McFadden v. Hardrives Const., Inc., 90-955

• Citation: 16 Fla. L. Weekly 448,573 So.2d 1057
• Decision Date: 06 February 1991
• Docket Number: No. 90-955,90-955
• Parties: 16 Fla. L. Weekly 448 J.W. McFADDEN, Appellant, v. HARDRIVES CONSTRUCTION, INC., and American International and Laurence F. Leavy, P.A., Appellees.
• Court: Florida District Court of Appeals

Page 1057

573 So.2d 1057

16 Fla. L. Weekly 448

J.W. McFADDEN, Appellant, v. HARDRIVES CONSTRUCTION, INC., and American International and Laurence F. Leavy, P.A., Appellees.

No. 90-955.

District Court of Appeal of Florida,

First District.

Feb. 6, 1991.

Rehearings Denied Feb. 6, 1991.

Gary Marks, Fort Lauderdale, for appellant.

Mal Steinberg, Fort Lauderdale, and Laurence F. Leavy, North Miami Beach, for appellees.

ON MOTION FOR CLARIFICATION

[Original opinion at 15 F.L.W. D3034]

SHIVERS, Chief Judge.

We grant appellant's motion for clarification, and substitute the following for the original opinion:

The claimant in this workers' compensation case appeals an order directing him to pay Laurence Leavy's attorney's fees. We reverse the order for the reasons set out below.

The record indicates that the claimant was injured in a compensable accident occurring on October 1, 1985. As a result of his accident, he filed both a workers' compensation claim and a third party liability claim. In the workers' compensation claim, claimant was represented by attorney Mark Marks, and Marks' associate, Lawrence Leavy. The liability claim was handled solely by attorney Marks. On June 1, 1987, Leavy left the Marks firm and, on July 19, 1987, filed a notice of appearance as co-counsel with Marks in the workers' compensation claim. At some point subsequent to that date, a dispute apparently arose between Marks and Leavy. On May 4, 1988, Marks filed a notice of appearance as sole counsel in the workers' compensation claim. He then negotiated a washout settlement of the claim, and set the settlement for hearing on June 14, 1988.

Prior to the settlement hearing, Leavy filed a notice of objection to the washout, a motion to quash washout, notice of lien, and motion for attorney's fees. He alleged in the motions that the washout was negotiated by Marks without his knowledge or consent and was scheduled for hearing at a time when Leavy could not attend. He also alleged that he had spent 31.7 hours on the workers' compensation case, and was entitled to a fee of $4,755. Consequently, Leavy asked the judge of compensation claims (JCC) to: (1) determine who claimant's counsel was, and (2) quash the washout pending resolution of Leavy's motion for attorney's fees. The washout was approved by JCC Seppi on June 14, 1988, the terms of the settlement being that the claimant would waive his right to future compensation in return for a reduction of the E/C's lien in the third-party liability case from $65,000 to $5,222.89. No attorney's fee was requested or awarded under the terms of settlement. The JCC also ordered that $10,000 of the money received by claimant in the third-party action be placed into escrow pending adjudication of Leavy's motion for attorney's fees.

On February 20, 1990, JCC Lewis (who had been substituted for Seppi) conducted a hearing on Leavy's claim for attorney's fees and costs. After considering the testimony presented, the JCC entered an order granting Leavy an attorney's fee of $6,000, and finding that the claimant had hired Leavy on July 19, 1987 to serve as sole counsel in his workers' compensation case. We reverse the order in its entirety, finding the JCC to have been without authority to determine the issues raised at the February 20, 1990 hearing.

In Watson v. State, Department of Labor and Employment Security, 552 So.2d 970 (Fla. 1st DCA 1989), a workers' compensation cla...