Antunez v. Whitfield, No. 4D06-4420 (Fla. App. 1/2/2008)

Decision Date02 January 2008
Docket NumberNo. 4D06-4420.,4D06-4420.
CourtFlorida District Court of Appeals

David B. Pakula of David B. Pakula, P.A., Pembroke Pines, for appellant.

Yelena Shneyderman of Stephens, Lynn, Klein, et al., Miami, for appellee.

TRAWICK, DARYL E., Associate Judge.

This case arises from a negligence claim brought by Whitfield against Antunez for personal injuries suffered in an automobile accident. After the trial court referred the case to non-binding arbitration, the arbitrator awarded Whitfield damages in the amount of $8,860.08. The arbitration award included $1,000 for property damage, $5,360.08 for medical bills, and $2,500 for pain and suffering. After entry of the award, Antunez requested a trial de novo. Prior to trial, Antunez agreed to pay Whitfield $1,000 for the property damage. As a result, at trial, Whitfield did not pursue her property damage claim. At the conclusion of the trial, the jury awarded Whitfield a total of $7,403, including $6,127 for medical expenses, $1,276 for lost wages and $0 for pain and suffering. Whitfield later sought an award of taxable costs, which the trial court granted in the amount of $2,072.75. On March 1, 2006, a final judgment was entered in the amount of $9,475.75, including the verdict and taxable costs. Whitfield also moved for the award of attorney's fees and costs pursuant to section 44.103(6), Florida Statutes (2006), claiming that her award was more favorable at trial than at arbitration. She argued that taxable costs should be included in making this determination — in other words, taxable costs should be added to the verdict when comparing the trial award to the arbitration award. The trial court agreed with Whitfield, and on October 10, 2006, awarded her $6,482.50 in attorney's fees and costs. This appeal followed that award.

The issue presented here is this — when considering a prevailing party's entitlement to attorney's fees pursuant to section 44.103(6), should taxable costs be considered as part of the judgment in a trial de novo when determining whether a party received a more favorable award at trial than in non-binding arbitration?

Prior to October 1, 2007, section 44.103(6) read:

The party having filed for a trial de novo may be assessed the arbitration costs, court costs, and other reasonable costs of the party, including attorney's fees, investigation expenses, and expenses for expert or other testimony or evidence incurred after the arbitration hearing if the judgment upon the trial de novo is not more favorable than the arbitration decision.

However, as of October 1, 2007, section 44.103(6) was amended to read (in applicable part):

Upon motion made by either party within 30 days after entry of judgment, the court may assess costs against the party requesting a trial de novo, including arbitration costs, court costs, reasonable attorney's fees, and other reasonable costs such as investigation expenses and expenses for expert or other testimony which were incurred after the arbitration hearing and continuing through the trial of the case in accordance with the guidelines for taxation of costs adopted by the Supreme Court. Such costs may be assessed if:


(b) The defendant, having filed for a trial de novo, has a judgment entered against the defendant which is at least 25 percent more than the arbitration award. For purposes of a determination under this paragraph, the term "judgment" means the amount of the net judgment entered, plus any post-arbitration settlement amounts by which the verdict was reduced.

In considering whether the facts of this case would trigger an entitlement to attorney's fees, this Court must first determine whether the pre-October 1, 2007 or the amended post-October 1, 2007 version of section 44.103(6) applies. The question of whether a statute is to be applied retroactively or prospectively turns on whether the statute is procedural or substantive in nature. Alamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352 (Fla. 1994); Fogg v. Southeast Bank, 473 So. 2d 1352 (Fla. 4th DCA 1985). As this Court explained in Fogg:

Generally, the statutes operate only prospectively as they might otherwise impinge upon vested rights or create new liabilities. On the other hand, statutes relating to remedies or procedure and including forfeitures operate retrospectively in the sense that all pending proceedings, including matters on appeal, are determined under the law in effect at the time of decision rather than that in effect when the cause of action arose or some earlier time.

(emphasis added). Id. at 1353. Thus, in order to determine which version of section 44.103(6) to apply, this Court must determine whether section 44.103(6) relates to procedure or remedies, or instead, is substantive in nature. See Smiley v. State, 966 So. 2d 330 (Fla. 2007) (when analyzing the retroactivity of a statute the key determination is whether the change is procedural or substantive). Procedural and substantive laws differ in that "substantive law prescribes duties and rights and procedural law concerns the means and methods to apply and enforce those duties and rights." Mancusi, 632 So. 2d at 1357. In Mancusi, the Supreme Court found that section 768.71(1)(a), Florida Statutes (1987), which limits punitive damages to no more than three times the compensatory damage award, was substantive in nature because the statute affects a plaintiff's right to obtain punitive damages instead of outlining procedures to recover them. Id. at 1358. See also Ace Disposal v. Holley, 668 So. 2d 645, 646 (Fla. 1st DCA 1996) (amendment is substantive if it changes the amount of benefits that can be received); Richardson v. Honda Motor Co., Ltd., 686 F. Supp. 303 (M.D. Fla. 1998) (statute which creates a right to attorney's fees is substantive in nature); L. Ross, Inc. v. R.W. Roberts Construction Co., Inc., 466 So .2d 1096 (Fla. 5th DCA 1985), affirmed, 481 So. 2d 484 (Fla. 1986) (amendment that repealed a percentage limitation on attorney's fees is substantive). But see Division of Worker's Compensation v. Brevda, 420 So. 2d 887 (Fla. 1st DCA1982) (holding that an amendment effective before the judgment was entered that repealed the right to attorney's fees did not remove a substantive right because a right to fees does not vest until judgment); Rustic Lodge v. Escobar, 729 So. 2d 1014, 1015 (Fla. 1st DCA 1999) ("Remedial statutes simply confer or change a remedy in furtherance of existing rights and do not deny a claimant his or her vested rights").

In this case, Whitfield's right to obtain attorney's fees was affected by the amendment to section 44.103(6) because it altered the requirements that needed to be met before an award would have been proper. Her right to attorney's fees had vested prior to the October 1, 2007 amendment, since a final judgment was entered pursuant to the requirements of the original section 44.103(6). If the amended statute were applied to these facts, she would no longer be entitled to those fees. Thus, the amendment to the statute appears to be substantive. However, such a conclusion cannot be reached so easily. The problem with simply categorizing this amendment as a substantive change is that the amendment does not create a new right or eliminate an existing right, but instead seems to articulate a new process for determining entitlement to attorney's fees. Thus, the amended statute can also be viewed as merely altering the "methods and means" that are used to calculate the threshold requirements for an award of attorney's fees. In other words, rather than altering rights, the amendment merely outlines the method of calculating when a judgment in a trial de novo will be considered more or less favorable than the non-binding arbitration award for the purpose of awarding attorney's fees. Therefore, the amendment can be viewed as either procedural or substantive.

The distinction between substantive and procedural statutory amendments is a fine one, and may even be illusory, particularly where, as here, the amendment being considered is procedural in nature but directly affects vested rights. The First District, when confronted with amendments to the worker's compensation statute (which also grants attorney's fees), has consistently found that whenever amendments affect a party's right to attorney's fees, they are to be viewed as substantive regardless of the aspect of the statute. See Baptist Manor Nursing Home v. Madison, 658 So. 2d 1228 (Fla. 1st DCA 1995) (amendment that repealed the 21-day period in which an employer must accept the claim for benefits or be liable for attorney's fees was substantive); Kraft Dairy Group v. Sorge, 634 So. 2d 720 (Fla. 1st DCA 1994) (holding that because attorney's fees provisions directly affect the rights of the parties, "amendments to the attorney fee statute occurring after the worker's compensation claimant's injury may not be retroactively applied"); Foliage Design Systems, Inc. v. Fernandez, 589 So. 2d 389 (Fla. 1st DCA 1991) (amendment that placed a ceiling for computation of attorney's fees is substantive and cannot be applied retroactively); Sir Electric, Inc. v. Borlovan, 582 So. 2d 22, 23 (Fla. 1st DCA 1989) ("statutory amendment changing the measure of attorney's fees is substantive, and cannot be applied retroactively"); Volusia Memorial Park v. White, 549 So. 2d 1114, 1118 (Fla. 1st DCA 1989) (holding that amendment that adds a "bad faith" requirement is substantive and that "the substantive rights of the parties are fixed as of the date of the injury and are not subject to impairment by subsequent amendment to the law").

Considered in the light of the issues presented here, the "bright line" analysis of these First District cases is persuasive. We hold that...

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