109 So. 3d 1274
Fla. Dist. Ct. App.2013Background
- Elms, paraplegic from a September 2011 work accident, has received permanent total disability and other workers’ compensation benefits with no pending disputes.
- The Workers’ Compensation Law is described as a self-executing system intended to promptly provide benefits.
- Elms, through attorney Appel, sought JCC approval in May 2012 of a $100 upfront retainer for ongoing advice with no employee-paid fees on benefits obtained.
- The JCC denied approval, interpreting §440.34(1), Fla. Stat. (2011) as prohibiting such an agreement where no benefits had been secured.
- Elms filed a petition for certiorari arguing misinterpretation of the statute or unconstitutionality on Equal Protection/First Amendment grounds; the court dismissed the petition for lack of irreparable harm.
- Elms has continued to be represented by Appel in other aspects of the case, including a separate $11,000+ EC-paid attorney’s fee settlement for home-modification issues; the court considered this evidence that Elms was not left without counsel.
- The decision distinguishes Walker v. River City Logistics, Inc., noting that Elms was not denied his counsel of choice, only the particular retainer terms; thus certiorari relief is not warranted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether certiorari relief lies for denial of a retainer agreement. | Elms argues JCC misinterpreted §440.34(1) or it is unconstitutional. | JCC rules the retainer is impermissible where benefits were not obtained; irreparable harm not shown. | No certiorari jurisdiction; petition dismissed for lack of irreparable harm. |
| Whether irreparable harm requirement for certiorari is satisfied. | Elms asserts loss of access to counsel without retainer terms. | Record shows competent counsel available; not irreparably harmed. | Irreparable harm not shown; jurisdiction bars review. |
| Whether Elms was denied counsel of choice, warranting certiorari relief. | Order denied retainer terms, allegedly denying counsel of choice. | Elms was not denied counsel of choice, only terms; he remains represented by Appel. | Not a suitable certiorari scenario; relief denied on jurisdictional grounds. |
Key Cases Cited
- AVCO Corp. v. Neff, 30 So.3d 597 (Fla. 1st DCA 2010) (certiorari review for non-final orders under narrow circumstances)
- Keck v. Eminisor, 104 So.3d 359 (Fla. 2012) (certiorari standards and irreparable harm prerequisites)
- Williams v. Oken, 62 So.3d 1129 (Fla. 2011) (certiorari relief limited to miscarriage of justice; not mere legal error)
- Board of Trustees of the Internal Improvement Trust Fund v. American Educational Enterprises, LLC, 99 So.3d 450 (Fla. 2012) (certiorari relief is extremely rare; very few cases)
- Martin-Johnson, Inc. v. Savage, 509 So.2d 1097 (Fla. 1987) (certiorari limits and sensitive use in review)
- Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812 (Fla. 2004) (irreparable harm as prerequisite to certiorari)
- Davis v. Keeto, Inc., 463 So.2d 368 (Fla. 1st DCA 1985) (illustrates irreparable harm concept in context of access to counsel)
- Walker v. River City Logistics, Inc., 14 So.3d 1122 (Fla. 1st DCA 2009) (distinguishes denial of counsel of choice from mere retainer terms)
- Jaye v. Royal Saxon, Inc., 720 So.2d 214 (Fla. 1998) (irreparable harm requirement precedent citations)