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Kenniasty v. Bionetics Corp.

Florida Court of Appeal, Fifth District

December 16, 2011

Frank W. KENNIASTY, et al., Appellant,
v.
BIONETICS CORPORATION, etc., et al., Appellee.

Rehearing Denied March 19, 2012.

Page 1072

Frank W. Kenniasty, Melbourne, pro se.

Elizabeth Siano Harris, of Stadler & Harris, P.A., Titusville, for Appellants, William Moore and Judith Deitz.

Joe Teague Caruso, of Caruso, Swerbilow & Camerota, P.A., Merritt Island, for Appellee.

OPINION AFTER REMAND

GRIFFIN, J.

Upon receipt of the decision of the Florida Supreme Court, Bionetics Corp. v. Kenniasty, 69 So.3d 943, (Fla.2011), quashing the decision of this Court to the extent that it is inconsistent with the supreme court's decision, we accordingly withdraw our prior opinion and substitute the following in its stead.

Frank W. Kenniasty [" Kenniasty" ] and Judith Deitz and William Moore d/b/a Techniarts Engineering [" Deitz and Moore" ] appeal the trial court's entry of final judgment awarding Bionetics Corporation [" Bionetics" ] $39,025.78 in attorney's fees and costs against each pursuant to Section 57.105, Florida Statutes.[1] We affirm in part and reverse in part.

This case arose as a result of Deitz and Moore having prevailed in earlier litigation. In that case, Bionetics had filed a complaint against Deitz and Moore in 1999, alleging an ownership interest in motion picture film-processing [" MOPIX" ] equipment that Deitz and Moore had purchased from the Defense Reutilization and Management Office. In its complaint, Bionetics also sought sequestration of the MOPIX equipment. The court granted an order of sequestration, and the MOPIX equipment was sequestered in a temperature

Page 1073

and humidity-controlled environment at Deitz's and Moore's facility. There, the MOPIX equipment remained substantially assembled.

Deitz and Moore sought relief from the sequestration, offering to post a bond " in lieu of sequestration of the MOPIX [e]quipment so that [they] could continue their business opportunities." Bionetics rejected the offer, and the trial court denied the motion. Later, Deitz and Moore filed a motion to amend the order of sequestration because the lease had expired on their facility. The trial court ordered the Sheriff to move the MOPIX equipment to Bionetics' facility for storage.

The case went to trial and Deitz and Moore prevailed as the legal owners of the MOPIX equipment, and the trial court vacated the order of sequestration. When Deitz and Moore entered Bionetics' facility, they found the MOPIX equipment in a seriously degraded condition in a non-secure area with " a leaking roof, no air conditioning units, ... lack of ventilation, and extreme filth and dust." The equipment was disassembled and scattered on the facility's floor.

In 2001, Deitz and Moore, with Kenniasty as counsel, filed a four-count complaint against Bionetics, alleging malicious prosecution in count one, negligent sequestration in count two, misappropriation of trade secrets in count three, and tortious interference with business relations in count four. Bionetics filed a motion to dismiss all counts. The trial court denied the motion as to count one, ...


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