Fla. Wellness & Rehab. Ctr., Inc. v. Mark J. Feldman, P.A.

• Decision Date: 12 June 2019
• Docket Number: No. 3D19-264,3D19-264
• Parties: Florida Wellness & Rehabilitation Center, Inc., etc., Petitioner, v. Mark J. Feldman, P.A., and Mark J. Feldman, Respondents.
• Court: Florida District Court of Appeals

Florida Wellness & Rehabilitation Center, Inc., etc., Petitioner, v. Mark J. Feldman, P.A., and Mark J. Feldman, Respondents.

No. 3D19-264

Third District Court of Appeal State of Florida

June 12, 2019

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.¹ The Law Firm was discharged, and moved to enforce a charging lien against the Center for legal services and costs.

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 ofmonetary 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 clarificationcontending, 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 certiorariproceedings 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

a. Certiorari Jurisdiction²

"[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...