Topalli v. Feliciano

• Decision Date: 22 March 2019
• Docket Number: Case No. 2D18-617
• Citation: 267 So.3d 513
• Parties: Ediol TOPALLI and Irida Topalli, Appellants, v. Eddie FELICIANO and Bay Colony Community Association, Inc., Appellees.
• Court: Florida District Court of Appeals

267 So.3d 513

Ediol TOPALLI and Irida Topalli, Appellants,

v.Eddie FELICIANO and Bay Colony Community Association, Inc., Appellees.

Case No. 2D18-617

District Court of Appeal of Florida, Second District.

Opinion filed March 22, 2019

James M. Moran of Marc L. Shapiro, P.A., Naples, for Appellants.

Michael R. D'Lugo of Wicker Smith O'Hara McCoy & Ford, P.A., Orlando, for Appellees.

LUCAS, Judge.

Eriol and Irida Topalli, the plaintiffs below, appeal the entry of a final judgment assessing attorney's fees against them.¹ The fee judgment arose from their "agreement" (a term we use loosely) to pay some measure of the costs incurred by the defendants below, Eddie Feliciano and Bay Colony Community Association, Inc., in connection with a requested continuance of the jury trial by the Topallis. The Topallis make several arguments in this appeal. Unfortunately, we are precluded from considering most of the issues they have raised because of the very sparse appellate record the Topallis have chosen to present. However, there is error on the face of the judgment that requires reversal for the reasons we will explain below.

I.

From what we can glean from the record, Mr. Topalli was allegedly injured while riding a bicycle when he collided with Mr. Feliciano, who was driving a motor vehicle that belonged to Bay Colony Community Association, Inc. The Topallis filed a complaint against both defendants on January 22, 2016. The defendants, who were represented by the same counsel, filed an answer and affirmative defenses, and the case proceeded in due course. It appears that the matter was originally set for trial in October of 2016, then reset to January 10, 2017; however, based on the representations of the Topallis' lawyer that the trial would likely take between eight to ten days, the circuit court entered an order resetting the case again for the week of April 4, 2017.

According to the circuit court's docket entries, the parties appeared to be well on their way to trying the case in April. A not inconsiderable amount of discovery and depositions were taken and transcribed, various related discovery motions were filed and set for hearing, witness and exhibit lists were exchanged, and the parties filed motions in limine. Then, on March 25, 2017, a Saturday, the Topallis' attorney filed a handwritten motion to withdraw as counsel.

We do not have the motion in our record. However, from a transcript of a hearing convened on March 27, 2017, the Topallis' attorney represented that he and his client had irreconcilable differences that made him "extremely concerned" with his responsibility in the matter. In response to the circuit court's question whether the rules of professional conduct necessitated counsel's withdrawal but without divulging further details, the attorney replied, "yes, sir, that's correct."

This apparently came as a surprise to Mr. Topalli. When he appeared at the hearing, Mr. Topalli (who speaks English as a second language) testified:

I don't know what's happened for — because I remember well what's — but I know and I was telling to him, to my lawyer, I want to go before the judge about the case. If the judge find with the right wisdom, lawyer has always I was angry with him or whatever, always. As I want to go there, as I wanted to go there before the judge. I would say let the judge decide what's the call (phonetic). Because I don't know who (sic) I did. Did I did anything wrong?

For her part, Ms. Topalli explained to the circuit court that her husband had a brain injury

, "and that's the reason that he takes it — he's very nervous when he argue with his lawyers, but I don't think that we have any big issue that his lawyers want to withdraw from the case."

Whatever may have transpired between attorney and client, the circuit court granted the motion to withdraw. In so ruling, the court recognized a dilemma the withdrawal created: with only a week remaining until its commencement, the upcoming jury trial would either have to be continued (which would impose a burden upon the defendants who had been preparing for the trial all along), or the Topallis would have to represent themselves (which would, to put it mildly, impose a rather daunting burden upon the Topallis). In a case where, the court noted, the plaintiffs had included on their witness list seven emergency room doctors, seven radiologists, two neurologists, three EMT's, two orthopedists, and two neurosurgeons, the defendants would incur undue prejudice if the trial were delayed, and so the court ruled that the jury trial would remain set for the following week. As the circuit court explained to the Topallis, the Topallis had three options: first, they could attempt to try the case without a lawyer; second, they could hire a lawyer to try the case with a week of preparation; or third, they could voluntarily dismiss their complaint without prejudice and refile their lawsuit since they were still well within the statute of limitations period.

In the next few days, the Topallis were able to retain new counsel. On March 30, the Topallis' new attorney filed a motion to continue the trial. The motion was originally denied by a written order in which the court stated that the Topallis "have elected to proceed to trial pro se."² On the morning of April 4, before the venire panel had been brought into the courtroom, the Topallis' counsel renewed their motion for a continuance and explained: "This is a case that involves multiple expert witnesses, a reconstruction expert, an economist, vocational rehabilitationist and multiple doctors[.] [I]t's a case that involves a closed-head injury and a surgery to the neck[.] [I]t is just a physical impossibility for me to have prepared to do this trial." The Topallis' lawyer further argued that the defendants would incur only a minimal cost if the case were simply rolled over to the next available trial docket, while the Topallis would experience a tremendous hardship if they had to dismiss their complaint and "start all over again" because they were already living on borrowed funds. Then, counsel brought up an idea, almost innocuously, that would become the feature of this appeal: "So I would ask the Court to respectfully grant a short continuance. My client has said at the previous pretrial conference that they would agree to be responsible for any costs associated with the delay that the Defendant incurred."

Defense counsel strenuously opposed a continuance because, as he pointed out, his clients and their witnesses were ready and fully prepared to try the case at that time. However, defense counsel allowed, if the court were inclined to grant the Topallis' motion, the court should award the defendants their attorney's fees and costs that were incurred as a result of the continuance. As counsel pointed out: "There are expenses. The [d]efense, like I said, has moved mountains to get this case ready for trial." In response, the Topallis' attorney again represented that his client would not object to paying the costs associated with the defense having to "re-prepare" for the case. The Topallis' lawyer emphasized it would not be appropriate "to charge [the Topallis] for costs all the way back to the beginning, but I think it would be appropriate for the costs associated with the delay."

Following the attorneys' cues, the circuit court granted the Topallis' motion, but elected to make the relief contingent upon the Topallis' payment of the defendants' attorney's fees and costs. The court found that the defendants would be entitled to recover their costs, but reserved deciding the amount of costs until it could convene an evidentiary hearing. Similarly, the court reserved on making a decision as to the defendants' entitlement and amount of attorney's fees, but seemed to indicate that some amount of attorney's fees would be appropriate.

The circuit court stayed the litigation in order to convene two evidentiary hearings on the defendants' request to recover fees and costs. At the conclusion of these hearings, the circuit court entered not an order, but a judgment, the final judgment now on appeal. In its Final Judgment Taxing Attorney's Fees Against Plaintiffs, the court determined that the defendants were entitled to recover attorney's fees of 164.3 hours at a billing rate of $500 per hour, 50.8 hours at $350 per hour, and 3.5 hours at $250 per hour, and paralegal's fees of 34.4 hours at $150 per hour for a total of $105,965. The court also tacked on the fee of a fee expert who apparently testified at the hearing for an additional $3000. After it had added prejudgment interest, the final total of the judgment—which had ostensibly been entered to effectuate a short continuance of a jury trial—was $110,817.32.

We do not have a transcript of what transpired at these evidentiary hearings. However, two aspects of the judgment on appeal are readily apparent: first of all, it is an executable money judgment (that conspicuously omits a preface stating what precipitated the judgment's entry); and second, the amount of fees awarded in the judgment is extraordinarily large given the context in which the judgment was entered. There is no explanation, no finding, and no legal citation within the judgment that might explain what prompted the circuit court to impose a money judgment against the plaintiffs for the continuance they had requested. Nor is it explained within the judgment why the defendants' attorneys, whose billing invoices (which were filed and included within our record) generally reflected a billing rate of $180 an hour, had become entitled to $500 and $350 per hour for purposes of the fee judgment.

The circuit court has continued to stay the proceedings, and the Topallis filed the appeal now before us.

In their appeal, the Topallis variously argue that the circuit court should never have granted their prior lawyer's motion to withdraw, or that, having allowed the withdrawal, the court should have granted the Topallis' repeated motions for a...