Opinion
No. 3D19-264
06-12-2019
Florida Wellness & Rehabilitation Center, Inc., etc., Petitioner, v. Mark J. Feldman, P.A., and Mark J. Feldman, Respondents.
Ricardo A. Banciella, P.A., and Ricardo A. Banciella, for petitioner. Mark J. Feldman, P.A., and Mark J. Feldman, for respondents.
Not final until disposition of timely filed motion for rehearing. Lower Tribunal No. 16-50 A Writ of Certiorari to the Circuit Court for Miami-Dade County, Appellate Division, Bertila Soto, Chief Judge and Pedro P. Echarte, Jr. and Lisa S. Walsh, Judges. Ricardo A. Banciella, P.A., and Ricardo A. Banciella, for petitioner. Mark J. Feldman, P.A., and Mark J. Feldman, for respondents. Before EMAS, C.J., and SCALES and LINDSEY, JJ. EMAS, C.J.
I. INTRODUCTION
Florida Wellness & Rehabilitation Center, Inc. ("the Center") seeks second-tier certiorari review from an order of the circuit court, in its appellate capacity, denying the Center's motion to enforce the previously-issued mandate awarding the Center appellate attorney's fees. The circuit court concluded that the law of the case doctrine precluded it from enforcing its mandate because this court, in a subsequent appeal in the same case, denied the Center's motion for appellate attorney's fees. We hold that the law of the case doctrine does not apply, and the circuit court's application of that doctrine constitutes a departure from the essential requirements of the law. We therefore grant the petition and quash the circuit court's order.
II. FACTS AND PROCEDURAL BACKGROUND
Mark Feldman, P.A. ("the Law Firm"), represented the Center in a personal injury protection (PIP) lawsuit brought against United Automobile Insurance Company in county court. The Law Firm was discharged, and moved to enforce a charging lien against the Center for legal services and costs.
The parties eventually reached a settlement and the case was voluntarily dismissed.
In 2016, the trial court granted the Center's motion for summary judgment on the charging lien, holding that because "the litigation produce[d] no judgment of monetary value for the client, the Court may not impose a charging lien for the attorney's benefit."
The trial court entered judgment, denying the Law Firm's motion to enforce a charging lien against the Center, and the circuit court, on August 30, 2017, affirmed the trial court's 2016 order in an unelaborated per curiam opinion.
a. The Center's motion for appellate attorney's fees filed in the appellate division of the circuit court
During the course of the appeal to the circuit court, the Center sought appellate attorney's fees on two separate grounds: (1) Florida Rule of Appellate Procedure 9.140(b) (attorney's fees as a sanction), alleging the Law Firm's initial brief and the arguments contained in that brief were "frivolous or in bad faith;" and (2) section 768.79, Florida Statutes (2017) (offer of judgment statute).
The circuit court granted the Center's motion for appellate attorney's fees as a sanction pursuant to rule 9.410(b) and remanded to the trial court "to determine the amount of a reasonable fee." The circuit court also granted the Center's motion for appellate attorney's fees pursuant to section 768.79, conditioned upon the trial court's "determination of sufficiency of proposal." On January 9, 2018, the circuit court's appellate mandate issued.
Meanwhile, on November 29, 2017, the Law Firm filed a petition for second-tier certiorari with this court, challenging the circuit court's per curiam affirmance of the county court judgment and order denying the Law Firm's charging lien. Importantly, the Law Firm's petition also sought review of the circuit court order awarding appellate attorney's fees under rule 9.410(b) and section 768.79. We denied the Law Firm's petition, without opinion, on February 9, 2018.
b. The Center's motion for appellate attorney's fees filed in this Court
As it did during the appeal to the circuit court, the Center filed motions for attorney's fees with this court during the pendency of the Law Firm's 2017 petition seeking review of the circuit court's decision.
The Center's motion sought an award of fees as a sanction (pursuant to rule 9.410(b) and section 57.105, Florida Statutes) and under the offer of judgment statute (section 768.79, Florida Statutes). Many (but not all) of the arguments were the same as those set forth in the motion for appellate attorney's fees filed with (and granted by) the appellate division.
This court denied the Center's motion for appellate attorney's fees as a sanction under rule 9.410(b) and section 57.105. However, we conditionally granted the motion for appellate attorney's fees based on the offer of judgment statute and "remanded to the trial court to fix amount, conditioned upon the trial court determining that [the Center] has satisfied the conditions imposed under Section 768.79, Florida Statutes."
Following this court's order partially granting and partially denying the Center's motion for attorney's fees, the Law Firm moved for clarification contending, among other things, that "[s]ince this court denied [the Center's] attorneys' fees as sanction, pursuant to Fla. R. App. P. 9.410 and § 57.105, Fla. Stat. in this appeal, it would appear [the Center's] fees as a sanction, pursuant to Fla. R. App. P. 9.410, in the circuit court must also be denied." We denied the Law Firm's motion for clarification.
c. Proceedings on remand to the trial court
Thereafter, and pursuant to the mandate, the Center filed in the trial court a motion for an evidentiary hearing to determine the amount of attorney's fees to be awarded as a sanction (based on the circuit court order awarding same and remanding for determination of amount).
At the same time, the Law Firm filed an emergency motion to dismiss the claim for fees as a sanction. It argued that this court's order denying the Center's motion for rule 9.410(b) fees on certiorari review controlled over the appellate division's order granting rule 9.410(b) fees, and that, therefore, the trial court lacked "subject matter jurisdiction to hear the [Center's] pending motion for attorney's fees against Mark J. Feldman, P.A."
The trial court denied the Law Firm's motion to dismiss but, at the fee hearing, the Law Firm moved for reconsideration of the denial, now arguing that fees were precluded based on the law of the case doctrine. The Law Firm argued that this court's subsequent denial of the fees-as-a-sanction motion in the certiorari proceedings constitutes the law of the case on the Center's entitlement to appellate attorney's fees as a sanction, precluding the trial court from proceeding on the circuit court's earlier order (and mandate on same) awarding fees as a sanction and remanding for a determination of amount. After further hearing and additional memoranda, the trial court agreed with the Law Firm and, based upon an application of the law of the case doctrine, denied the Center's motion to determine the amount of appellate attorney's fees to be awarded as a sanction pursuant to the circuit court's order and mandate.
The Center then filed, with the circuit court, the underlying motion to enforce the circuit court's January 2018 mandate on the order awarding the Center appellate attorney's fees as a sanction. The circuit court denied the Center's motion, relying primarily on Langer v. Fels, 93 So. 3d 1069 (Fla. 4th DCA 2012) (holding that the law of the case doctrine precluded an award of trial level fees because the district court had already, in the original appeal on the merits, denied appellate fees on the same statutory grounds) and Salta Inv., Inc. v. Silva, 584 So. 2d 172 (Fla. 3d DCA 1991) (Salta II) (same). This petition for certiorari review followed.
III. DISCUSSION
This court's certiorari review of an attorney's fee order, entered by the circuit court in its appellate capacity, might sometimes constitute first-tier, rather than second-tier, review. See, e.g., Ramirez v. United Auto. Ins. Co., 67 So. 3d 1174, 1175-76 (Fla. 3d DCA 2011) (noting: "Because the order denying appellate fees was the first ruling on the question, we do not think that, properly viewed, this proceeding is the second, but rather the first tier of appellate review . . . ."). However, such is not the case in the instant petition, given that the issue before us—whether the law of the case doctrine applied to our denial of appellate fees on certiorari—was first considered by the trial court and then by the appellate division of the circuit court on the Center's motion to enforce its mandate. For instance, in its order denying the Center's motion to enforce mandate, the circuit court described the issue before it: "this Court is left to decide whether the trial court failed to carry out this Court's mandate to set fees or whether the Third District's one-sentence order denying fees based upon § 57.105 and Rule 9.410 . . . serves as the 'law of the case' on all fees incurred by [the Center] as a result of defending Mark Feldman's meritless appeals." This is therefore the second time the law of the case issue will be considered in an appellate setting, and is properly treated as a petition for second-tier certiorari.
"[W]hen a district court considers a petition for second-tier certiorari review, the inquiry is limited to whether the circuit court afforded procedural due process and whether the circuit court applied the correct law, or, as otherwise stated, departed from the essential requirements of law." Custer Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d 1086, 1092 (Fla. 2010) (quotation omitted). A departure from the essential requirements of law is more than "simple legal error." Id. Instead, it is when "the lower tribunal has violated a clearly established principle of law resulting in a miscarriage of justice." Id.
We have held that "when a lower court fails to follow the law of the case, certiorari is warranted 'because such failure exceeds the court's role in the appellate process.'" United Auto. Ins. Co. v. Comprehensive Health Ctr., 173 So. 3d 1061, 1065 (Fla. 3d DCA 2015) (quoting Dougherty v. City of Miami, 89 So. 3d 963, 966 (Fla. 3d DCA 2012)). This Court has also held that "the failure of the circuit court to grant an award of appellate fees, conditioned upon meeting the terms of the offer of judgment statute, . . . is a departure from the essential requirements of the law." Id at 1069-70; see also State Farm Fire & Cas. Co. v. Rembrandt Mobile Diagnostics, Inc., 93 So. 3d 1161, 1162 (Fla. 4th DCA 2012) (holding that "the circuit court, in its appellate capacity, departed from the essential requirements of the law in denying the petitioner's motion for entitlement to recover a conditional award of appellate costs and attorney's fees under the proposal for settlement statute"). The question here is whether certiorari relief is warranted when the circuit court's decision not to enforce its own mandate on an order awarding fees under rule 9.410 is premised upon an incorrect application of the law of the case doctrine, or whether such action constitutes mere legal error, not subject to relief by second-tier certiorari.
If the failure to award nondiscretionary attorney's fees constitutes a departure from the essential requirements of law for purposes of second-tier certiorari, it necessarily follows that the court's failure to enforce its own mandate on an order awarding attorney's fees must likewise constitute such a departure.
While the circuit court's application of the law of the case doctrine may constitute simple legal error, it is the court's refusal to enforce its own mandate—a nondiscretionary function—that satisfies the requisites for certiorari relief. See Dougherty ex rel. Eisenberg v. City of Miami, 23 So. 3d 156 (Fla. 3d DCA 2009) (granting second-tier certiorari where the circuit court failed to apply law of the case, explaining—in part—that the circuit court's 2008 appellate decision failed to apply correct law when it failed to enforce its 2006 decision); see also Metro. Dade Cty. v. Dusseau, 826 So. 2d 442, 444 (Fla. 3d DCA 2002) (holding: "Upon the issuance of a mandate from an appellate court, the lower court's role becomes purely ministerial, and its function is limited to obeying the appellate court's order or decree. A trial court does not have discretionary power to alter or modify the mandate of an appellate court in any way, shape, or form") (quotation omitted). Certiorari review is therefore appropriate to determine whether the circuit court's refusal to enforce its own mandate constitutes a departure from the essential requirements of law. Compare with Vill. of Palmetto Bay v. Palmer Trinity Private Sch., Inc., 128 So. 3d 19 (Fla. 3d DCA 2012) (denying certiorari where the petitioner argued the appellate division departed from the essential requirements of law by enforcing its previous mandate); see also Dep't of Highway Safety & Motor Vehicles v. Azbell, 154 So. 3d 461 (Fla. 5th DCA 2015) (same).
b. The Merits
We hold that the circuit court, sitting in its appellate capacity, departed from the essential requirements of the law when it denied the Center's motion to enforce the circuit court's own mandate. The law of the case doctrine does not apply such that this court's denial of a motion for appellate attorney's fees under rule 9.410 precludes enforcement of the circuit court's earlier mandate.
This Court has explained the law of the case doctrine as follows:
The law of the case doctrine applies where successive appeals are taken in the same case. It provides that questions of law decided on appeal to a court of ultimate resort must govern the case in the same court and the trial court, through all subsequent stages of the proceedings.United Auto. Ins. Co., 173 So. 3d at 1065 (internal citations and quotations omitted); see also Dougherty, 23 So. 3d at 158 (noting that "[t]he only exception to this doctrine is . . . that an appellate court has the power to reconsider and correct an erroneous ruling that has become the law of the case where a prior ruling would result in a 'manifest injustice'") (citation omitted). The doctrine applies to issues explicitly ruled upon by the court, and to "those issues which were implicitly addressed or necessarily considered by the appellate court's decision." Specialty Rests. Corp v. Elliott, 924 So. 2d 834, 837 (Fla. 2d DCA 2005).
Pursuant to the law of the case doctrine, a lower court cannot change the law of the case as established by the highest court hearing the case, and a trial court must follow prior rulings of the appellate court as long as the facts on which such decision are based continue to be the facts of the case. And, although an appellate court has the power to change the law of the case established in its prior decision where adherence to the rule would result in a manifest injustice a question of law decided on appeal will seldom be reconsidered or reversed, even when it appears to have been erroneous.
The determination of whether a prior appellate court ruling on attorney's fees binds a lower court depends, in part, on the type of fees requested and whether a ruling would require a court to make findings of fact. Courts have generally held that a denial (by the district court) of an attorney's fee award as a sanction does not preclude a trial court from awarding fees on the same statutory grounds. See, e.g., Labbee v. Harrington, 957 So. 2d 1188 (Fla. 3d DCA 2007) (holding this court's prior ruling on section 57.105 fees was not law of the case); Pompano Masonry Corp. v. Anastasi, 125 So. 3d 210 (Fla. 4th DCA 2013) (holding law of the case did not apply to the district court's denial of fees under rule 1.730(c)); Shuck v. Smalls, 101 So. 3d 924, 930 (Fla. 4th DCA 2012) (holding: "A prior denial of appellate attorney's fees under section 57.105 does not preclude a trial court's award of trial level attorney's fees in the same action under section 57.105"); Williams v. Cadlerock Joint Venture LP, 14 So. 3d 292 (Fla. 4th DCA 2009) (holding that previous denial of section 57.105 fees on appeal did not preclude an award at the trial level); McNamara v. City of Lake Worth, 956 So. 2d 509 (Fla. 4th DCA 2007) (stating: "[W]e conclude that our prior denial of appellate fees under section 57.105 does not preclude the trial court's award of trial level attorney's fees in the same action").
In denying the Center's motion to enforce mandate, the trial court relied upon our decision in Salta II and the Fourth District's decision in Langer. Each of these cases held that the law of the case doctrine precluded an award of trial level fees because the district court had already, in the original appeal on the merits, denied appellate fees on the same statutory grounds. However, both Salta II and Langer involved statutes that entitle a party, as a matter of law, to an award of attorneys' fees when certain statutory criteria are met. In Anastasi, 125 So. 3d at 212, our sister court explained the relevant distinction:
In Langer, we reversed the trial court's entry of fees under sections 733.609 and 733.619, Florida Statutes. In McNamara, we affirmed the trial court's entry of attorneys' fees under section 57.105, Florida Statutes. The distinction between Langer and McNamara is the statutory bases underlying the motions for attorneys' fees. Langer addressed statutes that provide attorneys' fees as a matter of law when certain criteria are met. Thus, this court's rejection of entitlement under those statutes was binding law of the case. In contrast, the statute at issue in McNamara involved a sanction centered around factual determinations by the trial court. Thus, this court's rejection of attorneys' fees under the sanction provision was not binding law of the case.See also Shuck, 101 So. 3d at 930 n. 4 (explaining that reliance on Langer was misplaced because it "did not involve section 57.105 fees").
Rule 1.730(c) is a sanctions provision. Thus, we find that an appellate court's rejection of appellate attorneys' fees under rule 1.730(c) does not preclude the trial court from granting trial level attorneys' fees under the same rule.
Rule 9.410 establishes the procedure by which the court, upon its own motion or upon the motion of a party, may impose sanctions on a party. This court has held: "Rule 9.410(a), (b)(1), provides for sanctions for the filing of any brief that is deemed to be frivolous." Aghion v. Franco Invs., LLC, 174 So. 3d 578, 579 (Fla. 3d DCA 2015). Whether a party has filed a frivolous appeal generally depends on the particular documents and issues before the tribunal, not a list of statutory criteria. See, e.g., Aspen Air Conditioning, Inc. v. Safeco Ins. Co. of Am., 170 So. 3d 892, 898 (Fla. 3d DCA 2015) (finding the appellant's initial brief "wholly without factual or legal basis," and awarding the appellee appellate attorney's fees under section 57.105(a) and rule 9.410); see also Visoly v. Sec. Pac. Credit Corp., 768 So. 2d 482, 490-91 (Fla. 3d DCA 2000) (holding: "An appeal is defined as frivolous if it presents no justiciable question and is so devoid of merit on the face of the record that there is little prospect it will ever succeed.")
That rule provides in part:
(a) Court's Motion. After 10 days' notice, on its own motion, the court may impose sanctions for any violation of these rules, or for the filing of any proceeding, motion, brief, or other document that is frivolous or in bad faith. Such sanctions may include reprimand, contempt, striking of briefs or pleadings, dismissal of proceedings, costs, attorneys' fees, or other sanctions.
(b) Motion by a Party.
(1) Applicability. Any contrary requirements in these rules notwithstanding, the following procedures apply to a party seeking an award of attorneys' fees as a sanction against another party or its counsel pursuant to general law.
(2) Proof of Service. A motion seeking attorneys' fees as a sanction shall include an initial certificate of service, pursuant to rule 9.420(d) and subdivision (b)(3) of this rule, and a certificate of filing, pursuant to subdivision (b)(4) of this rule.
(3) Initial Service. A copy of a motion for attorneys' fees as a sanction must initially be served only on the party against whom sanctions are sought. That motion shall be served no later than the time for serving any permitted response to a challenged document or, if no response is permitted as of right, within 20 days after a challenged document is served or a challenged claim, defense, contention, allegation, or denial is made at oral argument. A certificate of service that complies with rule 9.420(d) and that reflects service pursuant to this subdivision shall accompany the motion and shall be taken as prima facie proof of the date of service pursuant to this subdivision. A certificate of filing pursuant to subdivision (b)(4) of this rule shall also accompany the motion, but should remain undated and unsigned at the time of the initial service pursuant to this subdivision.
(4) Filing and Final Service. If the challenged document, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected within 21 days after initial service of the motion under subdivision (b)(3), the movant may file the motion for attorneys' fees as a sanction with the court (A) no later than the time for service of the reply brief, if applicable, or (B) no later than 45 days after initial service of the motion, whichever is later.
We also note that unlike (for example) an award of attorney's fees under the offer of judgment statute—which is required "as a matter of law when certain criteria are met," Anastasi, 125 So. 3d at 212—a court's grant or denial of attorney's fees as a sanction under rule 9.410 is a discretionary decision. See Nesci v. Duffau, 913 So. 2d 659 (Fla. 3d DCA 2005); Andrews v. Palmas De Majorca Condo., 898 So. 2d 1066 (Fla. 5th DCA 2005). In other words, this court could have exercised its discretion to deny the Center's motion for fees as a sanction, regardless of its determination of whether the Law Firm's petition was frivolous.
We further note that this court conditionally granted the Center's motion for appellate attorney's fees on an alternative basis (i.e., offer of judgment), which could have factored into this court's exercise of its discretion in denying fees as a sanction under rule 9.410(b).
Here, the circuit court in its appellate capacity awarded rule 9.410(b) fees, finding the Law Firm's direct appeal frivolous. In a subsequent petition to this court, the Law Firm challenged both the circuit court's affirmance of the trial court order denying the charging lien, as well as the circuit court's order awarding fees pursuant to rule 9.410(b)). We denied the Law Firm's petition as to both grounds, while also denying the Center's motion, filed with this court, seeking rule 9.410(b) attorney's fees as a sanction in the second-tier certiorari proceeding. Naturally, many of the arguments raised in the petition filed in this court were previously raised in the appeal to the circuit court. However, the proceedings and pleadings were not identical, and each motion for appellate attorney's fees required the circuit court, and this Court, to make separate determinations on whether the particular proceeding, pleading or contention was frivolous.
CONCLUSION
This court's denial of the Center's motion for appellate attorney's fees as a sanction pursuant to rule 9.410 did not constitute law of the case such that it invalidated the circuit court's previous order (and its mandate on that order) granting the Center's motion for attorney's fees as a sanction for proceedings before it. See Anastasi, 125 So. 3d at 212; Cadlerock, 14 So. 3d at 294. Nor did this court's ruling on that motion relieve the county court of its obligation, on remand, to enforce the circuit court's mandate to determine the amount of attorney's fees to be imposed.
We therefore grant the petition and quash the order of the circuit court, in its appellate capacity, denying the Center's motion to enforce mandate. We remand to the circuit court for further proceedings.