Motion for Attorneys Fees in Original Proceeding Must Be Filed Before Disposition

In Geico General Insurance Company v. Moultrop (4D15-2772, Nov. 12, 2015), the Fourth District wrote an opinion on a motion for attorneys fees filed after a petition for writ of certiorari was denied. The court stated:

Rule 9.400(b)(2) provides that “in original proceedings” a motion for attorney’s fees “shall be served not later than . . . the time for service of the petitioner’s reply to the response to the petition.” Here, the court denied the petition without requiring a response to the petition or, obviously, a reply to a response. Having been first filed after the petition had been denied, the motion for appellate attorney’s fees is denied as untimely. 

Fourth District: Legislature Entitled To Limit Payment of Attorney's Fees In Claims Bill

In Searcy Denney Scarola Barnhart& Shipley, P.A. v. State (4D13-3497), a divided panel of the Fourth District held that the "guardianship court’s decision to recognize the Legislature’s prerogative of limiting the payment of fees and costs [in this case] to $100,000." The opinion was written by Judge Forst.  Judge Conner joined the majority opinion and also wrote a concurring opinion. Chief Judge Ciklin wrote a 19-page dissenting opinion. The majority opinion described the facts as follows:

The law firm "represented the family in a five-week jury trial in 2007. The jury found that Lee Memorial Health System’s employees had been negligent and that their negligence had resulted in damages to Aaron and his parents. The jury awarded Aaron over $28.3 million. His mother was awarded $1,340,000 in damages, and his father was awarded $1,000,000. However, the trial court found that Lee Memorial was an independent special district of the State of Florida and, pursuant to the sovereign immunity damage limitations in section 768.28(5), Florida Statutes (2007), entered a judgment against the hospital in the amount of $200,000. The trial court rulings were affirmed by the Second District Court of Appeal. Lee Mem’l Health Sys. v. Edwards, 22 So. 3d 81 (Fla. 2d DCA 2009).

In an attempt to recover additional funds beyond the $200,000 limit, the law firm submitted a claims bill to the Florida legislature. 

In 2012, after a public campaign in support of the bill, the Legislature passed Claims Bill 2012-249, directing Lee Memorial to appropriate $10 million, with an additional $5 million payable in annual installments, “to the Guardianship of Aaron Edwards, to be placed in a special needs trust for the exclusive use and benefit of Aaron Edwards, a minor.” Ch. 2012-249, § 2, Laws of Fla. No monies were appropriated for the use and/or benefit of either parent for their damages. The claims bill also included a stipulation stating “[t]he total amount paid for attorney’s fees, lobbying fees, costs, and other similar expenses relating to this claim may not exceed $100,000.” Id. § 3. It is this provision that is the focus of the matter before us.

After the $10 million had been paid into a trust for Aaron Edwards's needs, the lawyers ("with support from the Edwards family"), asked the court to allocate $2.5 million for attorney's fees. "The petition premised this request on a 25% fee cap provision in section 768.28(8) and on the argument that the fees and costs limitation in the claims bill was unconstitutional." 

On the merits of the issue presented, the court began with an analysis of sovereign immunity. 

The doctrine of sovereign immunity stretches back to the foundations of Anglo-American common law. Espousing the maxim that “the King can do no wrong,” Blackstone explained that “no suit or action can be brought against the King, even in civil matters, because no court can have jurisdiction over him.” 1 WILLIAM BLACKSTONE, COMMENTARIES *235. However, should a subject of the Crown have “a just demand upon the King, he must petition him in his court of chancery, where his chancellor will administer right as a matter of grace, though not upon compulsion.” Id. at *236.  

When the common law was exported to the American continent, sovereign immunity came with it.  

***

Section 768.28, Florida Statutes, is the codification of the state’s limited waiver of sovereign immunity in tort actions. A plaintiff’s recovery against the state and its agencies or subdivisions is limited to no more than $200,000 per incident. § 768.28(5), Fla. Stat. (2007). Moreover, in cases where a judgment exceeds $200,000, “that portion of the judgment that exceeds these amounts may be reported to the Legislature, but may be paid in part or in whole only by further act of the Legislature.” Id.  

After an analysis of the legal opinions regarding the statute and its application when the legislature limited compensation to lawyers, the court turned to the case before it. The court stated that "in the instant case, as in Gamble and Noel, the Legislature passed a claims bill that provided a specific amount of attorneys’ fees that was significantly less than the amount contracted for between the Edwards family and their law firm, Searcy Denney." Addressing the ultimate conclusion, and the dissenting opinion, the court stated:

Notwithstanding Appellants’ (and the dissenting opinion’s) arguments to the contrary, Gamble and Noel, and the reasoning therein, support the guardianship court’s decision to recognize the Legislature’s prerogative of limiting the payment of fees and costs to $100,000. A claims bill, both before and after the enactment of section 768.28, is a “voluntary recognition of its moral obligation by the legislature” and, as such, is firmly entrenched in the sphere of legislative discretion. Noel, 984 So. 2d at 1267 (quoting Gamble, 450 So. 2d at 853). “Parties cannot enter into a contract to bind the state in the exercise of its sovereign power. . . . The legislature was in no way bound to pass legislation conforming with the provisions of the prior contingent fee contract.” Gamble, 450 So. 2d at 853. “That the claim[s] bill is separate and apart from the constraints of an earlier lawsuit is demonstrated by the supreme court’s recognition that [the] legislature has the power to limit attorney’s fees in a claims bill, no matter what the underlying fee contract provides[.]” Noel, 984 So. 2d at 1267. “A claim[s] bill is not obtainable by right upon the claimant’s proof of entitlement, but rather is granted strictly as a matter of legislative grace.” Wagner v. Orange Cnty., 960 So. 2d 785, 788 (Fla. 5th DCA 2007); see also United Servs.Auto Ass’n v. Phillips, 740 So.2d 1205, 1209 (Fla. 2d DCA 1999).

In conclusion, the court stated: "Appellants’ (and the dissenting opinion’s) dissatisfaction with the limitation on attorneys’ fees and costs imposed in Aaron’s claims bill is understandable, and the possibility of such a restriction in a claims bill posits an additional factor to be considered by counsel in deciding whether to take on representation in a case in this state involving a sovereign entity defendant. Appellants’ reply brief states, 'If there is no reasonable financial incentive for lawyers to take these type cases, the injured will go unrepresented.' To what extent this is true is beyond our focus. Therefore, we affirm the guardianship court’s ruling."

As noted above, there were three opinions in this appeal. Judge Forst wrote the opinion, and was joined by Judge Conner who also wrote a concurring opinion. Chief Judge Ciklin wrote a dissenting opinion.

Judge Conner's concurrence states:

Anytime legal analysis traces back to Blackstone and the foundations of Anglo-American law, one knows core legal values are being addressed. I write to further explain why I cannot agree with the reasoning of the dissent, although the dissent makes very cogent arguments as to why Gamble and Noel should not control the outcome of this case. 

The premise of the dissent is that by enacting section 768.28, Florida Statutes, the legislature altered the “legislative grace” attribute of its monetary awards by making a judicial or administrative award a precondition for initiating the claims bill process. The argument is that you can’t even try to pass through the doors of the legislature until you successfully pass through the doors of the courthouse. Thus, the two processes are welded; this means the “act of grace” analysis has been “transcended” because the weld now raises the specter of “a chilling effect upon the sacrosanct and fundamental constitutional right to access to our courts.” 

The fly in the ointment regarding the dissent’s argument is the failure to recognize that seeking redress from the legislature is fundamentally different from seeking redress from the court. Every citizen has a fundamental right to seek redress from the court because that is a core function of the judicial branch of government. There is no fundamental right to seek redress from the legislature because such is not a core function of that branch.

***

Therefore, I agree with the majority opinion that unless our supreme court changes course in its legal analysis regarding separation of powers, arguments regarding impairment of contract, unconstitutional taking, denial of due process and equal protection and all variations on those themes are unpersuasive. 

Finally, the 19-page dissenting opinion by Chief Judge Ciklin begins, in part, as follows:

I respectfully dissent and offer my overall assessment of the crucially important issues involved in this case, the ultimate resolution of which will have deep and profound ramifications for many Floridians—and for many years to come.

*** 

Because the claim bill’s limitation on attorneys’ fees and costs is an unconstitutional impairment on the Edwards family and firm’s right to contract, I would reverse. I have taken the liberty to also write to remind the readers of this dissent and all Florida lawyers, that contingency fee agreements are directly connected to every citizen’s right to access to our courts. I cite to the Florida Code of Professional Responsibility which contemplates the ethical and moral obligation of “us lawyers” licensed to practice in this state, to always consider the contingency fee agreement as the “poor man’s key to the courthouse.” Because of the enactment of section 768.28, which now requires that aggrieved individuals first invoke the civil process of law before even approaching the Legislature for sovereign immunity relief, the “key” should be easily accessible. The right to this key is rich and deeply rooted in American history and it is a judicial time-honored duty and responsibility to protect the inalienable rights of our people in this regard. 

Fifth District Affirms and Issues Sanctions Order On Own Motion

In Badgley v. SunTrust Mortgage (5D13-2500), the Fifth District affirmed the trial court's sanction order and, sua sponte, ordered "order Badgley and her attorney to pay, in equal amounts, the reasonable attorneys' fees and costs incurred by Appellees in this appeal, pursuant to section 57.105(1), Florida Statutes." There were a number of issues raised on appeal and are generally described below:

In her first issue, she baldly asserts that dismissing a complaint prior to discovery violates due process of law. The law is to the contrary.

***

In her second and third issues, Badgley argues that the dismissal of her complaint with prejudice was error even though she had already amended the complaint once as a matter of right and her quiet title theory was legally unsupportable based on the alleged facts. She claimed her lenders created a cloud on her title by refusing to respond to her absurd demand of them to "prove" that she owed them money. Not only is there no legal basis to support such a claim, the attachments to the complaint clearly demonstrate, as Badgley later admitted, that she 'took a mortgage and got the money.'

***

In her fourth issue, Badgley claims Appellees' fee motion below was untimely filed after the dismissal judgment even though Appellees' motion for sanctions was timely filed before the judgment awarding fees.

***

Finally, Badgley disputes the sanction award even though similar complaints by plaintiffs represented by her attorney have been dismissed and have been the basis for sanctions.

In a footnote to the discussion of the second and third issue, the court described the claim that the lender created a cloud on title as follows: "Badgley sent Appellees a written demand to 'validate that an actual debt exists' by producing twenty-three separate categories of documents. The demand stated that if Appellees failed to produce the information requested in their next correspondence, they would 'be accepting my offer to provide pen pal services at $100,000.00 per correspondence.' It further notified Appellees that by 'failure to validate the alleged debt,"as demanded, they would tacitly agree to waive any and all claims against Badgley, would release her from any encumbrances clouding title to her property, and would be subject to a quiet title action.'" (Emphasis is mine).

57.105 Safe Harbor Provisions Do Not Apply To Court

A few weeks ago, in Albelo v. Southern Oak Insurance Company (3D11-3102), the Third District entered an order granting rehearing and vacating a prior opinion awarding sanctions based upon section 57.105, Florida Statutes, but at the same time issued a new opinion awarding sanctions on the court's own motion.

The court agreed with new counsel that the sanctions motion had failed to comply with the safe harbor provisions provided by section 57.105. Therefore, the prior opinion granting sanctions on that basis was withdrawn. The court, however, noted that sanctions on the court's own motion do not require compliance with the safe harbor provisions of the statute. The court stated that:

While we agree with Rehearing Counsel that Albelo failed to satisfy the requirements of the safe harbor provision, we respectfully disagree with Rehearing Counsel that the argument made to us was non-frivolous. The twenty-one-day safe harbor provision does not apply to court-initiated sanctions.

The now vacated original opinion can be viewed HERE. 

Appeal Of Order Only Determining Entitlement to Fees Is Premature

In Low Key Limited Inc., et al v. Annsser, et al (3D12-261), the Third District affirmed the trial court affirmed the trial court and dismissed the appeal to the extent it related to the trial court's order finding entitlement to attorneys fees but deferring a ruling on the amount.

As to the portion of the final judgment determining that the parties are entitled to attorney’s fees and costs but reserving jurisdiction to set the amount of the fees, we dismiss the appeal and cross-appeal of that issue in case number 3D12-2611 as a non-final determination not yet ripe for appellate review.  E.g., Rhodes v. Newport Bldg. & Constr., Inc., 86 So. 3d 1245, 1247 (Fla. 2d DCA 2012) (“Because the order determines that [the appellee] is entitled to fees but does not determine the amount, it is a nonfinal order not yet ripe for appellate review.” (citing Allstate Ins. Co. v. Jenkins, 32 So. 3d 163, 165 (Fla. 5th DCA 2010))).

Order Denying Fees Based On Flat Fee Agreement With Foreclosure Attorney Affirmed

In Raza v. Deutsche Bank National Trust Company, the Second District determined that the borrower had properly preserved a claim for attorneys fees by pleading entitlement in his answer and filing a motion for fees within thirty days of the involuntary dismissal. However, the borrower did not sufficiently establish the fees incurred. ​

Deutsche Bank argues that Mr. Raza failed to prove a reasonable fee under Florida Patient's Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985). Principally, it argues that the record contains no information regarding the number of hours spent by Mr. Raza's counsel and the amount of work performed. Mr. Raza responds that the flat fee satisfies any evidentiary burden. We cannot agree.

Emphasis supplied.​ The court later stated that "We do not hold that the absence of time records is fatal to an effort to recover fees under a flat fee arrangement." The flat fee may be sufficient when "combined with expert testimony...if it accounts for all matters addressed in Florida Patient's Compensation Fund." In this case, the fee expert's affidavit "was facially inadequate" Finally, "Even if Mr. Raza did present sufficient evidence, the amount of fees remains in the trial court's discretion"

Foreclosure Judgment Reversed With Instructions To Enter Judgment In Favor Of Defendant Due To Lack of Prosecution

In Spencer v. EMC Mortgage Corp. (3D11-0136), the Third District reversed a judgment with instructions to enter judgment against the Plaintiff/Appellee for lack of prosecution. In July 1997, Spencer stopped making payments on her mortgage. In 2002, a foreclosure complaint was filed that, after a number of motions were filed, "the case languished for thirteen months. The trial court issued a notice of lack of prosecution (order to show cause why the case should not be dismissed), docketed on March 5, 2009, and it scheduled a hearing for the matter for May 29, 2009. There was no record activity in the case during the sixty-day period following the notice of lack of prosecution." Nothing was filed until three days before the hearing, when an unsworn document was filed that "advised the court that the order to show cause had been sent to the offices of prior counsel—not EMC’s successor counsel—and that he had only learned of the notice two weeks earlier by checking the docket." 

The Third DCA noted that "EMC’s brief is more candid. EMC’s counsel actually became aware of the notice of lack of prosecution (docketed March 5, 2009) in “late March or April, during a review of the lower court docket.” EMC’s attorney’s fee affidavit and billing records are even more definitive: a March 30, 2009, time entry narrative states “Review and analyze docket re order entered to show cause why case should not be dismissed for lack of prosecution.” EMC thus had ample time, over a month, within the sixty-day window allowed for record activity that would defeat dismissal. That fact, without more, takes this case out of the 'no notice received' exceptions detailed in Deutsche Bank National Trust Co. v. Basanta, 88 So. 3d 216 (Fla. 3d DCA 2011), and Boosinger v. Davis, 46 So. 3d 152, 154 n.2 (Fla. 2d DCA 2010)."

The court also determined further prosecution would be barred by the statute of limitations. In conclusion, the court stated:

The final summary judgment is reversed. The order denying the motion to dismiss for failure to prosecute the second, 2002 foreclosure case is reversed and vacated. The case is remanded to the trial court for dismissal and for an award of trial and appellate attorney’s fees and costs to Ms. Spencer.

As a footnote the conclusion quoted above, the Third District addressed an interesting issue regarding the availability of fees. The court stated: "In view of the likelihood that this action is barred by the applicable statute of limitations, a party may question whether any motion for attorney’s fees and costs may now be pursued. We conclude that such a motion may proceed based on the analysis in Katz v. Van Der Noord, 546 So. 2d 1047, 1049 (Fla. 1989) (holding that attorney’s fees may be recovered under a prevailing party provision even though the contract itself is determined to be unenforceable)."

In a special concurrence, Judge Schwartz began:

Because of the stumbling, bumbling, and general ineptitude of the mortgagee and its representatives, the appellant has managed to remain in the mortgaged premises without payment for over fifteen years after defaulting in 1997. While it therefore pains me deeply to do so, I concur in the reversal of the summary judgment of foreclosure against her. I do so for two reasons.

His entire special occurrence begins on page 10 of the opinion.

Rehearing Denied Where Record Insufficient To Support Argument

In Florida Insurance Guaranty Association v. Messina (4D09-4448), the Fourth District denied rehearing of THIS short opinion. In the opinion the court distinguished Florida Insurance Guaranty Ass’n. v. Smothers, 36 Fla. L. Weekly D1217 (Fla. 4th DCA June 8, 2011) and Florida Insurance Guaranty Ass’n. v. Ehrlich, 36 Fla. L. Weekly D939 (Fla. 4th DCA May 4, 2011) as follows:

In Smothers, FIGA filed a demand for an appraisal, not an answer and affirmative defenses. In Ehrlich, the court compelled an answer and affirmative defenses, when FIGA sought additional extensions.

The court also noted that "While FIGA has argued that it did not really contest coverage, there is no record to reflect that." The court continued:

Without showing the circumstances of the settlement and whether there was a real contest to the claim, FIGA has not provided an appellate record sufficient for this court to consider its contentions that it did not deny coverage by affirmative action other than delay. See Applegate v. Barnett Bank, 377 So. 2d 1150 (Fla. 1979). 

The Applegate opinion was also cited in the original opinion which stated, in its entirety:

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla. 1979).

Sanctions Against Counsel Affirmed For Filing Unsupported Defenses

THIS opinion from the Fourth District should cause people to think twice before presenting a defense to a lawsuit solely for the purpose of delay. The Fourth District affirmed an $18,000 sanction against counsel and stated:

Here, we affirm that section 57.105 is applicable in mortgage foreclosure actions to sanction defendants and/or their counsel for asserting defenses which they know or should know are not supported by the material facts of the case, but are nonetheless asserted for the primary purpose of delaying the entry of a final judgment. Furthermore, those who assert such knowingly unsupportable defenses may find themselves liable not just for a portion of the opposing party's attorney's fees, but also for other losses that a trial court finds resulted from the improper delay.

Attorney Fee Judgment Reversed Because FIGA Did Not Deny Claim

In Florida Insurance Guaranty Association v. Smothers (4D09-4597), the Fourth District reversed the trial court's entry of an attorneys' fee judgment against the appellant.

After Mr. Smother's residence was damaged by Hurricane Wilma, his insurer was declared insolvent and "FIGA stepped in to provide a mechanism for the payment of 'covered claims'." "The trial court found that FIGA denied the claim by affirmative action when the independent adjuster found 'NO VISIBLE STORM DAMAGE TO THE INTERIOR'."

FIGA is a statutory creature, “subject to special rules specifically formulated by the Florida legislature.”...While created to cover claims under policies issued by insolvent carriers, “the full gamut of a defunct insurance company's liabilities was not intended to be shifted onto FIGA.”....Chapter 631 was designed to manage, but not bankrupt the statute's funding and payment mechanism....

Here, FIGA never denied coverage. The insured submitted a claim, and FIGA assumed limited responsibility, pursuant to chapter 631. FIGA hired an independent adjuster to inspect the claim and tendered payment. Nothing in FIGA's payment transmittal letter indicated that it denied the claim....Section 631.70 unambiguously creates the boundaries of FIGA's liability for attorney's fees....Here, FIGA did not deny the insured's claim; therefore, section 631.70 bars the application of section 627.428.

To sustain the award of attorney's fees would render the Legislature's creation of section 631.70 meaningless. Therefore, we hold that a dispute about the amount of damages does not constitute a denial of coverage by affirmative action, other than delay, exposing FIGA to attorney's fees under section 631.70. As there was no denial of coverage by affirmative action, we therefore reverse the judgment for the insured and remand the case to the trial court for entry of judgment for FIGA.

Attorney Fee Award After Voluntary Dismissal Reversed

In Guarantee Insurance Company v. Worker's Temporary Staffing Inc. (5D10-1905), the Fifth District reversed the trial court's order awarding attorneys' fees after a voluntary dismissal. The court stated:

Appellant challenges the judgment awarding attorney's fees and costs to Appellee, pursuant to section 627.428, Florida Statutes (2006), after Appellant voluntarily dismissed (without prejudice) its action for unpaid premiums. Because the voluntary dismissal was neither a judgment nor the functional equivalent of a confession of judgment - a precondition to an award under section 627.428 - we reverse.

Attorneys' Fee Claim Does Not Need To Be Raised In A Motion To Dismiss

In Nudel v. Flagstar Bank, FSB (4D10-3001), the Fourth District held "that a defendant is entitled to recover her attorney’s fees as a prevailing party under subsection 57.105(7), Florida Statutes (2009), after the court granted a motion to dismiss a mortgage foreclosure action and dismissed the case without prejudice."

After a foreclosure complaint was filed, "Nudel moved to dismiss the complaint, arguing that Flagstar lacked standing because MERS did not assign the bank the mortgage until after the bank filed the complaint." The trial court agreed and granted the motion to dismiss without prejudice. "Nudel [then] moved for attorney’s fees and costs on April 15, relying in part on the attorney’s fee provision in the mortgage. The circuit court denied the motion for fees, accepting Flagstar’s argument that Nudel had waived entitlement to fees under Stockman v. Downs, 573 So. 2d 835 (Fla. 1991), and Sardon Foundation v. New Horizons Service Dogs, Inc., 852 So. 2d 416 (Fla. 5th DCA 2003), because she had not sought attorney’s fees in her motion to dismiss." The Fourth District held that:

Initially, we hold Nudel did not waive her entitlement to attorney’s fees. It was proper for her to seek attorney’s fees in a motion filed after the entry of the dismissal without prejudice, because she had not yet filed a responsive pleading....Because a motion to dismiss is not a pleading, Stockman does not require the movant to raise the attorney’s fee claim in the motion; rather, “a defendant’s claim for attorney fees is to be made either in the defendant’s motion to dismiss or by a separate motion which must be filed within thirty days following a dismissal of the action. If the claim is not made within this time period, the claim is waived.”...Nudel timely moved for attorney’s fees within thirty days of the dismissal, so she did not waive her claim.

Therefore, the Appellant was entitled to recover her prevailing party attorney fees pursuant to her motion for attorneys fees which was based upon the fee provision in her mortgage.

Three Offer of Judgment Questions Certified To Florida Supreme Court

In Auto-Owners Insurance Co. v. Southeast Floating (09-15846), the Eleventh Circuit certified three questions relating to offers of judgment to the Florida Supreme Court. The first question is below:

DOES FLA. STAT. § 768.79 ALLOW FOR VALID OFFERS OF JUDGMENT IN A SEPARATE SECOND TRIAL; AND, IF SO, MAY OFFERS BE DEEMED VALID IN INSTANCES WHERE AN APPELLATE COURT REINSTATES THE JUDGMENT OF THE FIRST TRIAL?

Question two is phrased as follows:

DOES THE CONDITIONING OF AN OFFER OF JUDGMENT ON THE RESOLUTION AND DISMISSAL WITH PREJUDICE OF THE OFFEREE'S CLAIMS IN THE ACTION AGAINST A THIRD-PARTY RENDER THE OFFER OF JUDGMENT A JOINT PROPOSAL, AS THAT TERM IS USED IN FLORIDA RULE OF CIVIL PROCEDURE 1.442(c)(3)?

The third question is below:

DOES FLA. STAT. § 768.79 APPLY TO CASES THAT ARE GOVERNED BY THE SUBSTANTIVE LAW OF ANOTHER JURISDICTION; AND, IF SO, IS THIS STATUTE APPLICABLE EVEN TO CONTROVERSIES IN WHICH THE PARTIES HAVE CONTRACTUALLY AGREED TO BE BOUND BY THE SUBSTANTIVE LAWS OF ANOTHER JURISDICTION?

11th Circuit Affirms $400,000 Sanction After Counsel Filed Deposition Errata Sheet With 868 Changes

In Norelus v. Denny's Inc. (07-14077), a divided three judge Eleventh Circuit panel released a published opinion and affirmed the district court's order sanctioning the attorneys for the plaintiff.  Judge Carnes wrote the majority opinion. Judge Bowen, United States District Judge for the Southern District of Georgia, sitting by designation, concurred in the opinion with the exception of Section III.C.  The portion of the opinion that Judge Bowen did not concur in is found on pages 49 through 62 of the opinion.  Judge Tjoflat filed a dissenting opinion which begins on page 76.  The trial court's decision was affirmed, however, the portion of the majority opinion which lacked a concurring judge presumably carries the weight of a concurring opinion.  The opinion began:

No one’s memory is perfect. People forget things or get confused, and anyone can make an innocent misstatement or two. Or maybe even three or four. But not 868 of them. In this case, the plaintiff’s attorneys, William and Karen Amlong, filed a sixty-three page errata sheet containing 868 attempted changes to their client’s deposition testimony, which was the sole source of evidentiary support for their client’s claims. The district court exercised its authority under 28 U.S.C. § 1927 to sanction the Amlongs. This is their appeal, or more specifically their second appeal.

This is the second appeal as the trial court had previously entered a sanction order which was reversed with instructions.  See Amlong & Amlong, P.A. v. Denny’s, Inc., 500 F.3d 1230 (11th Cir. 2007).

In this second appeal, the court stated that "n attorney multiplies court proceedings 'unreasonably and vexatiously,' thereby justifying sanctions under 28 U.S.C. § 1927, 'only when the attorney’s conduct is so egregious that it is ‘tantamount to bad faith.’”  Without even attempting to put words into Judge Carnes opinion, I interpret the opinion as having the biggest problem with the fact the the attorneys continued to represent the client, and pursue the same legal theories, after the filing of the errata sheet containing the 868 changes.  The court stated:

As the magistrate judge found and no one (with the possible exception of the dissenting judge on this panel) seriously contests, the improper submission of the massive errata document rendered the eight days spent on Norelus’ deposition a waste of time and money to say nothing of the time the attorneys were forced to spend on the issues created by the document itself. The Amlongs’ decision to press on with Norelus’ claims after the creation of the errata document wasted more time and money. Together, the submission of the errata document and the continued pursuit of Norelus’ claims afterwards unquestionably prolonged and multiplied the proceedings...... 

Still, like Ahab hunting the whale, the Amlongs relentlessly pursued the claims. All the while they blinded themselves to as much of the contradictory evidence as they could. They deliberately did not obtain the deposition testimony of any of Norelus’ co-workers who would have seen or heard something had anything improper occurred. They did not concern themselves with that testimony, according to Karen Amlong, because they assumed all of the witnesses, except for their client, were either lying or simply could not remember witnessing the gross sexual harassment inflicted on her.  When the truth was thrust in the Amlongs’ faces, they stubbornly ignored it and kept on litigating.

The portion of Judge Carnes' opinion which Judge Bowen did not join began: 

Up to this point, we have addressed the issues related to the errata document and the award of sanctions as those issues have been raised and defined since that document was submitted fourteen years ago. Our dissenting colleague, by contrast, has hatched a brand new theory—a theory that was never raised by the parties, never considered by the district court, and never argued to this Court. The theory that he has conjured up is that the errata sheet was really nothing more than a “letter” from Karen Amlong to defense counsel. It was not, he insists, an errata sheet because he thinks it was never presented to the court reporter or affixed to Norelus’ deposition as, he thinks, Federal Rule of Civil Procedure 30 requires. Dissenting Op. at 1. He is wrong on his premises and wrong in his conclusion.

The section later stated:

The first and only time this issue has been raised in the more than fourteen years since the errata document was submitted is now, by our dissenting colleague who wants us to share his novel vision and reverse the district court’s award of sanctions on that basis. Even if his vision had any factual basis, there are two walls of precedent standing against what he wants to do. The first one is our well established rule against reversing a district court judgment on the basis of issues and theories that were never presented to that court—issues not raised in the district court should not be considered on appeal.

Finally, the section concluded "Issues should not sprout like weeds in appellate opinions no matter how fertile the minds of the judges deciding the appeal. We could not reverse the district court based on the dissenting opinion’s new theory of the case, even if it had a factual basis, which it does not."

The final section of the majority opinion, which Judge Bowen did join, addressed whether a party can be awarded those fees and costs that actually stemmed from the sanctions proceeding itself.  The court stated:

This is the first time we have addressed whether a district court may include costs arising from the sanctions proceedings themselves in an award of § 1927 sanctions. Other circuits have tackled this issue in the closely related context of rules-based sanctions. Many of those courts have held that it is within the discretion of a district court to include within a sanctions award costs incurred in obtaining that award.

The court concluded that those fees and costs are awardable and stated:

We begin our analysis of what the statute permits where we always should: the statute’s plain language. See Nguyen v. United States, 556 F.3d 1244, 1250 (11th Cir. 2009). The plain language of 28 U.S.C. § 1927 establishes that, in making a sanctions award to a party, a court may include the “costs, expenses, and attorneys’ fees” that the party victimized by the sanctionable conduct incurred in obtaining the award. Id. After all, those costs are, in the statute’s terms, “incurred because of such conduct.” Id. If there were no sanctionable conduct there would have been no proceeding to impose sanctions. Because the costs arising from the sanctions proceedings were “occasioned by the objectionable conduct,” McMahan, 256 F.3d at 1128 (citing Peterson, 124 F.3d at 1396), a district court may include costs arising from the sanctions proceedings in the sanctions award. 

Because the statutory language is unambiguous, we could end our analysis there.

The opinion went on to discuss policy reasons why the costs incurred in prosecuting a sanctions motion are recoverable.  

The "dissent is organized as follows. Part I sets out Rule 30, explains the purpose of an errata sheet, and addresses how courts enforce Rule 30’s requirements pertaining to errata sheets. Part II initially establishes that Karen Amlong fully understood how, under Rule 30, an errata sheet becomes part of a deponent’s deposition and then explains that she did not intend the 'errata sheet' she sent defense counsel to comply with Rule 30 and become part of Norelus’s deposition. Part III establishes that defense counsel failed to comprehend this and, thus, erroneously concluded and represented to the court that the 'errata sheet' was part of Norelus’s deposition. In turn, part IV shows how defense counsel’s error led to the § 1927 sanctions at issue in this appeal. Finally, part V explains why, in light of the foregoing, levying these sanctions was improper."

Order Denying Attorneys Fees To Prevailing Party Reversed

In Point East Four Condominium Corp., Inc. v. Zevuloni & Associates, Inc. (4D09-3221), the Fourth District reversed the trial court's order declining to award prevailing party attorneys fees.  The court described the facts as follows:

The Condominium Association hired Zevuloni & Associates as a public insurance adjuster to handle its claim for benefits under a casualty insurance policy. The contract for adjustment provided for a fee of 10% of the proceeds recovered by the Association.  There has never been any recovery of insurance benefits by the Association. Nevertheless the public adjuster sued the Association for its fee.

After the trial court granted the associations motion to dismiss, it denied the associations motion for prevailing party attorneys fees as provided in the contract.   The court stated:

The adjuster’s suit for fees without any recovery by the insured Association was meritless and was properly dismissed. The Association was undeniably the prevailing party in that action.

 Because "Courts have no discretion to decline to enforce this kind of contractual attorneys fees provision," the order denying attorneys fees was reversed.

When and To What Extent Are Fees Available To An Insured After An Appraisal

In Travelers of Florida v. Stormont (3D09-1100 & 3D08-3825), the Third District addressed the following: "The main question presented by this appeal is whether, and to what extent, an insured is entitled to attorney’s fees for legal services rendered in connection with an appraisal under an insurance policy."  Generally, the court described the facts as follows:

In January 2006, the car was stolen while in a garage for mechanical work.  The plaintiff-appellee insured retained counsel and submitted a claim to the defendant-appellant insurer. The insurer offered to pay $39,587 based on a valuation by Auto-Source, while the owner claimed a value of $65,000 to $75,000 based on an appraisal by Speed Shop. The insurer objected that Speed Shop was not qualified to appraise the value of the stolen vehicle. In June 2006, Travelers demanded appraisal and appointed Luis Aucar as its appraiser. The insured failed to respond. Instead, in October 2006, the insured filed a suit against the insurer demanding payment of the claim.

With regard to the law, the court stated:

In order to be entitled to attorney’s fees, it must have been reasonably necessary for the insured to file a court action....“The purpose behind section 627.428 is plainly to place the insured or beneficiary in the place she would have been if the carrier had seasonably paid the claim or benefits without causing the payee to engage counsel and incur obligations for attorney’s fees.”...Where suit is filed without any necessity to do so, attorney’s fees under section 627.428 will be denied....If the insured is forced to file suit, and the insurer thereafter pays the award without the necessity of the trial court entering judgment, the confession of judgment doctrine applies. “This doctrine applies where the insurer has denied benefits the insured was entitled to, forcing the insured to file suit, resulting in the insurer’s change of heart and payment before judgment.”...In that circumstance, the insured is entitled to an award of attorney’s fees. With these principles in mind, we turn to the facts of the present case.

The insurer argues that the insured filed suit prematurely. That point is well taken.  In June 2006, the insurer demanded appraisal and appointed its appraiser. For the following five months, the insured failed to respond to the insurer’s letters in which the insurer attempted to move the appraisal process forward....The suit was premature. Once the insurer demanded appraisal, the insured was required to comply with the appraisal clause. Proceeding to court was not justified.

The insured had attempted to disqualify the insurer's appraiser.  On that issue, the court stated:

If the insured believed that the insurer’s appraiser was not competent (where, as here, the appraisal clause required appointment of a competent appraiser), the issue must be raised promptly upon learning of the grounds for disqualification. The correct procedure would be first to make a written demand that the insurer replace the appraiser. If the insurer declines to do so, then the insured must promptly file a complaint in circuit court seeking removal of the appraiser.

In this case, the insurer disclosed the identity of its appraiser in June of 2006. It is clear that the insured learned of the ground for disqualification early on, but the insured’s complaint did not seek disqualification and the insured did not raise the issue by motion until 2008. The insured was not entitled to attorney’s fees for this phase of the trial court proceedings.

The insured also sought attorneys fees for the legal work associated with its filing of a motion to confirm appraisal award after the insurer did not timely pay the award.  On that issue the court stated:

In June 2008, the insured filed a motion to enter judgment in accordance  with the appraisal award. The insurer contends that this was unnecessary and that the insured is not entitled to any attorney’s fees at all. The insurer’s argument is without merit.

The appraisal award was entered in April of 2008. The insurer failed to pay. In June, after almost three months had expired, the insured filed its motion to enter judgment in accordance with the award. It was entirely reasonable for the insured to file this motion after the insurer not only failed to pay the award, but also failed to pay its half of the umpire’s fee.

Six weeks after the insured filed the motion, but before the motion was ruled on, the insurer paid the principal amount of the award. Even later the insurer paid the interest it calculated to be due.

***

The insured acted entirely reasonably in seeking court enforcement of the award and is entitled to attorney’s fees for that phase of the litigation.

Finally, the court discussed the insured's request for a 2.5 multiplier for its attorneys fees.  The court stated:

In this case it was clear that the loss would be covered by the insurance policy and the insured would achieve a recovery. The question was whether the insured could obtain the amount of compensation he sought on the basis that the stolen vehicle was a unique collectible car....In considering the issue now before us, the First District has held that 1.0 is the correct multiplier. The First District reasoned that “[a]though there was some question as to the amount that would be recovered by [the insured] under the insurance policy, there was no question that there would be a recovery of damages.” Reliance Ins. Co. v. Harris, 503 So. 2d 1321, 1323 (Fla. 1st DCA 1987). That logic is applicable here. The multiplier must be eliminated.

Other posts relating to cases discussing appraisal and/or fees are available at the links.

Divided En Banc Fourth DCA On Reciprocity Of Attorneys' Fees

In Florida Hurricane Protection and Awning, Inc. v. Pastina (4D08-4641), a divided en banc Fourth District issued an opinion of the reciprocal application of section 57.105(7), Florida Statutes (2008).  The majority opinion was written by Judge May who was joined by Chief Judge Gross, Judge Warner, Judge Damoorgian, Judge Gerber and Judge Levine.  Judge Taylor wrote a dissent and was joined by Judge Farmer, Judge Stevenson, Judge Hazouri, and Judge Ciklin.  Judge Farmer wrote a dissent and was joined by Judge Hazouri.  Judge Polen was recused.

The court described the dispute as follows:

The contractor failed to complete the installation, forcing the homeowner to hire a replacement contractor to finish the job. She then filed a complaint against the contractor for breach of contract. She sought damages for the cost to complete the work and consequential damages for replacement of a window and frame damaged during a later hurricane. She also requested attorney’s fees. The homeowner prevailed on her breach of contract claim. She then moved for attorney’s fees. Her motion asserted that she was reciprocally entitled to attorney’s fees based on the fee provision in the contract.  The contractor opposed the request for fees. It argued the fee provision was narrow, was triggered only in a collection action, and was inapplicable to any other type of dispute between the parties. The contractor relied on our opinion in Subway.

The majority concluded:

Simply put, the statute means what it says and says what it means; nothing more, nothing less. Our court and others have consistently read the statute in the same way. Our latest pronouncement can be found in Subway Restaurants, Inc. v. Thomas, 860 So. 2d 462 (Fla. 4th DCA 2003). There, Subway filed a breach of contract suit against its franchisee. The franchisee correspondingly filed suit against Subway for wrongful eviction, violation of civil rights, and breach of contract under the lease and franchise agreement. The franchisee requested attorney’s fees.

The franchisee prevailed. Following an appeal, the franchisee sought attorney’s fees, relying on a provision of the contract that provided for fees for collection “on any part of said rental that may be collected by suit . . . .” Id. at 463. The trial court awarded fees based upon section 57.105(6), Florida Statutes, the predecessor of section 57.105(7). We reversed. Because the franchisee’s claim was for wrongful eviction and breach of contract, it “never triggered Subway’s limited entitlement to attorney’s fees.” Id. at 464.

Similarly, here the contract provided fees for the contractor in the event of a collection action. Section 57.105(7) requires reciprocity. Reciprocity would allow for the homeowner to receive fees if she prevailed in a collection action brought by the contractor. That is mutuality; that is reciprocity. To rule otherwise would be tantamount to re-writing the contract between the parties. This we will not do.

Voluntary Dismissal Entitles Party To Prevailing Party Attorneys Fees

In Black Diamond Properties, Inc. v. Haines (5D09-894), the Fifth District held that a party is entitled to prevailing party attorneys fees when a plaintiff voluntarily dismisses an action.  The court stated:

Our court has held that a defendant is a prevailing party when the plaintiff  voluntarily dismisses an action pursuant to rule 1.420(a)(1) and, therefore, the defendant is entitled to recover attorney's fees under a prevailing party attorney's fee statute. Vidibor v. Adams, 509 So. 2d 973 (Fla. 5th DCA 1987). Additionally, a prevailing party is entitled to recover an award of costs pursuant to rule 1.420(d) of the Florida Rules of Civil Procedure following a voluntary dismissal.

Appraisal: When Are You Entitled To Fees And What Are You Entitled To Recover?

In Hill v. State Farm Florida Ins. Co. (2D07-2311), the Second District reversed the trial court's order denying the insured attorneys fees and stated "Although the trial court may very well have reached the correct outcome in this case, we conclude that its legal analysis is inconsistent with our more recent cases."  The court stated:

Accordingly, we reverse the final summary judgment and remand the case for a renewed determination of whether Ms. Hill filed her lawsuit in good faith in order to force State Farm to adjust the claim or whether she filed suit merely as an effort to seek attorneys' fees for the normal process of adjusting the claim. If she filed her lawsuit in good faith in order to force State Farm to adjust the claim, then she is entitled to attorney's fees. If not, then State Farm is not liable for the attorney's fees she incurred as a result of filing suit.

Discussing its recent decision in Goff v. State Farm Florida Insurance Co., 999 So. 2d 684 (Fla. 2d DCA 2008) [discussed HERE]; the Court stated:

It is apparent that some lawyers have read more into Goff than this court intended. Adjusting and settling property claims under insurance policies is never an easy process. It requires a level of good faith and cooperation from all parties. The law does not provide any general mechanism to impose attorneys' fees against one party or the other merely because the negotiation process is difficult. It is only when the claims adjusting process breaks down and the parties are no longer working to resolve the claim within the contract, but are actually taking steps that breach the contract, that the insured may be entitled to an award fees under section 627.428, Florida Statutes (2004). See, e.g., Lewis v. Universal Prop. & Cas. Ins. Co., 13 So. 3d 1079, 1081 (Fla. 4th DCA 2009) (stating that the underlying rationale of awarding attorneys' fees under section 627.428 is the notion that the insureds filed suit "to resolve a legitimate dispute" and not simply to collect attorneys' fees).

Lewis was discussed HERE.  The court continued:

The line between rigorous negotiations and breach of contract is undoubtedly difficult to describe and it is a determination that is fact intensive. This court recently expanded on this issue in reversing a summary judgment in Clifton. 35 Fla. L. Weekly at D365-D366 (holding that summary judgment in favor of the insurer is improper when there was a "bona fide" dispute between the parties that prompted the insured to sue). From the record in this appeal, we question whether this lawsuit was filed to force State Farm to conduct an appraisal or whether it was merely a preemptive lawsuit intended to obtain attorneys' fees for the usual efforts in negotiating an insurance claim. The trial court, however, did not decide this case based on our recent decisions and, thus, none of the parties addressed the issue of whether Ms. Hill needed to file this lawsuit to force State Farm to comply with its contract. Because this issue was not considered at the hearing on the motion for summary judgment, it is not appropriate for this court to base its decision on those cases. Instead, we reverse and remand the case to the trial court to determine whether Ms. Hill may be entitled to fees under the reasoning in Goff and Clifton. In all other respects, we affirm the judgment on appeal.

Clifton was discussed HERE.  Finally, the Court discussed what fees are recoverable:

On remand, if the trial court determines that Ms. Hill is entitled to an award of attorneys' fees, we observe that the scope of the remedy we envisioned in Goff has clearly been misconstrued by Ms. Hill's attorneys in this case. The fees we envisioned in Goff were the fees necessary to force State Farm back to the negotiations table to resolve the dispute within the terms of the insurance contract. The appraisal process, for example, is not legal work arising from an insurance company's denial of coverage or breach of contract; it is simply work done within the terms of the contract to resolve the claim. Thus, except under the most extraordinary of circumstances, we do not envision fees for such work to be recoverable under the rule announced in Goff. Instead, the fees should normally be limited to the work associated with filing the lawsuit after the insurance carrier has ceased to negotiate or has breached the contract and the additional legal work necessary and reasonable to resolve the breach of contract.

Court Sanctions Party & Counsel For Filing Rehearing Motion That Lacked Merit

In Unifirst Corporation v. City of Jacksonville, Tax Collectors Office (1D09-0820), the First District sanctioned a party and its counsel for filing a motion for rehearing when the appellant "knew or should have known that the motion lacks legal merit and violates the legal principles and rules of appellate procedure."  The court stated:

Section 57.105(4) provides that the party seeking sanctions must serve the opposing party with a copy of the motion, but may not file it with 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.” Florida Rule of Appellate Procedure 9.330(a), however, allows a party only ten days to respond to motions for rehearing. Thus, as Appellee acknowledges, it was unable to comply with section 57.105(4) and also timely respond to Appellant’s motion for rehearing. Although Appellee’s motion for attorney’s fees and sanctions was improperly filed, for the reasons explained below, this court, on its own initiative, awards Appellee attorney’s fees. See § 57.105(1), Fla. Stat. (2009) (providing the court may award fees on its own initiative).

***

Appellant filed a motion seeking rehearing or clarification and rehearing en banc. In it, Appellant addressed the merits of the lower court’s final judgment allowing certain documents into evidence and the general sufficiency of the evidence. These arguments were raised in Appellant’s Initial Brief and extensively addressed during oral argument; rearguing these points was improper.

***

Florida Rule of Appellate Procedure 9.330(1) has been interpreted to mean that “[a] motion for rehearing shall not reargue the merits of the court’s order.”...Appellant compounded its error by including in its motion new arguments related to an issue already addressed in its briefs and at oral argument. “[L]egal arguments . . . must be made between the parties before a judicial decision is rendered; not between one litigant and a tribunal which has already ruled.”...To illustrate the egregiousness of Appellant’s violation of this principle, Appellant dedicated less than one page of its Initial Brief to this issue, and cited no cases, either in its briefs or during oral argument; yet in its rehearing motion, Appellant devoted over five pages to the issue and, for the first time, cited and discussed several cases.

Both Florida Rule of Appellate Procedure 9.330 and the cases we have cited existed at the time Appellant filed its motion; thus, Appellant’s attorney knew or should have known that the motion would not be supported by the application of the law to the material facts of this case. Consequently, a sanction of attorney’s fees pursuant to section 57.105(1)(b) is warranted. 

In its motion for rehearing, Appellant also requested a written opinion, arguing that this court’s per curiam affirmance conflicts with an opinion issued by the Third District Court of Appeal and that clarification “would provide a legitimate basis for Supreme Court review.” It is meritless to argue that an opinion which says nothing more than “Affirmed” conflicts with a written opinion issued by another district court.