John O'Connor v. Indian River County Fire Rescue

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
JOHN O’CONNOR, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D15-4986
INDIAN RIVER COUNTY
FIRE RESCUE/JOHNS
EASTERN COMPANY, INC.,
Appellees.
_____________________________/
Opinion filed August 2, 2016.
An appeal from an order of the Judge of Compensation Claims.
Robert L. Dietz, Judge.
Date of Accident: January 10, 2015.
Michael J. Winer of the Law Office of Michael J. Winer, P.A., Tampa, and Geoffrey
Bichler of Bichler, Kelley, Oliver, Longo & Fox, PLLC, Maitland, for Appellant.
William H. Rogner of Hurley, Rogner, Miller, Cox, & Waranch, P.A., Winter Park,
for Appellees.
ON MOTION FOR REHEARING AND REHEARING EN BANC
PER CURIAM.
We grant Appellant’s motion for rehearing, withdraw our prior opinion of
May 20, 2016, and substitute this opinion in its place. Appellant’s motion for
rehearing en banc is denied.
In this workers’ compensation appeal, Appellant appeals an order of the judge
of compensation claims (JCC) awarding costs to Appellees as the prevailing party
pursuant to section 440.34(3), Florida Statutes (hereafter “the costs order”). We
affirm the costs order because Appellant did not present any substantive argument
for its reversal. We also admonish Appellant’s counsel for their lack of candor
concerning the order at issue in this appeal.
Factual Background
Appellant requested that the JCC approve an attorney’s fee retainer agreement
whereby Appellant’s union agreed to pay Appellant’s attorney’s fees to prosecute
his workers’ compensation exposure claim regardless of whether the attorneys were
successful in obtaining any benefits. The JCC entered an order (hereafter “the fee
order”) denying the request, and Appellant’s attorneys subsequently withdrew from
representing Appellant. Appellant then dismissed his pending petition for benefits
(PFB) and filed a petition for writ of certiorari in this court (Case No. 1D15-3562)
challenging the fee order.
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After Appellant dismissed his PFB, Appellees sought prevailing-party costs,
which the JCC granted. While the petition for writ of certiorari was pending,
Appellant appealed the costs order to this court. Instead of arguing for reversal of
the costs order, however, Appellant’s briefs included arguments only for reversal of
the fee order. 1 Thereafter, we issued an order directing Appellant to show cause
why sanctions should not be imposed because Appellant failed to inform the court
that he had two pending proceedings in this court seeking review of the same
interlocutory order.
Discussion
The fee order was interlocutory and, thus, not subject to review on appeal
because it was not entered in the costs proceeding; rather, it was entered in the
proceeding that culminated in Appellant voluntarily dismissing his PFBs.
Appellant relies on Jacobson v. S.E. Pers. Leasing, Inc., 113 So. 3d 1042 (Fla.
1st DCA 2013), for the position that the appeal of the costs order called up for review
the interlocutory fee order entered prior to his dismissal of his PFB. Jacobson does
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The only argument Appellant directed to the costs order was in the conclusion to
the reply brief in which Appellant asserted that the judgment was the “fruit” of a
previous order addressing the retainer agreements discussed below. This assertion,
however, did not address in any way the merits of the costs order. And, in any event,
an argument cannot be raised for the first time in a reply brief. See Plichta v. Plichta,
899 So. 2d 1283, 1287 (Fla. 2d DCA 2006) (“[I]ssues raised on appeal for the first
time in a reply brief are not properly before th[e] court and will not be considered.”).
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not support Appellant’s position, however, because that case involved a critically
different factual and procedural situation than exists here.
In Jacobson, the claimant lost his claim for benefits on the merits and the
employer/carrier sought a costs judgment against him. The claimant then sought the
JCC’s approval of a retainer agreement that would allow him to pay with his own
funds his attorney’s fees for representing him in the costs proceeding. See 113 So.
3d at 1046-47. The JCC denied the request, claimant proceeded on his own, and
appealed the subsequent costs judgment. Thus, appellate review of the interlocutory
retainer order was proper in that case pursuant to Florida Rule of Appellate
Procedure 9.110(h) because the costs judgment called up for review all interlocutory
orders entered in the costs proceeding.
This case also differs from the situation in Miles v. City of Edgewater, 190
So. 3d 171 (Fla. 1st DCA 2016). There, after the JCC entered orders denying
approval of fee retainer agreements similar to the ones in this case, the claimant’s
counsel withdrew and the claimant proceeded to a merits hearing pro se, and the
JCC ultimately entered a final order denying the claimant’s claim on the merits. The
claimant subsequently appealed the final order and, in that appeal, she argued that
the orders denying approval of the retainer agreement deprived her of various
constitutional rights. See 190 So. 3d at 175-77. Thus, as in Jacobson, but unlike
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here, the interlocutory retainer orders in Miles were entered in the proceeding that
culminated in the final order that gave rise to the appeal.
Here, Appellant voluntarily dismissed his PFB, so there was no final order to
appeal or which subsumed any interlocutory orders leading up to it. And it was this
dismissal that entitled Appellees to prevailing-party costs, and the proceedings
leading to the costs judgment were ancillary. See Guckenberger v. Seminole Cty.,
979 So. 2d 407, 408-09 (Fla. 1st DCA 2008) (“‘Costs are statutory allowances
recoverable by the successful party as an incident to the main adjudication. They are
neither part of the damages claimed nor a penalty and need not be specially pleaded
or claimed.’” (quoting Golub v. Golub, 336 So. 2d 693, 694 (Fla. 2d DCA 1976)).
Thus, review of the fee order was limited to a petition for writ of certiorari, which
Appellant did in fact file, but which was denied while this appeal was still pending.
The improper use of this appeal as a second chance to obtain review of the fee
order is troublesome, but it was not only Appellant’s attorneys’ mistaken, albeit
apparently good faith, belief that the fee order was reviewable in this appeal of the
costs order that led this court to order counsel to show cause why sanctions should
not be imposed. Rather, more concerning was counsel’s failure to adequately
apprise the court that Appellant had two pending proceedings in this court both
challenging the same order despite having multiple opportunities to do so.
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Specifically, trial counsel twice amended the notice of appeal, but in each
version indicated only that Appellant was appealing the final order assessing costs.
Nothing in the notices indicated that the real reason for this appeal was to challenge
the earlier-entered fee order. Then, appellate counsel amended an earlier docketing
statement to refer to the petition for certiorari filed on Appellant’s behalf and
to Miles, which was then also pending before this court (and in which Appellant’s
counsel here was also counsel of record). In this filing, counsel simply stated that
the cases “involve the exact same issues” and nothing more. Appellate counsel later
moved to consolidate this case with Appellant’s petition for certiorari and Miles,
again asserting a commonality of issues. In no place did appellate counsel indicate
that Appellant was not actually challenging the costs order on appeal. Review of the
petition at that juncture would have revealed only that there was a pending challenge
to the fee order which, from all appearances, was unrelated to the costs order that
was purportedly the subject of the appeal in this case. If this appeal was in fact
challenging the same order being reviewed via the petition, trial or appellate counsel
should have sought consolidation at the onset of the appeal and explained why
consolidation would have been appropriate.
This court did not become aware of the true focus of this appeal until the initial
brief was filed. The brief ignored the costs order altogether and instead challenged
only the fee order, setting forth the same general arguments that Appellant’s counsel
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had made in Miles. Thus, Appellant’s appellate counsel attempted to use this costs
order appeal to obtain a second presentation of his argument concerning the fee order
and, at every opportunity Appellant’s counsel had prior to filing the initial brief, they
failed to make it clear to this court that the appeal solely involved the fee order.
In response to the show cause order, appellate counsel indicated that nothing
in the rules required counsel to indicate in the notice of appeal that Appellant was
actually appealing the fee order, not the costs order. Rather, counsel believed that
the notice of appeal included an earlier interlocutory order, and that the order at issue
did not need to be described because no “benefits” as such were at issue. See Fla. R.
App. P. 9.180(b)(4) (requiring the notice of appeal to include a “brief summary of
the type of benefits affected”). However, in the response to the show cause order
and again in the motion for rehearing, counsel recognized that although the rule may
not require listing any interlocutory order being challenged, under the facts here, the
better practice would have been to make it clear in the notice of appeal that the order
being challenged was the fee order and to move to consolidate at the outset with the
request making it clear that the only order actually being challenged was the fee
order which, in turn, involved the same issues as those raised in the petition and
in Miles. We accept counsel’s contrition.
In our original opinion in this case, we sanctioned Appellant’s counsel for
their lack of candor by requiring them to pay the fees incurred by Appellees in this
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appeal. Upon reconsideration, however, we determine that the admonishment in this
opinion is a sufficient sanction.
Conclusion
Based on the foregoing, the costs order is AFFIRMED.
WETHERELL, ROWE, and OSTERHAUS, JJ., CONCUR.
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