Theodore Ryan v. City of Boynton Beach, etc., and Frank Janots ( 2015 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
THEODORE RYAN,
Appellant,
v.
CITY OF BOYNTON BEACH, a Florida municipal corporation, and
FRANK JANOTS,
Appellees.
No. 4D13-3167
[February 4, 2015]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Joseph Marx, Judge; L.T. Case No. 502003CA010606
XXXXMB.
Jeff P. Cynamon of the Law Offices of Jeff P. Cynamon, P.A., Miami
Beach, for appellant.
Michael D. Cirullo, Jr., and Kerry L. Ezrol of Goren, Cherof, Doody &
Ezrol, P.A., Fort Lauderdale, for appellee City of Boynton Beach.
STEVENSON, J.
This case has its genesis in eminent domain proceedings initiated by
the City of Boynton Beach against Theodore Ryan. Presently, appellant
Ryan alleges error in the denial of his motion seeking the award of both
the attorney’s fees incurred in connection with a prior appeal and the trial
level fees incurred in connection with litigating the parties’ competing
motions for disbursement of the funds being held in the court’s registry.
We reverse the order appealed and remand for further proceedings
consistent with this opinion.
Ryan owned two parcels of property in Boynton Beach: his home
(parcel 1) and a vacant lot (parcel 2). In 1998, the City recorded two orders
imposing fines for code violations originating on parcel 1, resulting in liens
attaching to all real and personal property owned by Ryan, which included
parcel 2. In 2003, the City initiated eminent domain proceedings with
respect to parcel 2, which resulted in the entry of an order of taking and a
final consent judgment in the amount of $99,000. The court reserved
jurisdiction to determine the rights of Ryan, lienholders, and other
claimants “in respect to the compensation for the parcel,” and the City
paid the $99,000 into the court’s registry. Ryan was awarded the
attorney’s fees he incurred in connection with defending the eminent
domain proceedings. The fee award resulted in an appeal by the City, see
City of Boynton Beach v. Janots, 929 So. 2d 1099 (Fla. 4th DCA 2006)
(“Janots I”), and Ryan was also awarded the fees he incurred in connection
with that appeal.
Some years later, in August of 2010, Ryan filed a motion seeking
disbursement of the $99,000 still held in the court’s registry. In turn, the
City filed its own motion, asserting it was entitled to withdraw the funds
to satisfy its earlier-recorded code enforcement liens. The trial court
denied the City’s motion, finding it had failed to file a “petition” or
independent action as required by chapter 162, Florida Statutes, which
governs enforcement of liens. The City appealed. This court reversed,
finding “the City did not have to file a separate action to enforce its code
enforcement liens against Parcel 2 and the trial court should have
adjudicated the City’s lien claims under the authority of section 73.101,”
and remanded for further proceedings. City of Boynton Beach v. Janots,
101 So. 3d 864, 867 (Fla. 4th DCA 2012) (“Janots II”). By order dated
October 10, 2012, this court granted Ryan’s motion for appellate fees,
directing the trial court to “consider the result obtained on appeal in
setting the amount of fees.”
Following the appeal in Janots II, Ryan filed a motion in the trial court,
asking the trial court to award him both the attorney’s fees incurred in
connection with the appeal and the trial level fees incurred in connection
with the parties’ motions for disbursement of the funds in the court’s
registry. The trial court denied Ryan’s motion in its entirety and that
ruling gave rise to the instant appeal.
Appellate Fees Incurred in Connection with Janots II
A party’s entitlement to the award of appellate fees is a matter for the
appellate court, not the trial court, although the amount of fees is generally
determined by the trial court. See, e.g., In re Estate of Udell, 501 So. 2d
1286, 1288 (Fla. 4th DCA 1986). This court’s October 10, 2012 order
granted Ryan’s motion for appellate fees and resolved the matter of Ryan’s
entitlement to the fees incurred in connection with the appeal in Janots II
in Ryan’s favor. This court’s ruling on Ryan’s entitlement to these
appellate fees became the law of the case, and the trial court was not
thereafter free to revisit the issue. See State v. McBride, 848 So. 2d 287,
289–90 (Fla. 2003) (stating law of the case doctrine “requires that
‘questions of law actually decided on appeal must govern the case in the
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same court and the trial court, through all subsequent stages of the
proceedings’”) (quoting Fla. Dep’t of Transp. v. Juliano, 801 So. 2d 101, 105
(Fla. 2001)); McPherson v. Bittner, 126 So. 3d 1230 (Fla. 4th DCA 2012)
(applying law of the case doctrine to appellate court’s granting of motion
for appellate fees); Fla. Diversified Films, Inc. v. Simon Roofing & Sheet
Metal Corp., 118 So. 3d 240 (Fla. 3d DCA 2013) (same). Thus, the trial
court could not properly deny Ryan’s motion for appellate fees by finding
Ryan was not entitled to fees because the “appeal over how to obtain such
funds . . . [was] not directly related to the condemnation proceedings.”
Alternatively, the trial court found that Ryan’s motion for appellate fees
was properly denied as the appellate court had mandated consideration of
the result obtained on appeal and a zero award was reasonable “[s]ince
Ryan did not prevail on appeal.” This rationale, though, is contrary to the
governing fee statute. The award of appellate attorney’s fees in eminent
domain proceedings is governed by section 73.131, Florida Statutes. The
statute requires that the petitioner “pay all reasonable costs of the
proceedings in the appellate court, including a reasonable attorney’s fee to
be assessed by that court, except upon an appeal taken by a defendant in
which the judgment of the lower court shall be affirmed.” § 73.131(2), Fla.
Stat. There are appellate decisions permitting consideration of the result
obtained on appeal in setting the amount of appellate fees to be awarded.
See Seminole Cnty. v. Boyle Inv. Co., 724 So. 2d 645 (Fla. 5th DCA 1999);
Lee Cnty. v. Tohari, 582 So. 2d 104, 105 n.1 (Fla. 2d DCA 1991).
Nonetheless, consistent with the language of section 73.131, the Florida
Supreme Court has squarely held that a landowner cannot be denied his
appellate attorney’s fees simply because he was not the prevailing party in
the appeal. See Denmark v. State Dep’t of Transp., 389 So. 2d 201, 201
(Fla. 1980); State Rd. Dep’t v. Levato, 199 So. 2d 714 (Fla. 1967). Thus,
while the trial court would have acted within the bounds of its discretion
and this court’s order by awarding an amount less than that sought by
Ryan, the zero award went too far, effectively converting section 73.131 to
a prevailing party fee statute.
Trial Level Fees Incurred in Connection with Motions for Disbursement
Florida Statutes section 73.092(2) governs the award of fees incurred
in the trial court, providing for the assessment of fees “incurred in
defeating an order of taking, or for apportionment, or other supplemental
proceedings, when not otherwise provided for.” Courts interpreting the
statute have limited eminent domain fee awards to those fees incurred in
resolving claims that arise as a direct result of the eminent domain
proceedings. See State, Dep’t of Transp. v. Skidmore, 720 So. 2d 1125,
1129–30 (Fla. 4th DCA 1998) (holding attorney’s fees incurred regarding
claim that portion of the land that was the subject of the taking was
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illegally-filled sovereign submerged lands should not have been included
in fee award as such issue was “merely incidental to” eminent domain
proceeding) (citing Terry v. Conway Land, Inc., 508 So. 2d 401, 406 (Fla.
5th DCA 1987), approved, 542 So. 2d 362 (Fla. 1989)); Seminole Cnty. v.
Butler, 676 So. 2d 451, 454 (Fla. 5th DCA 1996) (holding that owner’s right
to “full compensation” entitles him to only the award of “attorney’s fees for
time spent in determining disputes arising as a ‘direct result of the
condemnation proceedings’”) (quoting Terry, 508 So. 2d at 404). Relying
upon the foregoing authorities, the trial court denied Ryan’s motion for the
trial level fees incurred in connection with the motions for disbursement
of the funds in the court’s registry, finding that “[a]lthough the dispute
over the disbursement of the court registry funds arose as a result of the
condemnation proceedings, Boynton Beach had an independent claim
over the funds as a result of it possessing code enforcement liens” and,
thus, “the litigation and appeal over how to obtain such funds are not
directly related to the condemnation proceedings.”
Ryan insists the trial court was not permitted to deny his motion for
the trial level fees on the ground that the dispute over the disbursement
of the funds in the court registry was not directly related to the
condemnation proceedings as this court inherently ruled to the contrary
in the opinion issued as the result of the appeal in Janots II. We disagree.
In the prior appeal, we held that the City’s motion for disbursement of the
funds in the court’s registry could not properly be denied for the reason
that the City had filed only a motion in the chapter 73 proceedings, rather
than filing an independent action, and that the trial court’s authority
under chapter 73 was broad enough to permit it to adjudicate the City’s
claim to the proceeds in the registry. Our earlier holding was not
tantamount to a finding that all the legal issues raised while litigating the
competing motions for disbursement were so directly related to the
underlying taking as to demand an award of attorney’s fees to the
landowner.
Nevertheless, on the merits of the propriety of the trial court’s ruling
that the trial level fees incurred in connection with the motions for
disbursement were not awardable as they were “not directly related to the
condemnation proceedings,” we conclude the trial court was partly right
and partly wrong. The trial court likened the proceedings on the motions
for disbursement to those in Seminole County v. Butler, 676 So. 2d 451(Fla. 5th DCA 1996). In Butler, the owner of the property that was the
subject of the eminent domain proceedings had leased it to two others.
During the course of the eminent domain proceedings, the owner incurred
attorney’s fees pursuing rent claims against the tenants. The appellate
court agreed with the County’s claim that time spent pursuing the rent
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claims should not have been included in the fee award to the owner. The
court reasoned that “while the controversy between Butler [owner] and his
tenants may have never arisen but for the eminent domain proceeding, it
is critical to recognize that the litigation between Butler and his tenants
was entirely private” and the attorney’s “collection of rents on behalf of
Butler was not directly related to Butler's defense to the County’s eminent
domain suit.” 676 So. 2d at 455.
Terry v. Conway Land, Inc., 508 So. 2d 401 (Fla. 5th DCA 1987),
approved, 542 So. 2d 362 (Fla. 1989), is among the decisions cited in
Butler and is also instructive. Following condemnation of property owned
by Conway, the Terrys sought apportionment of the award, claiming an
interest as a consequence of a reservation of rights to royalties from any
gas, oil or minerals on the property. To resolve the issue, the trial court
was required to look at documents transferring title to the property and
determine whether the reservation applied to only a long-expired lease.
The trial court believed this was the case and entered summary judgment
in the apportionment proceedings in favor of Conway. The Terrys
appealed. The Fifth District reversed, holding the Terrys continued to hold
a royalty interest.
In that appeal, the Terrys sought to have the condemning authority pay
the attorney’s fees incurred on appeal. The Fifth District ruled they were
not entitled to these fees: “This dispute arises now because the fee title
has been taken by condemnation, but the conflicting claims do not arise
as a direct result of the condemnation proceedings. The appellants’ claim
raises a question as to appellees’ title which would have required
independent litigation for its determination even if the condemnation
proceedings had never occurred.” Id. at 406.
Returning to the case before us, we hold that Ryan was entitled to
recover those trial level fees he incurred litigating whether the City’s filing
of a motion in the eminent domain proceedings was a proper vehicle for
the City to seek to collect on its lien. The issue of whether Ryan or the
condemning authority was entitled to the funds in the court registry simply
would not exist but for the eminent domain proceedings, making the
circumstances distinguishable from those in Butler and Terry. We do not
believe, however, that this is the case for many of the other trial level fees
sought by Ryan. The attorney time sheets introduced into evidence at the
fee hearing included time billed for (1) researching and hearing preparation
on the statute of limitations issue concerning the City’s enforcement of the
code violation lien; (2) time spent researching whether Ryan would
continue to be responsible for the code enforcement lien if the property
were sold; (3) time spent analyzing the City’s Code of Ordinance; (4) phone
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calls to the City’s Code Compliance Department regarding the alleged
violations and compliance; (5) phone calls to the City’s Code Compliance
Department for “clarification” on liens; (6) phone calls with Ryan regarding
compliance with the code violations; (7) phone calls with the City’s Code
Compliance Department regarding a possible lien reduction hearing; and
(8) phone calls to Ryan regarding “remedies to alleged violations, lien
reduction hearing, witnesses.” Such legal issues concerning the
validity/enforceability of the liens existed regardless of the eminent
domain proceedings and cannot be said to have directly arisen from, or
have been directly related to, the eminent domain proceedings.
Conclusion
Having considered all issues raised, we reverse the order appealed. As
to the appellate fees incurred in connection with Janots II, we hold that
Ryan’s entitlement to the same was established by this court’s October 10,
2012 order and remand the matter to the trial court with directions for the
trial court to set the amount of fees to be awarded. In setting such amount,
the trial court must take into account the “result obtained,” remaining
mindful of the fact that section 73.131 is not a prevailing party fee statute.
As for the trial level fees incurred in connection with the motions for
disbursement, the trial court is directed to award Ryan those fees incurred
challenging the propriety of the City’s resort to chapter 73 proceedings to
enforce its code enforcement lien. As for the remaining trial level fees
sought by Ryan, the matter is remanded so that the trial court may
reconsider the issue in light of this court’s opinion.
Reversed and Remanded.
DAMOORGIAN, C.J., and GILLESPIE, KENNETH, Associate Judge, concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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