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.
