Pyszka, Kessler, Massey, Weldon, Catri, Holton & Douberley, P.A. v. Mullin
| Decision Date | 14 July 1992 |
| Docket Number | No. 91-1758,91-1758 |
| Citation | 602 So.2d 956 |
| Parties | PYSZKA, KESSLER, MASSEY, WELDON, CATRI, HOLTON & DOUBERLEY, P.A., Petitioner, v. Claudia MULLIN, Respondent. 602 So.2d 956, 17 Fla. L. Week. D1703 |
| Court | Florida District Court of Appeals |
Elser, Greene & Hodor and Cynthia L. Greene, Miami, for petitioner.
Susan R. Cohen, Nancy Schleifer, Miami, for respondent.
Before BASKIN, JORGENSON and LEVY, JJ.
ON HUSBAND'S MOTION FOR REHEARING ON ATTORNEY'S FEES
We deny John Mullin's motion for rehearing of this court's order awarding attorney's fees to his wife, Claudia Mullin. The facts of this case are set forth in Pyszka, Kessler, Massey, Weldon, Catri, Holton and Douberley, R.A. v. Mullin, 602 So.2d at 955, where this court granted certiorari review of an order denying John Mullin's law firm's motion for a protective order in the Mullins' dissolution of marriage action; 1 we ruled in favor of the firm. Claudia Mullin had filed a response to the petition for certiorari in compliance with this court's order. Fla.R.App.P. 9.100(f). Subsequently, she filed a motion for attorney's fees in this court. We granted her motion and remanded the cause to the trial court. Chertoff v. Chertoff, 553 So.2d 179 (Fla. 3d DCA 1989); Henning v. Henning, 507 So.2d 164 (Fla. 3d DCA 1987). John Mullin asks us to reconsider our ruling.
First, he contends that he was not a party to the certiorari proceeding and should not be compelled to pay the fee. We disagree. Although the petitioner law firm did not name the husband as a respondent in the petition caption, that omission does not conclude the matter. The caption is not dispositive of the husband's status in the certiorari proceeding: substantive law determines whether the husband may be named as a proper party respondent. See Buchanan v. City of Winter Park, 226 So.2d 860, 863 (Fla. 4th DCA 1969). "The writ of certiorari, by removing to a reviewing court, the record of a subordinate tribunal whose order is sought to be quashed, brings before the reviewing court all of the parties who appeared and were heard as parties to the proceeding in which the challenged order was made." In re Grubb, 116 Fla. 387, 389, 156 So. 482, 483 (1934); State Beverage Dept. v. Willis, 159 Fla. 698, 700, 32 So.2d 580, 582 (1947); see Brigham v. Dade County, 305 So.2d 756 (Fla.1974); De Groot v. Sheffield, 95 So.2d 912, 915-916 (Fla.1957); Orlando Trans. Co. v. Florida R.R. & Pub. Util. Comm'n, 160 Fla. 795, 809, 37 So.2d 321, 329 (1948); Atlantic Coast Line R. Co. v. Florida Fine Fruit Co., 93 Fla. 161, 166, 112 So. 66, 68 (1927); cf. Battaglia Fruit Co. v. City of Maitland, 530 So.2d 940 (Fla. 5th DCA) (), cause dismissed, 537 So.2d 568 (Fla.1988). Because the husband is a party to the dissolution action that engendered the order on review, he is within the jurisdiction of this court. 2 See In re Grubb, 116 Fla. at 389-390, 156 So. at 484.
As to the award of attorney's fees, the husband asserts that section 61.16, Florida Statutes (1991), is inapplicable to this proceeding. We disagree. Section 61.16 endeavors to prevent a party's inferior financial status from limiting the quality of that party's legal representation in a dissolution action. Standard Guar. Ins. Co. v. Quanstrom, 555 So.2d 828, 835 (Fla.1990); Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). "The purpose of section 61.16 ... is to ensure that both parties ... have similar access to counsel and can thus fight the action on a nearly equal footing." Robbie v. Robbie, 591 So.2d 1006, 1009 (Fla. 4th DCA 1992). Those policy reasons are pertinent to this proceeding. Because the certiorari petition was filed to obtain review of an order entered in the dissolution action, see De Groot, 95 So.2d at 916 (), certiorari review does not constitute a non-chapter 61 proceeding. The wife is entitled to attorney fees in such review proceedings. Kurtz v. Kurtz, 538 So.2d 892 (Fla. 4th DCA 1989); see Sierra v. Sierra, 505 So.2d 432 (Fla.1987). Consequently, the denial of a fee award on that basis is without merit. Compare Battista v. Battista, 585 So.2d 459 (Fla. 1st DCA 1991); Berger v. Berger, 573 So.2d 952 (Fla. 4th DCA 1991) with Kass v. Kass, 560 So.2d 293 (Fla. 4th DCA 1990).
Contrary to the husband's assertions, the wife's failure to prevail in the certiorari proceeding does not preclude a fee award. The prevailing party standard does not govern in determining whether the court may award an attorney fee to a party in a dissolution action. Rosen v. Rosen, 576 So.2d 308 (Fla. 3d DCA 1990); Chertoff, 553 So.2d at 180; Travieso v. Travieso, 447 So.2d 940 (Fla. 3d DCA 1984), quashed in part on other grounds, 474 So.2d 1184 (Fla.1985); Mulford v. Sullivan, 560 So.2d 1364, 1366 (Fla. 1st DCA 1990); see Sierra, 505 So.2d at 432; Finkelstein v. North Broward Hosp. Dist., 484 So.2d 1241, 1243 (Fla.1986). Instead, "[o]ur case law implementing [section 61.16] requires a judge to consider the needs of the party seeking a fee and the financial resources of the parties to assure that both parties received adequate representation." Quanstrom, 555 So.2d at 835; Canakaris v. Canakaris, 382 So.2d at 1197.
Finally, the husband's argument that the fee award should be denied as a consequence of the wife's litigiousness is without merit. The record fails to demonstrate that the wife engaged in baseless litigation and incurred unnecessary expense in seeking discovery to determine her husband's interest in the law firm or in complying with this court's order to file a response to the petition. See Eisner v. Markovich, 585 So.2d 312 (Fla. 3d DCA 1991); Elenewski v. Elenewski, 528 So.2d 1354 (Fla. 3d DCA 1988); Meloan v. Coverdale, 525 So.2d 935 (Fla. 3d DCA 1988); Sutter v. Sutter, 578 So.2d 788 (Fla. 4th DCA 1991) and cited cases.
Accordingly, we deny the husband's motion for rehearing.
This court's order, filed February 7, 1992, which granted the respondent's motion for an award of attorney fees in connection with these proceedings, should be vacated.
Clearly, under the facts of this case, and consistent with the case law of this state, the husband is not liable for any appellate fees incurred by the respondent in connection with these certiorari proceedings. The reasoning supporting this conclusion is correctly set forth by the husband's counsel in the "Husband's Motion for Rehearing" wherein it states, in pertinent part, as follows:
In August of 1991, the respondent, Claudia Mullin, filed a petition for dissolution of her marriage to John C. Mullin, Jr. Approximately four months prior to the filing of the dissolution proceeding, the husband became a non-equity "partner" in the law firm of Pyszka, Kessler, Massey, Weldon, Catri, Holton & Douberley, P.A., which was the petitioner in the appeal which gave rise to the order which forms the subject matter of this motion.
The appeal arose because the respondent caused a subpoena to be issued to the law firm, which employs the husband. The subpoena in question purported to seek documents the respondent maintained were necessary to determine the husband's "partnership" status with the petitioner and to verify his income, despite the fact that the husband had produced all income-related documents in his possession, that the husband had testified as to his income and non-equity status, that the law firm filed affidavits setting forth the terms of the agreement between the law firm and the husband with regard to his remuneration and non-equity status, that the law firm had produced payroll ledgers regarding the husband, that the law firm affirmatively demonstrated that the husband owned no shares in the law firm and that there was no written 'partnership agreement' between the law firm and the husband. The law firm also offered to make available for inspection year-to-end financial statements regarding the firm. However, the respondent declined to accept that offer. The law firm then appealed the trial court's denial of the law firm's motion for protective order regarding the documents which it maintained did not directly pertain to the husband or were otherwise privileged and private and the law firm field a writ of certiorari. The husband did not join in the appeal or petition for writ of certiorari.
The petition for certiorari herein was granted and the petitioner prevailed with respect to its claim that its rights were violated by the trial court's order. This court ruled that the respondent was only entitled to those documents which the petitioner had offered for inspection or copying prior to its filing of the writ of certiorari.
The husband in the dissolution of marriage proceedings below, John C. Mullin, Jr., was not a party to the certiorari proceedings. Simply stated, the husband had absolutely nothing to do with the proceedings in this court and had done everything in his power to demonstrate that he was not an equity or owner partner in the law firm and to demonstrate, by way of production of his paycheck stubs, bank account records and tax returns, including W-2 forms, his income during all pertinent time periods.
Despite the foregoing facts, the respondent filed a "motion for attorneys' fees" against the husband, and this court granted the respondent's motion and has remanded this matter to the trial court for the assessment of award of attorneys' fees against the husband for the services of the wife's attorney rendered in this court.
The husband submits that this court's award of attorneys' fees against him with respect to a matter in which he was not a party and in which he was not involved in any way and in which he did not participate in any way, other than observing oral arguments, is contrary to law and...
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