South Miami

South Miami police chief lawsuit at impasse as parties await trial date

Former South Miami Police Chief Orlando Martinez de Castro.
Former South Miami Police Chief Orlando Martinez de Castro.

Following a ruling against South Miami on March 10, former Police Chief Orlando Martinez de Castro and the city are headed back to trial.

The date hasn’t been set, as both parties anxiously seek a resolution.

“All that has occurred is ongoing negotiations regarding resolutions, however both parties have noticed it for trial,” Martinez de Castro’s attorney Paul Totten said. “We haven’t received a trial date yet, but that happened about a week ago.”

Martinez de Castro was fired in 2013 after the city found he violated his contract by serving as acting city manager while also serving as chief.

On March 10, Miami-Dade Circuit Court Judge Jose M. Rodriguez ruled that Martinez de Castro never served as acting city manager because he was never properly appointed to the position.

Since then, Totten, of Franqui Totten, LLP, has approached the city with their demands for settlement.

“We’ve made our demand to the city,” Totten said. “For right now I’d rather not comment on it … Try to keep it in house. If it’s something that goes to trial it will be public record. But as it stands right now, I don’t want to comment on it.”

City Attorney Thomas Pepe said South Miami cannot appeal Rodriguez’s partial final judgment, but must wait for a final order.

“The city can’t take an appeal until there is a final appealable order,” Pepe said. “Generally speaking, a final appealable order would be the final judgment. The only thing that has been entered is a partial final judgment not a complete final judgment. A partial final judgment is not an appealable final order. So unfortunately we can’t appeal what the judge has done so far. We have to wait until basically the end of the case to take the appeal. … It’s complicated but that’s the situation. We can’t appeal it just yet.”

In April, Martinez de Castro had several outstanding and pending actions, that included lawsuits against Pepe, Mayor Philip Stoddard, Commissioner Bob Welsh and the city itself. Those actions are still pending.

“We had one legal strategy meeting a couple weeks ago,” Stoddard said. “We are going to have another one before our next commission meeting. We essentially discussed what information we need to know in order to make a decision. We don’t yet have all of that information.”

If a settlement is reached, there would also be no appeal.

“We stand behind Judge Rodriguez’s order and I don’t know what else could be appealable or even considered by the district court of appeals in overturning it since it’s an article that’s based off of the law as it applies, not only the case law, but the constitution of Florida,” Totten said.

Totten said he believes that Rodriguez “disposed of all questions with regard to the contract itself and the competing allegations by [Totten] saying it was an enforceable contract and the city saying it was not.”

Pepe disagrees with that claim.

“My contention is the issues that remain include the city’s affirmative defenses that were not resolved. … There was only maybe two affirmative defenses that were resolved by the judge when he entered the partial summary judgment,” Pepe said. “There remain additional affirmative defenses that need to be tried … as well as their claim for damages and it’s their contention that the only issue to be tried is damages. I’m sure we’ll have a hearing to decide what the scope of the trial is going to be.”

Totten added that his client is only seeking damages.

“The court resolved that,” Totten said. “However the city noticed it as well for all remaining issues including their affirmative defenses. We did file a motion to strike their notice because we feel their affirmative defenses were resolved in the court’s March 10 order. But that’s set for hearing, I believe in the middle of July.”

“We will see what the court does on that. Either way, we have noticed for trial so both parties are in the process of getting the trial set and scheduled and move for resolution if we are unable to do so between ourselves.”