Massey v. David, SC07-776.

Citation979 So.2d 931
Decision Date03 April 2008
Docket NumberNo. SC07-776.,SC07-776.
PartiesGary MASSEY, Appellant, v. Calvin F. DAVID, Appellee.
CourtUnited States State Supreme Court of Florida


This case is before the Court on appeal from a decision of the First District Court of Appeal, Massey v. David, 953 So.2d 599 (Fla. 1st DCA 2007) (Massey II), which declared a state statute to be invalid. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.


Appellant Massey entered into a contract with Appellee, attorney David, in connection with injuries allegedly suffered by Massey due to his exposure to chemicals released by companies previously known as Koppers Company and Cabot Carbon Corporation, and which are now collectively known as Beazer East, Inc. (hereinafter "the Company"). See Massey v. David, 831 So.2d 226, 229 (Fla. 1st DCA 2002) (Massey I); Massey v. Beazer East, Inc., 712 So.2d 1265, 1265 (Fla. 1st DCA 1998). The contract between David and Massey specifically provided:

In the event a dispute arises . . . the Client and Lawyer shall not make arbitrary decisions, but shall make decisions based on all facts reasonably available. In the event any dispute cannot be resolved between Lawyer and Client, the dispute will be resolved by Russell Peavyhouse after joint consultation with the Client and the Lawyer and Russell Peavyhouse's decision as an arbitrator will be binding on both the Client and the Lawyer. This provision includes all manner of things that could be in dispute, including but not limited to, pleadings, discovery, settlement, trial tactics and all other things related to the representation of the Client by the Lawyer.

Massey I, 831 So.2d at 229 (emphasis supplied).1 When a disagreement arose between Massey and David with regard to a possible settlement with the Company, David submitted the dispute to the arbitrator. See id. at 229. The arbitrator decided that Massey should accept the settlement. See id. at 229-30.

Contrary to the wishes of Massey, David then filed a Motion to Approve Settlement with the trial court. See id. at 230. Despite the serious conflict of interest, David allegedly appeared on behalf of Massey at the hearing on the motion. See id. During that hearing, David advocated on his own behalf but he did not inform Massey that he should retain independent counsel. See id. The trial court orally granted the Motion to Approve Settlement and directed Massey to sign a written release. See id. The court noted that if Massey refused to follow the directions of the court, it would issue a written order. See id. After Massey discharged David, Massey received a copy of the release by mail with instructions from David which directed him to sign the document. See id. When Massey refused, David renewed the Motion to Approve Settlement, which the trial court granted. See id. In accordance with the order of the trial court, the arbitrator in connection with the underlying settlement dispute was appointed to serve in the capacity of Guardian Ad Litem and signed the release on behalf of Massey. See id. The settlement required payment of $795,000 to Massey. See id. at 231. Fees and costs were to be paid to David's firm and another firm, Merkle & Magri, P.A., which Massey had retained and then terminated before he retained David. See id. at 229, 231. David's firm received a final fee and cost judgment in the amount of $193,824.59, and Merkle & Magri, P.A., received a final judgment in the amount of $420,396.75. See id. at 231.

Massey subsequently initiated a separate action against David in which he alleged legal malpractice. See Massey II, 953 So.2d at 601.2 The trial court bifurcated the proceedings, with a Phase I trial to be held on negligence and liability issues, and a Phase II trial to be held, if necessary, on the issue of damages suffered by Massey. See id. During Phase I, the jury found that David was negligent and that the negligence of David caused damage to Massey. See id. However, during Phase II, the jury awarded zero damages to Massey. See id. Massey sought review of the final judgment entered, and the First District affirmed. See Massey v. David, 952 So.2d 1195 (Fla. 1st DCA 2007) (Massey III) (table citation).

Thereafter, the trial judge entered a separate judgment for costs in favor of David. See Massey II, 953 So.2d at 601. Massey sought review of that second judgment and alleged, in pertinent part, that the trial court erred when it awarded costs for expert witnesses which he alleged to be contrary to section 57.071(2) of the Florida Statutes. See id. Massey contended that the trial court awarded expert fees to David based on the improper conclusion that section 57.071(2) was unconstitutional. See id. That subsection provides, in pertinent part:

Expert witness fees may not be awarded as taxable costs unless the party retaining the expert witness furnishes each opposing party with a written report signed by the expert witness which summarizes the expert witness's opinions and the factual basis of the opinions, including documentary evidence and the authorities relied upon in reaching the opinions. Such report shall be filed at least 5 days prior to the deposition of the expert or at least 20 days prior to discovery cutoff, whichever is sooner, or as otherwise determined by the court.

Id. at 601-02 (quoting § 57.071(2), Fla. Stat. (1999)). Massey asserted in the trial court that David was not entitled to an award of costs for the experts because he had not timely complied with the written report requirement delineated in the statute. At the same time, Massey conceded that the Fourth District Court of Appeal had previously declared section 57.071(2) to be unconstitutional in Estate of Cort v. Broward County Sheriff, 807 So.2d 736 (Fla. 4th DCA 2002).

On appeal, the First District initially noted that the trial court made no findings with regard to the provisions of the statute and that the order awarding costs to David did not mention either Cort or the statute. See Massey II, 953 So.2d at 602. Nonetheless, even if the trial court had relied on Cort when it awarded the expert witness costs to David, the First District concluded that the trial court did not err because Cort "stands as the only appellate decision addressing this issue." Id. The First District then stated that "from our review, the Fourth District correctly found the statute an unconstitutional intrusion on `the powers of the judiciary, through the Florida Supreme Court, to determine matters of practice and procedure before the Florida Courts,'" and agreed with the Fourth District that "section 57.071(2) does not create a right to recover expert witness fees, but rather sets forth the procedure for recovering under that right." Id. (emphasis supplied) (quoting Cort, 807 So.2d at 738).

Massey seeks review of the decision of the First District Court of Appeal in Massey II in this Court.


In 2002, the Fourth District in Cort expressly held section 57.071(2) to be unconstitutional as a procedural statute that unconstitutionally infringed on the authority of this Court to determine matters of practice and procedure for Florida courts. See 807 So.2d at 738. The analysis in Cort is much more detailed than that provided by the decision below. The Fourth District reasoned:

[S]ection 57.071(2) is unconstitutional because, through it, the legislature creates or modifies a procedural rule of court:

A rule of procedure prescribes the method or order by which a party enforces substantive rights or obtains redress for their invasion. Substantive law creates those rights. Practice and procedure are the machinery of the judicial process as opposed to the product thereof.

Military Park Fire Control Tax Dist. No. 4 v. DeMarois, 407 So.2d 1020, 1021 (Fla. 4th DCA 1981). In DeMarois, this court found section 447.504(5), Florida Statutes (1979), unconstitutional. See id. at 1021. Section 447.504(5) provided that appeals from certain orders of the Public Employees Relations Commission would be "expedited" in the appellate court and given "priority" over other civil matters. This court concluded that there was "no doubt that a rule creating priorities among types of civil matters being processed by the state courts is procedural rather than substantive." DeMarois, 407 So.2d at 1021.

More specifically, we find Allstate's reliance on Knealing v. Puleo, 675 So.2d 593 (Fla.1996), persuasive. In Knealing, the supreme court found section 44.102(6)(b), Florida Statutes (1993), which allows a party to make an offer of judgment after mediation ends, unconstitutional. See id. at 596. The court found that the statute did not expressly authorize an award of fees nor did it provide any other independent basis for awarding fees. See id. The court stated "[r]ather than providing for an award of fees, section 44.102(6) alters the time limits for making and accepting an offer of judgment." Id. Therefore, in finding the statute unconstitutional, the Knealing court was persuaded by section 44.102(6)'s failure to "create" a substantive right since section 768.79, Florida Statutes, already created the substantive right to attorney's fees based on an offer of judgment. Likewise, here, section 57.071(2) does not create a right to recover expert witness fees, but rather sets forth the procedure for recovering under that right.

Moreover, in Knealing, the supreme court noted that in Leapai v. Milton, 595 So.2d 12 (Fla.1992), and Timmons v. Combs, 608 So.2d 1 (Fla.1992),

[W]e found sections 45.061, Florida Statutes (1987), and 768.79, Florida Statutes (1989), constitutional despite their procedural aspects because they contained...

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