The week started with a major seminar on the topic of Attorney’s Fees sponsored by the Appellate Practice and Business Law Committees of the Orange County Bar Association. Former Orange County Circuit Court Judge Jim Hauser, a recognized expert on the subject, was the main speaker. The seminar was well-attended and covered developments in Florida law since 2009. Suffice it to say there have been many, and the case law interpreting a party’s right to recover attorney’s fees have not always been predictable.
The same day as the seminar, the First District Court of Appeal decided Waddington v. Baptist Medical Center of the Beaches, Inc., Case No. (Fla. 1st DCA Jan. 30, 2012). There, and on its on own initiative, the court assessed attorney’s fees against the attorney’s who filed the appeal “for filing a frivolous appeal counsel knew or should have known would not be supported by existing law, as proscribed by section 57.105(1)(b), Florida Statutes (2010).” Quoting an earlier decision by the Third District Court of Appeal, the First District said, “a ‘frivolous’ appeal is one which raises arguments a reasonable lawyer would either know are not well grounded in fact, or would know are not warranted either by existing law or by a reasonable argument for the extension, modification, or reversal of existing law.”
The client of the lawyer sanctioned was not also sanctioned, but the Waddington opinion suggests that was only because of the provision under which the sanctions were awarded. In some circumstances, both client and lawyer may be sanctioned, which poses the very real threat of the lawyer being hit a second time with a malpractice claim.
Then, today, in Southeast Floating Docks, Inc. v. Auto-Owners Insurance Company, No. SC11-285 (Fla. Feb. 2, 2012), a 6-1 majority of the Florida Supreme Court held section 768.79, Florida Statutes – the offer of judgment / demand for judgment / proposal for settlement statute – is substantive for both constitutional and conflict of law purposes. Accordingly, the court held the parties’ contractual agreement to be bound by the substantive law of Michigan precluded an award of attorney’s fees under a Florida statute. To reach that outcome, the majority disapproved decisions by the Fourth and Fifth District Courts of Appeal in BDO Seidman, LLP v. British Car Auctions, Inc., 802 So. 2d 366, 368 (Fla. 4th DCA 2001) and Bennett v. Morales, 845 So. 2d 1002 (Fla. 5th DCA 2003).
Justice Perry was the court’s lone dissenter – and lone defender of the Fourth and Fifth District opinions. He said, “I cannot ignore the plain language of the statute. Based on this unambiguous language, it could not be more clear that the Legislature intends for this statute to apply to every civil action filed in the courts of this state. In light of the plain language of the statute, along with this Court’s precedent that the court’s discretion to deny attorney’s fees under this statute is limited, I do not see how the Legislature could mean anything but that this statute applies to all cases filed in Florida.”
The take away from this week is simply this: Don’t assume anything when it comes to awards of attorney’s fees in Florida.