505 So. 2d 533 | Fla. Dist. Ct. App. | 1987
The employer/carrier (e/e) appeals, an order of the deputy commissioner (dc) awarding attorney’s fees. Finding that the award was contingent in nature and that the contingency upon which the award was
The e/c was held responsible for attorney’s fees in the instant case pursuant to Section 440.34(3)(c), Florida Statutes, after the claimant had prevailed on the issue of compensability for benefits due, as a result of his establishing that he had contracted the occupational disease of asbestosis. The dc awarded claimant’s attorney a fee of $32,500, and reserved jurisdiction to award additional attorney’s fees, if, first, the appellate court in another case then pending on appeal should find that claimant is entitled to a higher average weekly wage (AWW), which would then have the effect of increasing the benefits secured to the claimant through the intervention of his attorney, and, second, if and when the claimant’s future medical expenses are “reduced to a certainty.” The e/c appealed both the reservations of jurisdiction and the amount of the attorney’s fee awarded.
The dc erred in reserving jurisdiction to enter an additional award of attorney’s fees contingent upon the outcome of the appeal on the issue of AWW.
In so saying, we observe that at the time the deputy entered his order setting the attorney fee award, which was based in part on an AWW amount later reversed, the earlier order fixing the AWW was merely voidable. The rule is that an order or judgment that is only voidable will constitute a bar to later litigation for res judi-cata purposes, unless the order or judgment is reversed, in which event no bar may be claimed under it. See General Portland Land Development Co. v. Stevens, 356 So.2d 840, 842 (Fla. 4th DCA 1978); 32 Fla.Jur.2d Judgments and Decrees § 146 (1981); Annotation, 9 ALR2d 984 (1950). Indeed, despite the fact that a former judgment may have been presumptively correct when it later is relied upon, once it is reversed, “the better practice ... [is] to reverse the judgment in the second case, even though it was correct when rendered.” 9 ALR 2d at 1014-1015.
The dc in the same order also reserved jurisdiction to award additional attorney’s fees for future medical benefits. Although claimant offered expert testimony as to the likelihood of his needing future medical treatment, no estimate was offered regarding what the reasonably predictable costs of future medical treatment would be during claimant’s anticipated lifetime. Instead, the dc reserved jurisdiction to determine the extent of the claimant’s future
Because of our vacation of the order on review, we do not reach the issue challenging the excessiveness of the amount of the fee awarded.
The order is vacated and the case remanded for further proceedings.
. The dc’s order states that both parties stipulated to his reservation of jurisdiction to award an additional attorney’s fee if the appellate court should find the claimant was entitled to a higher AWW. Since a stipulation cannot vest a dc with jurisdiction that he does not possess, we find that the stipulation in the instant case was without effect.