O'Connor v. Indian River Cnty. Fire Rescue/Johns E. Co.

197 So.3d 156

John O'CONNOR, Appellant,

v.INDIAN RIVER COUNTY FIRE RESCUE/Johns Eastern Company, Inc., Appellees.

No. 1D15–4986.

District Court of Appeal of Florida, First District.

Aug. 2, 2016.

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.

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 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 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.

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...