146 So. 3d 1213
Fla. Dist. Ct. App.2014Background
- Plaintiff (Kirkland) moved to compel production of documents; trial court ordered production and reserved determination of fees.
- Bartow HMA petitioned the Second District for certiorari to quash the production order; the petition was denied and no appellate fees were requested or awarded in that proceeding.
- Kirkland filed a renewed motion to compel in the trial court and sought attorney’s fees for obtaining the documents; the court ordered Kirkland to submit an affidavit of fees and set a hearing if the parties disagreed.
- At the fee hearing, Kirkland submitted a second affidavit adding $21,252 labeled as "Appellate Attorneys' Fees" for defending the certiorari petition, plus $2,509 for trial-court work; the trial court awarded the full amount.
- On appeal, Bartow HMA challenged the award, arguing the trial court lacked jurisdiction to award appellate fees and raised notice and preservation issues regarding the trial-court fee components.
- The Second District affirmed the $2,509 trial-court fee award but reversed the $21,252 appellate-fee portion for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court could award fees for work defending certiorari (appellate) | Fees were incurred in "obtaining the documents," so trial court could award them | Trial court lacked jurisdiction to award appellate fees absent appellate-court authorization | Trial court lacked jurisdiction; reversal of $21,252 award |
| Whether trial-court fees ($2,509) were improperly awarded without notice | Fees hearing covered amount; Kirkland had right to recover trial-court fees | Bartow HMA claimed lack of notice and that sanction procedure wasn’t followed | Court found Bartow HMA had notice and opportunity; affirmed $2,509 award |
| Whether trial-court should have limited award to original affidavit amount | Kirkland’s later-added fee entries were improper | Bartow HMA urged reduction to initial $2,034 (or $2,059) affidavit | Argument unpreserved; court declined to reduce award on that ground |
| Whether appellate-fee exception for probate applied | Kirkland argued probate exception allowed trial-court award | Bartow HMA contended exception inapplicable outside probate | Court rejected the probate exception as inapplicable |
Key Cases Cited
- Rados v. Rados, 791 So. 2d 1130 (trial court cannot award appellate attorney's fees absent appellate authorization)
- Respiratory Care Servs., Inc. v. Murray D. Shear, P.A., 715 So. 2d 1054 (appellate courts have exclusive jurisdiction to award appellate fees)
- Closuit v. Crane Envtl., Inc., 850 So. 2d 652 (trial court cannot award fees for services in appellate court; such fees must be sought in appellate court)
- Wood v. Steen, 830 So. 2d 965 (same principle: appellate fees require appellate-court authorization)
- DiStefano Constr., Inc. v. Fidelity & Deposit Co. of Md., 597 So. 2d 248 (attorney's fee awards reviewed for abuse of discretion)
- In re Estate of Udell, 501 So. 2d 1286 (probate-fee allocation exception discussed)
- Bissmeyer v. Southeast Bank, N.A., 596 So. 2d 678 (distinguishing probate appellate-fee practice)
- Braddy v. State, 111 So. 3d 810 (preservation rule: issues must be presented to trial court to be preserved on appeal)