ever filed by CBI.
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`CBI filed a multi-count Complaint against Defendant, on February 15, 2023.
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`Thereafter, following efforts by CBI to amend its Complaint after two (2) prior
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`dismissals with leave to amend, CBI chose to take a voluntary dismissal of the
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`action on January 16, 2024, rather than file a Second Amended Complaint.
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`Thereafter, Richards, on February 2, 2024 served a Motion for Attorneys’ Fees
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`(the “Motion”) pursuant to Fla. Stat. Sec. 57.105 via email, and simply stated that
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`it would be filed in 21 days. See attached Exhibits “C” and “D.”
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`At the time the Defendant’s Motion and email were sent, there was no longer a
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`pending lawsuit.
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`5.
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`6.
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`7.
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`8.
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`9.
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`10.
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`11.
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`Thereafter, Defendant filed its Amended Motion for Attorneys’ Fees (the “Amended
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`Motion”) on February 26, 2024. See attached Exhibit “E.”
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`The Amended Motion is just as deficient the original Motion because it simply
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`states that Defendant is entitled to Fla. Stat. Sec. 57.105 Attorney’s Fees because
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`the Motion was timely filed under Fla. R. Civ. P. 1.525.
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`12. Defendant continues to ignore the procedural requirements necessary to perfect a
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`claim for Attorney’s Fees under Fla. Stat. Sec. 57.105.
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`13. As argued below, there is no basis in law or fact for the Amended Motion as
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`Defendant has failed to comply with the notice and pleading requirements of Fla.
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`Stat. sec. 57.105.
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`14. Richards has been placed on Notice of the deficiencies of the Amended Motion as
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`CBI served a copy of this Motion, via email, in compliance with the applicable
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`2
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`CASE NO.: 2023-CA-001432
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`Florida Rules of Civil Procedure along with the required twenty-one (21) day “safe
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`harbor” letter as required by Fla. Stat. sec. 57.105(4). See attached Exhibit “F.”
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`15.
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`Twenty-one (21) days have elapsed since the service of CBI’s safe harbor letter
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`and proposed Motion for Attorneys’ fees and Richards has failed to withdraw or
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`dismiss the Amended Motion, as requested in CBI’s safe harbor letter.
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`16.
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`The law and facts support CBI’s position that there is no basis for Defendant’s
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`Motion or the Amended Motion.
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`17. Based upon notice provided to Richards and his counsel, they knew or should have
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`known that there was no legal or factual basis for the Motion or the Amended
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`Motion.
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`18. Accordingly, CBI is entitled to its reasonable attorneys’ fees and costs, an amount
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`to be determined after entitlement is confirmed, as a sanction for Defendant’s
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`frivolous improper, and unsupported Motion for Fla. Stat. sec 57.105 Attorneys’
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`Fees and Amended Motion for Attorneys’ Fees.
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`ARGUMENT
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`Richards has failed to follow the procedures set forth in the Statute necessary to
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`advance any claim for attorneys’ fees and costs in this case. According to the statute,
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`NOT A CERTIFIED COPY
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`(1)
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`Upon the . . . 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:
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`(a)
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` Was not supported by the material facts necessary to
`establish the claim or defense; or
` Would not be supported by the application of then-
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`(b)
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`3
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`existing law to those material facts.
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`*
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`*
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`*
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`CASE NO.: 2023-CA-001432
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`(4)
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` A motion by a party seeking sanctions under this section must
`be served but may not be filed with or presented to the court
`unless, within 21 days after service of the motion, the
`challenged paper, claim, defense, contention, allegation, or
`denial is not withdrawn or appropriately corrected.
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`Fla. Stat. sec. 57.105 (emphasis added).
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`NOT A CERTIFIED COPY
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`The Statute requires strict compliance. Statutes providing for the recovery of
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`attorney's fees are in derogation of the common law, and therefore, movants seeking
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`recovery of fees pursuant to such statutes, and those procedural rules implementing
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`them, must strictly comply with the requirements outlined therein. See Anchor Towing,
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`Inc. v. Fla. Dep't of Transp., 10 So.3d 670 (Fla. 3d DCA 2009); Nathan v. Bates, 998
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`So.2d 1178 (Fla. 3d DCA 2008). Pursuant to the procedure expressly outlined in the
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`Statute, before a movant may file a sanctions motion with the court, the non-moving party
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`must have at least twenty-one days (the “safe harbor” period) to evaluate the efficacy of
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`the motion and to determine whether to withdraw the challenged paper, claim, defense,
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`contention, allegation or denial. Richards has failed to comply in all respects.
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`There was no civil proceeding pending at the time Richards sent his alleged “Safe
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`Harbor Letter” (the “Letter”) via email to CBI on February 8, 2023 in which he claims to
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`want to recover attorneys’ fees. Indeed, the letter states that “if legal proceedings are
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`initiated, we will defend vigorously and seek fees and costs for having to do so.”
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`Defendant’s Motion, Exhibit D (emphasis added). Richards’ letter essentially admits his
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`non-compliance with the Statute as there was no civil proceeding pending at the time of
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`the Letter. The facts also bear this out; CBI’s Complaint was not filed until February 15,
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`CASE NO.: 2023-CA-001432
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`2023. Therefore, it was an impossibility for CBI to have come under the ambit of the
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`Statute, when there was not even a civil proceeding pending at the time Defendant sent
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`the Letter. CBI had not filed a Complaint with the court at the time of the Letter; therefore,
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`there was nothing to withdraw.
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`Moreover, the Statute requires that the Letter provide the party with twenty-one
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`(21) days’ notice to withdraw “the challenged paper, claim, defense, contention,
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`allegation, or denial.” The Letter that is attached to the Defendant’s Motion makes no
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`reference to a 21-day safe harbor period nor does it even reference the Statute. Finally,
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`the Letter, on its face, does not reflect that it was served via email with a Motion as
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`required by the Statute.
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`NOT A CERTIFIED COPY
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`Finally, the Amended Motion, is equally deficient as there was never a proper
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`preservation of the right to seek fees under Fla. Stat. Sec. 57.105. Moreover, Defendant’s
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`argument that the Motion was timely served under Fla. R. Civ. P. 1.525 is pointless
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`because of the failure to follow the appropriate procedures as set forth supra. Any effort
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`by Defendant to advance a claim under Fla. Stat. Sec. 57.105 became impossible as a
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`result of the failure to provide a procedurally proper Safe Harbor Letter and accompanying
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`Motion. Anything that happened beyond that is irrelevant. Moreover, Defendant cannot
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`otherwise point to any contract or statute that would entitle him to recover attorney’s fees
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`under Fla. R. Civ. P. 1.525.
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`In short, Richards’ attempt to apply the Statute by serving the Letter and Motion
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`after dismissal of the lawsuit negates any possibility of compliance by CBI as the case
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`was voluntarily dismissed before he ever served the Motion and 21-day notice on
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`February 2, 2024. Under Richards’ construction of the Statute, there is no possibly to
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`5
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`2023-CA-001432
`CASE NO.:
`prematurely end any alleged meritless litigation as 1) the Letter was served before there
`was a lawsuit 2) the litigation was over before he ever took steps under the Statute to
`pursue attorneys’ fees and costs and 3) the Amended Motion fails to cure any of these
`deficiencies. Richards’ interpretation of the Statute defeats its very purpose, in contrast
`to the correct and proper procedure undertaken by CBI herein.
`WHEREFORE, Plaintiff, CHENEY BROTHERS., INC., respectfully requests this
`Honorable Court for the entry an Order Awarding Attorneys’ Fees and Costs be paid by
`Defendant and its attorneys as a sanction under Fla. Stat. Sec. 57.105 and any further
`relief this Court deems just, proper and equitable.
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`NOT A CERTIFIED COPY
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`CERTIFICATE OF SERVICE
`I HEREBY CERTIFY that a true and correct copy of the foregoing was served via
`e-portal this 25th day of April, 2024 to: Beth Coke, Esq., Coke Employment Law, 131 N.
`2nd Street, Suite 204, Fort Pierce, FL 34950 (beth@cokeemploymentlaw.com).
`/s/ Charles Andrew Tharp_
`Charles Andrew Tharp, Esquire
`Florida Bar No.: 0746134
`WYLAND & TADROS, LLP
`Attorneys for Defendant
`2505 Metrocentre Boulevard, 2nd Floor
`West Palm Beach, FL 33407
`(561) 275-2990 - Office
`(561)275-2991 - Facsimile
`Atharp@wylandtadros.com - primary
`Wstraus@wylandtadros.com-secon da ry
`
`By:
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`6
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`

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`Exhibit
`A
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`NOT A CERTIFIED COPY
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`

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`CHENEY BROTHERS, INC.
`FOOD SERVICE DISTRIBUTORS
`
`ONE CHENEY WAY
`RIVIERA BEACH. FL. 33404-7000
`www.chenevbrolhers.com
`
`CheneyBrothers
`
`Rachelle R McBride. Esq.
`(icnci al Counsel
`
`561 -845-4745
`Direct I me
`561 -684-7935
`Fax
`RachelkA Fit hener Brothers com
`
`February 3, 2022
`
`Via Federal Express
`Wesley Richards
`1001 SW Charcoal Ave.
`Port St. Lucie, FL 34953
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`NOT A CERTIFIED COPY
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`Re: Cheney Bros., Inc. v. Wesley Richards
`
`Dear Mr. Richards:
`On behalf of Cheney Bros., Inc. (d/b/a Cheney Brothers), I forward this correspondence
`demanding immediate resolution of a serious matter.
`You were employed as a pilot since approximately December of 2018. During that time. Cheney
`Brothers has provided you with generous compensation, valuable experience and training, and a
`professional work environment.
`By the last quarter of 2022, it was determined that purchase or lease of a new aircraft would be
`necessary. Ultimately, a Citation Sovereign was purchased. You were well aware of the need for
`and the ultimate purchase of same. You were also well aware that you and the other pilots would
`need to receive comprehensive training and certification in order to operate the new aircraft.
`You, in fact, proceeded with the training, completed same, and received a certification to operate
`the new aircraft. Between the tuition and the expenses associated with the training, Cheney
`Brothers spent approximately $50,000. Cheney Brothers did this based on your
`acknowledgement and representation that you intended to remain in Cheney Brothers’ employ.
`Unfortunately, it now appears that your representation and acknowledgment in this regard were
`knowingly false.
`Not even a month after receiving final certification on the new aircraft, we received confirmation
`that you had applied for employment elsewhere. Shortly thereafter you resigned. Upon
`knowledge and belief, you were actively seeking and applying for employment elsewhere before
`and while availing yourself of the training - the training paid for by Cheney Brothers. Had
`Cheney Brothers been aware of this fact, it would not have paid for your recent training.
`We believe you deceived Cheney Brothers knowingly and with the intent to obtain a substantial
`benefit to which you were not entitled. Thus, we believe your actions constitute, among other
`things, fraudulent inducement, fraudulent misrepresentation, and unjust enrichment.
`
`CheneyBrothers
`
`I Chcncv Way. Riviera Beach. FL 33404
`2801 W. Silver Springs Blvd. Ocala, FL 34475
`1 Cheney Way Punta Gorda. FL 33982-4401
`195 Business Park Dr.. Statesville. NC 28677
`
`3 561.845.4700 office ® <800.432.134 I toll-free
`® 352.291.7800 office • 8OO.939.4OI8 toll-free
`8 941.505.5885 office • 844.234 1341 loll-lree
`e 919.778.3000 office • 800.899.3921 toll-free
`
`

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`Accordingly, I hereby demand, on behalf of Cheney Brothers, that you immediately contact me
`with arrangements for repayment of the $50,000. If agreeable arrangements are not made, we
`will have no choice but to proceed against you with formal legal action. Additionally, if it is
`determined that your new employer knew of your fraudulent conduct and was an accomplice in
`same, we will not hesitate to pursue it with legal action as well.
`I regret that this correspondence is necessary. It is my understanding that Mr. Russell attempted
`to work this out with you amicably; but you rejected his attempt. Cheney Brothers is only
`seeking what is equitable. We are hopeful you will recognize such and respond professionally
`and appropriately.
`To avoid further legal action, please respond to me with a proposal for repayment by no
`later than 5:00 pm on February 8, 2023. Thank you.
`
`Sincerely,
`
`SlacftMe, McSbtide.
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`NOT A CERTIFIED COPY
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`Rachelle McBride, Esq.
`General Counsel
`
`CheneyBrothers
`
`1 Cheney Way. Riviera Beach. FL 33404
`2801 W. Silver Springs Blvd. Ocala, FL 34475
`1 Cheney Way. Punta Gorda. FL 33982-4401
`402 Commerce Ct.. Goldsboro. NC 27532
`195 Business Park Dr., Statesville. NC 28677
`
`• 561.845.4700 office
`® 352.291.7800 office
`• 941.505.5885 office
`® 919 778.3000 office
`® 919 778.3000 office
`
`9 800.432.1341 toll-free
`® 800.939.4018 toll-free
`• 844.234.1341 toll-free
`• 800.899.3921 toll-free
`9 800.899.3921 toll-free
`
`

`

`Exhibit
`B
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`NOT A CERTIFIED COPY
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`

`

`BETH COKE
`
`EMPLOYMENT LAW
`February 8, 2023
`Via Electronic Mail
`
`NOT A CERTIFIED COPY
`
`Rachelle McBride, Esq.
`Cheney Brothers, Inc.
`One Cheney Way
`Riviera Beach, FL 33404
`RachelleM@CheneyBrothers.com
`Re: Wesley Richards
`Dear Ms. McBride:
`I am in receipt of your February 3, 2023 letter to Mr. Richards. Please direct
`all future correspondence concerning this matter to me and not to my client directly.
`At the outset, there are additional facts of which you need to be aware. Mr.
`Richards has been discussing with Byron Russell leaving Cheney Bros, for over a
`year. Until recently there were two issues that caused Mr. Richards to want to leave.
`The first is that Mr. Richards was significantly underpaid from the standard, which
`can be determined by organizations such as the National Business Aviation
`Association (“NBAA”), based on experience and type of aircraft. The second issue
`was the micromanagement and demeaning, disrespectful manner in which the Chief
`Pilot treats pilots, including Mr. Richards.
`In January 2022, Mr. Russell gave Mr. Richards a raise and promised that he
`would work to resolve the issues with the ChiefPilot to convince him to stay another
`year. Prior to going to the training, Mr. Richards approached the Chief Pilot about
`getting a raise to bring him to the minimum standard. The response was to wait until
`after the training. Mr. Richards was originally scheduled to go to the training at issue
`in the middle of the year, but five days prior to going was advised that he would be
`, the Chief Pilot
`going. Regardless, after the training was completed by
`REDACTED
`indicated that he would not be receiving a raise. At that point, Mr. Richards applied
`for a job at another company. A week or so before he gave notice, Mr. Richards was
`I 3 I NORTH SECOND STREET. SUITE 204 • FORT PIERCE. FL 34950
`TELEPHONE: (772) 252-4230 • beth@cokeemploymentlaw.com • FAX: (772) 252-4575
`
`

`

`Rachelle McBride, Esq.
`February 8, 2023
`Page 2
`open about seeking another opportunity with the ChiefPilot who indicated that there
`was nothing that could be done if he wanted to leave because there are no contracts.
`In addition, prior to leaving, after repeatedly speaking with the Chief Pilot
`about the raise, he set a meeting for Mr. Richards to meet directly with Mr. Russell
`about the pay issue as well as a significant safety issue offlying the new plane, which
`is much larger than their other aircrafts, out of a small airfield. When they met, Mr.
`Richards told Mr. Russell that he needed a raise as he had recently been offered an
`opportunity to make significantly more money, to which Mr. Russell responded that
`was something he should consider. At no time did
`indicate that Mr.
`REDACTED
`Richards was under any obligation to repay the training costs. That only occurred
`after Mr. Richards gave his notice and Mr. Russell was angry that he was leaving.
`Having litigated these types of cases, I am keenly aware that the standard in
`the industry is to have pilots sign contracts agreeing to pay back training costs before
`the training is provided. That was not done here. Instead, you are seeking to rely on
`tort claims that simply do not apply. First, none of the claims will be successful
`because Mr. Richards did not promise to stay in Cheney Brothers’ employ. Rather
`that is contrary to the facts. However, had Mr. Richards been given a suitable raise
`and removal of the safety issue by flying the new plane out of a larger field such as
`Palm Beach or Stuart, he may not have left.
`There is no legal basis for Cheney Brothers to pursue training costs against
`my client so if legal proceedings are initiated, we will defend vigorously and seek
`fees and costs for having to do so. Further, if your client takes any action that
`jeopardizes his new employment, we will be filing suit for tortious interference. If
`you have case law that supports your threatened actions, please immediately provide
`it for my review. Otherwise I will consider the matter closed.
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`NOT A CERTIFIED COPY
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`Sincerely,
`
`cc: Wesley Richards
`
`

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`Exhibit
`C
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`NOT A CERTIFIED COPY
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`

`

`Andrew Tharp
`From:
`Sent:
`To:
`Cc:
`Subject:
`Attachments:
`
`Beth Coke <beth@cokeemploymentlaw.com>
`Friday, February 2, 2024 12:51 PM
`Andrew Tharp
`David Tadros
`Service of Court Document
`Motion for Attorney's Fees with Exhibits.pdf
`
`Andrew,
`Attached is the Defendant’s Motion for Attorney Fees. Pursuant to Fla.Stat.57.105(4) you have 21
`days before I will be filing this with the Court.
`Regards,
`Beth Coke
`
`
`
`NOT A CERTIFIED COPY
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`BETH COKE
`
`fMPlOYMJNT LAW
`
`131 North Second Street, Suite 204
` Fort Pierce, Florida 34950
` Phone: (772) 252-4230
` Fax: (772) 252-4575
`
`
`**CONFIDENTIALITY NOTICE**
`
`The information contained in this electronic message (including any attachments) is intended
`only for the use of the individual(s) to whom it is addressed. This e-mail may be legally
`protected by the attorney-client and/or work product privilege. If you have received this
`transmission in error, you are notified that any unauthorized use, disclosure, copying or
`distribution of this e-mail is strictly prohibited. If you have received this communication in
`error, please delete this email, destroy any hard copies and notify the sender by telephone at
`(772) 252-4230.
`
`
`1
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`Exhibit
`D
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`NOT A CERTIFIED COPY
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`

`

`
`
`IN THE CIRCUIT COURT FOR THE FIFTEENTH JUDICIAL CIRCUIT,
`IN AND FOR PALM BEACH COUNTY, FLORIDA
`
`
`
`
`
`
`
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`CHENEY BROS, INC.,
`a Florida Corporation
`
`
`Plaintiff,
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`vs.
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`WESLEY RICHARDS,
`
`
`Defendant.
`_____________________________/
`MOTION FOR ATTORNEY’S FEES PURSUANT TO 57.105, FLORIDA STATUTES
`
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`COMES NOW the Defendant, WESLEY RICHARDS, by and through his undersigned counsel,
`and files this Motion for Attorney’s Fees and states as follows:
`1. Prior to the instant action, counsel1 for the Plaintiff served Defendant with a demand
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`
`
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`Case No. 2023-CA-001432
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`NOT A CERTIFIED COPY
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`letter, threatening suit. See Exhibit A.
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`2. The undersigned responded, advising that there was no legal basis for Plaintiff to pursue
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`its claims against Defendant and that, if legal proceedings were initiated, Defendant
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`would vigorously defend and seek fees and costs for having to do so. In the same letter,
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`counsel for Defendant requested that if counsel for Plaintiff had any case law supporting
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`the threatened action, it be provided. No response to the correspondence was received.
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`See Exhibit B.
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`3. On February 16, 2023 filed the instant action.
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`4. In response, Defendant filed a Motion to Dismiss.
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`5. Plaintiff served discovery and requests dates for Defendant’s deposition.
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`6. Defendant took the position that responding to discovery and taking Defendant’s
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`1 At the time, Plaintiff was using in-house counsel as opposed to the current counsel.
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`1
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`deposition was not appropriate until the resolution of the dispositive Motion to Dismiss.
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`Plaintiff then filed a Motion to Compel responses to discovery and to take the deposition
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`of Defendant.
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`7. Defendant’s Motion to Dismiss was granted on May 18, 2023. In the same Order, the
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`Court granted the Plaintiff’s Motion to Compel.
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`8. Pursuant to the Court’s Order, Defendant served responses Interrogatories and Request
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`for Production of Documents which had previously been served by Plaintiff.
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`9. Plaintiff also scheduled and took Defendant’s deposition.
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`10. Plaintiff served a second set of Interrogatories and Request for Production of Documents
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`to which Defendant responded.
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`11. Plaintiff filed an Amended Complaint on June 1, 2023.
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`12. Defendant filed a Motion to Dismiss the Amended Complaint which was granted after
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`argument December 13, 2023. Counsel for the Plaintiff was given until January 15, 2024
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`to file a Second Amended Complaint. In lieu of doing that, Plaintiff filed a voluntary notice
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`NOT A CERTIFIED COPY
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`of dismissal.
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`
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`INTRODUCTION
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`MEMORANDUM OF LAW
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`
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`Plaintiff was on notice at the time suit was filed, that Defendant took the position that
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`there was no legal basis to support the suit and that Defendant would be seeking costs and fees
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`for having to defend it if Plaintiff proceeded. Notwithstanding, Plaintiff filed suit. The fact that
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`the Plaintiff could not state a prima facie case and the suit was dismissed twice on motions to
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`2
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`
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`dismiss shows that there was no basis applying the facts to the law to pursue these claims. The
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`Court advised counsel for the Plaintiff at the December 13, 2023 hearing on the Motion to
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`Dismiss Plaintiff’s Amended Complaint that if the suit were dismissed again, it would be with
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`prejudice. To avoid a dismissal with prejudice, Plaintiff voluntarily dismissed the suit. This does
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`not negate Defendant’s entitlement to an award of fees and costs.
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`ARGUMENT
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`Section 57.105(1), Florida Statutes provides that a trial court "shall award" attorney's
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`fees to the prevailing party in an action where the court finds that the losing party or his
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`attorney "knew or should have known" that the claim "[w]as not supported by the material
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`facts necessary to establish the claim" or "[w]ould not be supported by the application of then-
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`existing law to those material facts." Hustad v. Architectural Studio, Inc., 958 So. 2d 569, 570
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`(Fla. 4th DCA 2007).
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`As stated above, Defendant put Plaintiff on notice prior to the filing of the lawsuit that
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`there was no legal basis to support the claims for which Plaintiff was threatening to sue.
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`Defendant also notified Plaintiff pre-suit of its intent to seek fees and costs if the claims were
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`pursued. Further, in Motion to Dismiss, Defendant requested attorney’s fees pursuant to
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`Fla.Stat. §57.105. Accordingly, the Plaintiff knew or should have known that the claims were
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`NOT A CERTIFIED COPY
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`frivolous.
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`While a notice of voluntary dismissal serves to terminate litigation and divest the trial
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`court of jurisdiction, the supreme court has recognized certain exceptions, one of which is the
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`ability of the trial court to award sanctions under section 57.105(1). Residents for a Better
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`Cmty. v. WCI Cmtys., Inc., 291 So. 3d 632, 633 (Fla. 2d DCA 2020) citing Pino v. Bank of N.Y., 121
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`3
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`So. 3d 23 (Fla. 2013). Generally, a plaintiff's voluntary dismissal makes the defendant the
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`prevailing party. Tubbs v. Mechanik Nuccio Hearne & Wester, P.A., 125 So. 3d 1034, 1040 (Fla.
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`2d DCA 2013). However, the court may look behind a voluntary dismissal at the facts of the
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`litigation to determine if a party has prevailed. Id. at 1041. Stated differently, "courts must look
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`to the substance of litigation outcomes—not just procedural maneuvers—in determining the
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`issue of which party has prevailed in an action." Id., citing Residents for a Better Cmty., 291 So.
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`3d at 634.
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`Here, even if the Court were to determine that the Plaintiff’s voluntary dismissal did not
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`make the Defendant the prevailing party, the previous course of the litigation shows that two
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`separate Motions to Dismiss were granted. This clearly makes the Defendant the prevailing
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`party.
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`REASONABLENESS OF HOURS AND THE HOURLY RATE
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`NOT A CERTIFIED COPY
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`An award of attorney's fees under section 57.105 must be supported by competent,
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`substantial evidence. Shortes v. Hill, 860 So. 2d 1, 2 (Fla. 5th DCA 2003). This evidence should
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`include "records detailing the amount of work performed and the time to perform each task" as
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`well as expert testimony to establish "both the reasonableness of the hours and a reasonable
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`hourly rate." Horowitz v. Rossdale Cle, Inc., 357 So. 3d 260, 262 (Fla. 5th DCA 2023) citing Nants
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`v. Griffin, 783 So. 2d 363, 366 (Fla. 5th DCA 2001).
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`For defending this lawsuit, which included, but is not limited to, the filing two motions
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`to dismiss and arguing at hearings on those, arguing at a hearing on Plaintiff’s motion to
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`compel, responding to two sets of discovery, preparing Defendant for deposition, representing
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`him at his deposition and preparing the instant Motion for Fees, counsel spent 44.55 hours. For
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`the Court to determine the reasonableness of the time spent on the work performed, counsel is
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`attaching a detailed description by date of the work performed and the time spent. Exhibit C.
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`Counsel for Defendant is seeking $395 per hour for her fees. In support of that rate, the
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`affidavit of David Miklas is being provided. Exhibit D. Mr. Miklas also reviewed the time records
`and attests that he reviewed the time records in this case and believes that the time spent is
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`reasonable for the work performed.
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`CERTIFICATION OF CONFERRAL
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`Pursuant to Fla.Stat. §57.105(4), counsel for the Defendant served this Motion on
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`counsel for the Plaintiff on January 31, 2024. More than 21 days have passed since the service
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`of this Motion. Additionally, the undersigned conferred with counsel for the Plaintiff who
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`NOT A CERTIFIED COPY
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`opposes this Motion.
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`Dated:, 2024
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`Respectfully submitted,
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`/s/Beth Coke
`Beth Coke
`Fla. Bar. #70726
`Beth@cokeemploymentlaw.com
`Coke Employment Law
`131 N. 2nd Street, Suite 204
`Fort Pierce, Fl. 34950
`Telephone: (772) 252-4230
`Facsimile: (772) 252-4575
`Attorney for Defendant
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`CERTIFICATE OF SERVICE
`I HEREBY CERTIFY that a copy of the foregoing document is being filed on
`, 2024, through the Florida Court E-Filing Portal, which will automatically
`serve a copy on Andrew Tharp and David S. Tadros , Wyland & Tadros LLP, the attorneys for the
`Plaintiff.
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`/s/ Beth Coke
`Beth Coke
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`5
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`EXHIBIT A
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`NOT A CERTIFIED COPY
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`6
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`CHENEY BROTHERS, INC.
`FOOD SERVICE DISTRIBUTORS
`ONE CHENEY WAY
`RIVIERA BEACH, FL. 33404-7000
`www.cheneYbrothers.com
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`Cheney MBrothers
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`Rachelle R. McBride, Esq.
`General Counsel
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`Direct Line:
`561-845-4745
`Fax:
`561-684-7935
`RachelleM/ajCheneyBrothers.com
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`February 3, 2022
`
`Via Federal Express
`Wesley Richards
`1001 SW Charcoal Ave.
`Port St. Lucie, FL 34953
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`Re: Cheney Bros., Inc. v. Wesley Richards
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`NOT A CERTIFIED COPY
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`Dear Mr. Richards:
`On behalf of Cheney Bros., Inc. (d/b/a Cheney Brothers), I forward this correspondence
`demanding immediate resolution of a serious matter.
`You were employed_as a pilot since approximately December of2018. During that time, Cheney
`Brothers has provided you with generous compensation, valuableTxperience and training, and a
`professional work environment.
`By the last quarter of 2022, it was determined that purchase or lease of a new aircraft would be
`necessary. Ultimately, a CitatiomSovereign was purchased. You were well aware of the need for
`and the ultimate purchase of same. You were also well aware that you and the other pilots would
`need to receive comprehensive trainintuand certification in order to operate the new aircraft.
`You, in fact, proceeded with the training, completed same, and received a certification to operate
`the new aircraft. Between theluitioiLand the expenses associated with the training, Cheney
`Brothers spen^approximatelySSO^OO^Cheney Brothers did this based on your
`acknowledgement anTrepresentationThat you intended to remain in Cheney Brothers’ employ.
`Unfortunately, it now appears that your representation and acknowledgment in this regard were
`knowingly, false.
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`Not even a month after receiving final certification on the new aircraft, we received confirmation
`that you had applied for employment elsewhere. Shortly thereafter you resigned. Upon
`knowledge and belief, you were actively seeking and applying for employment elsewhere before
`and while availing yourself of the training - the training paid for by Cheney Brothers. Had
`Cheney Brothers been aware of this fact, it would not have paid for your recent training.
`We believe you deceived Cheney Brothers knowingly and with the intent to obtain a substantial
`benefit to which you were not entitled. Thus, we believe your actions constitute, among other
`things, fraudulent inducement, fraudulent misrepresentation, and unjust enrichment.
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`CheneyBrothers
`
`I Cheney Way. Riviera Beach. FL 33404
`2801 W. Silver Springs Blvd, Ocala, FL 34475
`1 Cheney Way, Punta Gorda. FL 33982-440!
`195 Business Park Dr., Statesville, NC 28677
`
`• 561.845.4700 office • 800.432.1341 toll-free
`• 352.291.7800 office • 800.939.4018 toll-free
`• 941.505.5885 office • 844.234.1341 toll-free
`• 919.778.3000 office • 800.899.3921 toll-free
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`Accordingly, I hereby demand, on behalf of Cheney Brothers, that you immediately contact me
`with arrangements for repayment of the $50,0oo. If agreeable arrangements are not made, we
`will have no choice but to proceed against you with formal legal action. Additionally, if it is
`determined that your new employer knew offraudulent conduct and was an accomplice in
`same, we will not hesitate to pursue it with legal action as well.
`I regret that this correspondence is necessary. It js my understanding that Mr. Russell attempted
`but you rejected his attempt. Cheney
`to^rkrtnsoutwirt^
`see ing w a is equita e.
`e arc tope u you will recognize such and respond professionally
`and appropriately.
`To avoid fui ther legal action, please respond to me with a proposal for repayment by no
`later than 5:00 pm on February 8,2023. Thank you.
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`NOT A CERTIFIED COPY
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`Sincerely,
`JladiMc Mcffiude.
`
`Rachelle McBride, Esq.
`General Counsel
`
`Brothers
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`I Cheney Way. Riviera Beach. PL 33404
`2801 W. Silver Springs Blvd, Ocala, 1'1. 34475
`1 Cheney Way. Punta Gorda, I’L 33982-4401
`402 Commerce Ct., Goldsboro. NC 27532
`195 Business Park Dr.. Statesville. NC 28677
`
`• 561.845.4700 office • 800.432.1341 toll-free
`• 352.291.7800 office • 800.939.4018 toll-free
`• 941.505.5885 office • 844.234.1341 toll-tree
`• 919.778.3000 office • 800.899.3921 toll-free
`• 919.778.3000 office • 800.899.3921 toll-free
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`EXHIBIT B
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`NOT A CERTIFIED COPY
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`7
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`BETH COKE
`
`EMPLOYMENT LAW
`February 8, 2023
`Via Electronic Mail
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`NOT A CERTIFIED COPY
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`Rachelle McBride, Esq.
`Cheney Brothers, Inc.
`One Cheney Way
`Riviera Beach, FL 33404
`RachelleM@CheneyBrothers.com
`Re: Wesley Richards
`Dear Ms. McBride:
`I am in receipt of your February 3, 2023 letter to Mr. R