City of Miami v. Lehman, 61-271

• Decision Date: 06 November 1961
• Docket Number: No. 61-271,61-271
• Citation: 134 So.2d 527
• Parties: CITY OF MIAMI, a municipal corporation, Appellant, v. Victor LEHMAN and Madaline Lehman, his wife; Linton D. Lumpkin and Ann C. Lumpkin, his wife; and Archie S. Black and Gladays D. Black, his wife, Appellees.
• Court: Florida District Court of Appeals

Page 527

134 So.2d 527

CITY OF MIAMI, a municipal corporation, Appellant, v. Victor LEHMAN and Madaline Lehman, his wife; Linton D. Lumpkin and Ann C. Lumpkin, his wife; and Archie S. Black and Gladays D. Black, his wife, Appellees.

No. 61-271.

District Court of Appeal of Florida, Third District.

Nov. 6, 1961.

Rehearing Denied Nov. 27, 1961.

Edward J. Fitzpatrick, Acting City Atty., and Jack R. Rice, Jr., Asst. City Atty., Miami, for appellant.

Lehman & Barrett, Richard H. Hunt and Daniel Neal Heller, Miami, for appellees.

Before PEARSON, TILLMAN, C. J., and CARROLL and HENDRY, JJ.

PEARSON, TILLMAN, Chief Judge.

The City of Miami appeals from a post decretal order directing it to pay the sum of $51,500 to certain attorneys as a fee for their services in prosecuting an appeal in this court. ¹ The order allowing the fee was entered upon the petition of Victor Lehman and Madaline Lehman, his wife; Linton D. Lumpkin and Ann C. Lumpkin, his wife; and Archie S. Black and Gladys D. Black, his wife. These petitioners were defendants, as was the City of Miami, in a complaint to quiet title to a strip of land fifteen feet wide between North Bayshore Drive and Biscayne Bay, running between Northeast 17th Terrace and Northeast 19th Street in the City of Miami. The strip had been platted as lots. The chancellor found that the plaintiffs in the complaint to quiet title owned six of the lots and that the City of Miami owned six of the lots. ²

The notice of appeal from the final decree was filed by the plaintiffs who urged that the city should not have been awarded any of the lots. The City of Miami did not file cross-assignments of error as to the lots awarded to the plaintiffs. The defendants other than the city (who are now the petitioners for the attorneys' fee), filed cross-assignments. The regularly employed attorneys of the city filed an extensive brief urging the errors cross-assigned by the individual defendants, appeared before this court on oral argument, and ably represented the city during the pendency of the appeal. The attorneys for the individual defendants were equally energetic and able. This court held that the city owned all of the lots. Pursuant to the judgment of the appellate court, a final decree was entered. Thereafter the petition for allowance of fees ³ was filed by the individual defendants and the trial judge entered the order appealed. The order set out the basis for the fee allowed. ⁴ As is noted in the order, the individual defendants were not entitled to fees for their defense in the trial court. This determination was made prior to the final decree and was affirmed upon interlocutory appeal to this court. ⁵ Therefore the right, if any, of the petitioners to a fee to be paid by the city must have arisen after the entry of a final decree. Because of this fact, the recital of the city's stipulation with the plaintiffs in the lower court is not germane to the determination of the right to the fee which has been allowed.

The only act of the petitioners upon which the order for payment of the fee can be based is their filing of cross-assignments of error. ⁶ It is possible that without the diligence of the petitioners in this particular no cross-assignments of error would have been filed. ⁷ The record before us establishes that the assignments of error by the plaintiffs were filed on November 25, 1958 and the cross-assignments of the Lehmans were filed on December 3, 1958. Thus it appears that the Lehman cross-assignments of error were filed on the eighth day after the filing of the plaintiffs' assignments of error and there remained the ninth and tenth days on which the city could have filed cross-assignments of error. It is, therefore, possible that the City of Miami may have determined that the cross-assignments of error filed by the Lehmans were adequate and that it was not necessary to file a new set of cross-assignments of error for the city. In this connection it should be noted that the assignments of error of the petitioners, Lumpkin and Black, were filed December 9, 1958 and, in the absence of an order extending the time for filing cross-assignments of error these assignments were filed too late. Thereafter as found by the chancellor and set forth in the order: 'Lehman, Lumpkin and Black having joined forces, filed one brief and the City of Miami, the following day, filed its brief.'

The Supreme Court of Florida in Larson v. Warren, Fla.1961, 132 So.2d 177, 183 has recently restated and applied the general rule that attorney's fees are usually allowed only when provided for by statute or agreement. Further, in reversing the order of the chancellor allowing a fee from a fund in that case, the Supreme Court in discussing the leading case of Tenney v. City of Miami Beach, 152 Fla. 126, 11 So.2d 188, stated:

'The court felt [in the Tenney case] that those property owners who were fairly represented in that suit should not receive the benefits of the litigation without paying their share of the attorneys' fees payable from the assessment the city had collected. They constituted a distinct and restricted class who were on notice of the litigation, its purpose and that it grew out of a single act of the city in imposing an assessment on all members of the class; that the litigation showed that Tenney was suing for a class of more than 170 or 232 lot owners and that there was no apparent effort from the record to bind anyone who was not given an opportunity to appear.'

There is nothing in the pleadings to show that these petitioners were the representatives of a restricted class or to show a community of interest between the petitioners and other taxpayers of the City of Miami. It appears from the record now before us that the petitioners represented a special interest among themselves and not with the other citizens of the City of Maimi. We therefore hold that the opinion of the Supreme Court of Florida in Larson v. Warren, supra, does not authorize the allowance of a fee in this case.

The appellees direct our attention to only one other Florida case, Universal Const. Co. v. Gore, Fla.1950, 51 So.2d 429, 431, as a possible basis for the allowance of a fee. In that case the Supreme Court of Florida approved a fee in a suit brought by holders of municipal recreation bonds who were also general and utility taxpayers of the city. The suit was brought as a class suit to preserve and protect trust funds and it resulted in a judgment in favor of the city. The action was to enforce a contract between the city and a construction company whereby the company agreed to construct a yacht basin and recreational facilities. The court held as follows:

'This court is committed to the doctrine that a trust estate should bear the expense of its administration and that where one of the parties interested brings a suit or takes other steps to protect or restore it, he is entitled to reimbursement out of the fund preserved or from those who accept the benefits of it. Tenney v. City of Miami Beach, 152 Fla. 126, 11 So.2d 188; United States v. Equitable Trust Company, 283 U.S. 738, 51 S.Ct. 639, 75 L.Ed. 1379; Sprague v. Ticonic National Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184. In the light of these cases the chancellor was correct in the allowance of fees to complainants' solicitors from the rentals recovered.'

The factual dissimilarity between the two cases is immediately apparent. In this case there is no fund. The original suit was a quiet title proceeding by certain individuals against other individuals and the City of Miami. The City of Miami had title and possession at the time that the suit was begun. The ultimate final decree simply eliminated a claim by individuals which might have been a cloud upon the city's title. The city was no richer at the end of the suit than it was at the beginning. The ultimate result was that the individual defendants did not want the bay bottom in front of the strip filled in by the individual plaintiffs. The defendants won their suit. Further, in the Universal Const. Co. case, supra, the city took no steps to protect funds which were due it, whereas, in the instant case the city took an active part in the appeal from its inception. We conclude that there is no basis for the allowance of a fee under the doctrine of either the Tenney case, supra, or the Universal Const. Co. case, supra.

An examination of cases from other jurisdictions reveals no ground for the allowance of attorneys' fees to the petitioners. The Supreme Court of California in the case of In re Pacific Coast Building-Loan Ass'n., 15 Cal.2d 155, 99 P.2d 261, considered the question of the allowance of attorney's fees to a group of minority shareholders who had successfully augmented the assets to be distributed to all of the shareholders of a dissolved financial institution. The petitioners contended that the action taken by them was necessary to preserve the rights of the entire group of member-ship shareholders because the state-appointed commissioner took a neutral position. The Supreme Court of California in the denial of the fee pointed out that the proceedings were not in the nature of a suit to obtain or protect a common fund because the fund was already in existence and under the administration of a...