Travelers Commercial Ins. Co. v. Harrington

• Decision Date: 26 February 2016
• Docket Number: 1D15–3480.,Nos. 1D15–1121,s. 1D15–1121
• Citation: 187 So.3d 879
• Parties: TRAVELERS COMMERCIAL INSURANCE COMPANY, An Affiliate of Travelers Insurance Co., and Travelers Casualty and Surety Company, Appellants, v. Crystal Marie HARRINGTON, Appellee.
• Court: Florida District Court of Appeals

187 So.3d 879

TRAVELERS COMMERCIAL INSURANCE COMPANY, An Affiliate of Travelers Insurance Co., and Travelers Casualty and Surety Company, Appellants,

v.Crystal Marie HARRINGTON, Appellee.

Nos. 1D15–1121

1D15–3480.

District Court of Appeal of Florida, First District.

Feb. 26, 2016.

Rehearing Denied April 11, 2016.

James P. Waczewski, of Luks, Santaniello, Petrillo & Jones, Tallahassee, for Appellants.

Stephen C. Bullock, of Brannon Brown Haley & Bullock, P.A., Lake City, for Appellee.

SWANSON, J.

We have for review two consolidated appeals both arising from two orders, each denying appellants' motions to vacate judgments awarding "prevailing party" appellate attorneys' fees to appellee, Crystal Harrington.For the following reasons, we reverse.

In 2012this Court affirmed in part and reversed in part a final summary judgment favorable to appellee involving the stacking of uninsured motorist benefits and the amount of benefits recoverable by her, while certifying two questions to the Florida Supreme Court regarding those issues.SeeTravelers Commercial Ins. Co. v. Harrington,86 So.3d 1274, 1278(Fla. 1st DCA2012)(Travelers I ).In addition, we granted appellee's motion for "prevailing party" attorneys' fees pursuant to section 627.428, Florida Statutes, and remanded the case to the trial court to determine the amount.Our mandate issued on May 10, 2012.Travelers Commercial Insurance Company("Travelers" or "appellant") did not move to stay the mandate but, instead, petitioned the Florida Supreme Court to review our decision.

On August 24, 2012, while review was pending in the supreme court, the trial court entered a final judgment against Travelers for appellate attorneys' fees and costs in the amount of $147,805.00.Travelers did not seek review of the fee judgment in this Court by way of Florida Rule of Appellate Procedure 9.400(c), but did file a "Motion to Stay Enforcement of Judgment," pending review of Travelers I by the supreme court.The trial court granted a temporary stay, giving Travelers time to post a bond to effectuate an automatic stay under Florida Rule of Appellate Procedure 9.130(b).Travelers complied with the bond requirement, which was issued by Travelers Casualty and Surety Company of America ("the Surety" or "appellant").A few months later, appellee filed an emergency motion seeking to terminate the stay and collect on the bond.The trial court granted the motion, directing the immediate release of the bond in the court's registry to appellee's attorneys, and imposed a second judgment requiring the Surety to pay fees and costs by then totaling $150,613.30.In the meantime, the Florida Supreme Court granted Travelers' "Emergency Motion to Stay Further Proceedings, to Stay Enforcement of Appellate Fees Orders, and to Recall Mandate," thereby staying all proceedings before the trial court and this Court pending disposition of Travelers' petition for review.After Travelers filed its initial brief, however, the supreme court entered an order requesting supplemental briefs from the parties addressing the following question:

After issuing an opinion on the merits, the district court granted Respondent's [appellee's]motion for appellate attorney's fees and remanded to the trial court to set the amount.The trial court then issued an order granting Respondent appellate attorney's fees, and Petitioner did not file a motion for review of that order pursuant to Florida Rule of Appellate Procedure 9.400(c).The enforcement of the order has been stayed.

Petitioner is hereby directed to serve a supplemental initial brief addressing whether an award of appellate attorney's fees is final because a motion for review of that award order was not timely filed, or whether the award must be quashed if the appeal on the merits is successful because the award is a derivative claim.

Travelers filed its supplemental brief in which it asserted that were it to prevail before the supreme court, it could afterward obtain relief from the fee judgment in the trial court by motion filed pursuant to Florida Rule of Civil Procedure 1.540(b)(5).Appellee filed a motion asking the supreme court to lift the stay and allow enforcement of the judgment, urging that by vacating the stay to allow execution of the "non-appealed Final Judgment Awarding Reasonable Appellate Attorney's Fees, [Travelers'] rights under Fla. R. Civ. P. 1.540(b)(5), if any, are preserved. "(Emphasis added.)

On October 23, 2014, the Florida Supreme Court issued its opinion in Travelers Commercial Insurance Co. v. Harrington,154 So.3d 1106(Fla.2014)(Travelers II ), answering the certified questions and consequently quashing Travelers I.It did not, however, address the question which had been the subject of the supplemental briefs.Instead, per appellee's motion, the supreme court ruled:

Upon consideration of Respondent's [appellee's]Motion to Vacate in Part this Court's Stay Order of February 8, 2013, and response thereto, it is ordered that said motion is granted.We hereby lift the portion of the stay relating to enforcement of the underlying appellate fees judgment entered by the First District Court of Appeal.SeeFla. R.App. P. 9.400(c)(providing that review of appellate attorneys' fees orders "shall be by motion filed in the Court within 30 days of rendition").

However, Respondent's motion for attorneys' fees filed in this Court ... [is] hereby denied.

(Emphasis added.)The supreme court's Mandate to this Court—commanding "that further proceedings be had in accordance with said opinion"—issued on February 2, 2015.

On January 15, 2015, prior to the issuance of the supreme court's mandate in Travelers II, but because of the supreme court's decision to lift the stay, appellants filed their "Emergency Motion to Vacate Appellate–Fee Judgments Pursuant to Rule 1.540(b)(5)," seeking to vacate the original and second appellate fees judgments based on the supreme court's quashal of Travelers I on which the award of the fees was premised.On February 11, 2015, the trial court entered an order denying appellants' emergency motion.Appellants appealed the order to this court in the first of these consolidated appeals, appellate courtcase number 1D15–1121.In addition, on remand of Travelers I, Travelers also filed an emergency motion to vacatethis Court's original order awarding appellee the prevailing party appellate attorneys' fees, as well as the resulting fees judgments.On April 2, 2015, in Travelers I,this Court entered an order on Travelers' emergency motion to vacate, stating:

1.This court's order dated May 10, 2012, granting Appellee's motion for appellate attorney's fees is vacated, and Appellee's motion for appellate attorney's fees, filed October 17, 2011, is denied.SeeCitizens Property Ins. Corp. v. Ueberschaer,981 So.2d 1265(Fla. 1st DCA2008).

2.The request to set aside the judgments resulting from this court's prior order granting Appellee's motion for appellate attorney's fees is denied without prejudice to Appellant seeking such relief in the trial court.This court expresses no view as to how the trial court should rule on the request for such relief.

Also on April 2, 2015, we entered an Order on Mandate, setting aside our opinion in Travelers I and ordering that the opinion of the supreme court filed on October 23, 2014, "replace this Court's opinion and accompany the mandate of this Court to the Circuit Court for Columbia County."Our mandate issued that same day.

Thereafter, in appellate courtcase number 1D15–1121(appellants' first appeal from the trial court's fees judgments), appellants moved this Court to relinquish jurisdiction for thirty days so they could pursue a second motion to vacate the attorneys' fees judgments based on the above-quoted order entered on remand in Travelers I.They pointed out that the trial court's order on appeal in appellate courtcase number 1D15–1121 was premised on the fact that it could not disturb our initial decision to award prevailing party appellate attorneys' fees, as Travelers failed to seek review of the fee order via Florida Rule of Appellate Procedure 9.400(c).On May 12, 2015, this Court issued the following order:

Appellants' motion to relinquish jurisdiction filed April 10, 2015, is granted, and jurisdiction is hereby relinquished to the lower tribunal through and until June 12, 2015, for the purpose of considering appellants' second motion to vacate appellate fee judgments.At the end of the relinquishment period, jurisdiction shall automatically revest with this court.On or before June 19, 2015, appellants shall file a status report advising of the need for further proceedings herein.

Appellants filed a second motion to vacate in the trial court.On July 13, 2015, the trial court entered its "Order Denying Defendants' Second Motion to Vacate Appellate Fee Judgments."The trial court gave the following reasons to explain its ruling:

a) In the first appeal, this Court denied Travelers' motion to vacate those judgments without prejudice to seek such relief from the trial court, and whatever the trial court was to decide, this Court would be in a position to review the trial court's ruling.

b) The "federal cases provided by Travelers do provide guidance ... [but] with the lack of local precedent this court is reluctant to provide the relief requested by Travelers."

c) "The Florida Supreme Court refused to vacate the Final Judgment ... and certainly [it] could have provided the guidance to use [Rule 1.540 ]," but did not.

d) The Second Motion to Vacate should be denied because Travelers did not file a motion for review of the appellate fees judgments under Rule 9.400; because there is no precedent regarding a trial court's vacating an appellate court's order granting appellate fees where no appellate review was sought; and because the "First DCA will review this order and determine how Florida will apply Fla. R. Civ. P. 1.540 to this case."

e) The case law construing Rule 9.400"confirms that an

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