TRAVELERS COMMERCIAL INSURANCE COMPANY, AN AFFILIATE OF TRAVELERS INSURANCE CO., AND TRAVELERS CASUALTY AND SURETY COMPANY v. CRYSTAL MARIE HARRINGTON
CASE NOS. 1D15-1121/1D15-3480
IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA
Opinion filed February 26, 2016.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
James P. Waczewski, of Luks, Santaniello, Petrillo & Jones, Tallahassee, for Appellants.
Stephen C. Bullock, of Brannon Brown Haley & Bullock, P.A., Lake City, for Appellee.
SWANSON, J.
We have for review two consolidated appeals both arising from two orders, each denying appellants’ motions to vacate judgments awarding “prevailing party”
In 2012 this Court affirmed in part and reversed in part a final summary judgment favorable to appellee involving the stacking of uninsured motorist benefits and the amount of benefits recoverable by her, while certifying two questions to the Florida Supreme Court regarding those issues. See Travelers Commercial Ins. Co. v. Harrington, 86 So. 3d 1274, 1278 (Fla. 1st DCA 2012) (Travelers I). In addition, we granted appellee‘s motion for “prevailing party” attorneys’ fees pursuant to
On August 24, 2012, while review was pending in the supreme court, the trial court entered a final judgment against Travelers for appellate attorneys’ fees and costs in the amount of $147,805.00. Travelers did not seek review of the fee judgment in this Court by way of
After issuing an opinion on the merits, the district court granted Respondent‘s [appellee‘s] motion for appellate attorney‘s fees and remanded to the trial court to set the amount. The trial court then issued an order granting Respondent appellate attorney‘s fees, and Petitioner did not file a motion for review of that order pursuant to
Florida Rule of Appellate Procedure 9.400(c) . The enforcement of the order has been stayed.Petitioner is hereby directed to serve a supplemental initial brief addressing whether an award of appellate attorney‘s fees is final because a motion for review of that award order was not timely filed, or whether the award must be quashed if the appeal on the merits is successful because the award is a derivative claim.
On October 23, 2014, the Florida Supreme Court issued its opinion in Travelers Commercial Insurance Co. v. Harrington, 154 So. 3d 1106 (Fla. 2014) (Travelers II), answering the certified questions and consequently quashing Travelers I. It did not, however, address the question which had been the subject of the supplemental briefs. Instead, per appellee‘s motion, the supreme court ruled:
Upon consideration of Respondent‘s [appellee‘s] Motion to Vacate in Part this Court‘s Stay Order of February 8, 2013, and response thereto, it is ordered that said motion is granted. We hereby lift the portion of the stay relating to enforcement of the underlying appellate fees judgment entered by the First District Court of Appeal. See
Fla. R. App. P. 9.400(c) (providing that review of appellate attorneys’ fees orders “shall be by motion filed in the Court within 30 days of rendition“).However, Respondent‘s motion for attorneys’ fees filed in this Court ... [is] hereby denied.
On January 15, 2015, prior to the issuance of the supreme court‘s mandate in Travelers II, but because of the supreme court‘s decision to lift the stay, appellants filed their “Emergency Motion to Vacate Appellate-Fee Judgments Pursuant to
1. This court‘s order dated May 10, 2012, granting Appellee‘s motion for appellate attorney‘s fees is vacated, and Appellee‘s motion for appellate attorney‘s fees, filed October 17, 2011, is denied. See Citizens Property Ins. Co. v. Uebershaer, 981 So. 2d 1265 (Fla. 1st DCA 2008).
2. The request to set aside the judgments resulting from this court‘s prior order granting Appellee‘s motion for appellate attorney‘s
fees is denied without prejudice to Appellant seeking such relief in the trial court. This court expresses no view as to how the trial court should rule on the request for such relief.
Also on April 2, 2015, we entered an Order on Mandate, setting aside our opinion in Travelers I and ordering that the opinion of the supreme court filed on October 23, 2014, “replace this Court‘s opinion and accompany the mandate of this Court to the Circuit Court for Columbia County.” Our mandate issued that same day.
Thereafter, in appellate court case number 1D15-1121 (appellants’ first appeal from the trial court‘s fees judgments), appellants moved this Court to relinquish jurisdiction for thirty days so they could pursue a second motion to vacate the attorneys’ fees judgments based on the above-quoted order entered on remand in Travelers I. They pointed out that the trial court‘s order on appeal in appellate court case number 1D15-1121 was premised on the fact that it could not disturb our initial decision to award prevailing party appellate attorneys’ fees, as Travelers failed to seek review of the fee order via
Appellants’ motion to relinquish jurisdiction filed April 10, 2015, is granted, and jurisdiction is hereby relinquished to the lower tribunal through and until June 12, 2015, for the purpose of considering appellants’ second motion to vacate appellate fee judgments. At the end of the relinquishment period, jurisdiction shall automatically revest with this court. On or before June 19, 2015, appellants shall file a status report advising of the need for further proceedings herein.
- In the first appeal, this Court denied Travelers’ motion to vacate those judgments without prejudice to seek such relief from the trial court, and whatever the trial court was to decide, this Court would be in a position to review the trial court‘s ruling.
- The “federal cases provided by Travelers do provide guidance [but] with the lack of local precedent this court is reluctant to provide the relief requested by Travelers.”
- “The Florida Supreme Court refused to vacate the Final Judgment ... and certainly [it] could have provided the guidance to use [
Rule 1.540 ],” but did not. - The Second Motion to Vacate should be denied because Travelers did not file a motion for review of the appellate fees judgments under Rule 9.400; because there is no precedent regarding a trial court‘s vacating an appellate court‘s order granting appellate fees where no appellate review was sought; and because the “First DCA will review this order and determine how Florida will apply
Fla. R. Civ. P. 1.540 to this case.” - The case law construing
Rule 9.400 “confirms that an award of costs after a successful appeal may not be conditioned upon the ultimate outcome of the case. ... The rationale for an award of reasonable attorneys’ fees underRule 9.400 should be treated the same as the costs.”
As required by this Court‘s order relinquishing jurisdiction, a status report was filed in appellate court case number 1D15-1121, and jurisdiction was returned to this Court as noted in a July 17, 2015, order. Appellants then filed a separate,
On motion and upon such terms as are just, the court may relieve a party ... from a final judgment, decree, order, or proceeding for the following reasons: ... (5) that ... a prior judgment or decree upon which it is based has been reversed or otherwise vacated ....
A trial court‘s ruling on a motion to vacate under rule 1.540 is reviewed for an abuse of discretion. Buckman v. Beighley, 128 So. 3d 133 (Fla. 1st DCA 2013); Rosso v. Golden Surf Towers Condo. Ass’n, 711 So. 2d 1298, 1300 (Fla. 4th DCA 1998). The “general principles governing [a] motion to vacate under
In the present consolidated appeals, the trial court denied both of appellants’ motions to vacate the two attorneys’ fees judgments. Regarding the first motion, the trial court reasoned:
[O]nly the First DCA can change the course of its appellate fee award. Travelers never sought to have the First DCA do so and the First DCA term ended. Travelers should have preserved its appellate rights by seeking a stay of the MANDATE or sought review pursuant to
Fla. App. R. 9.400 but elected not to do so.
Furthermore, the trial court observed that Travelers had filed a supplemental brief before the Florida Supreme Court raising all of the arguments it was then raising before the trial court, yet the supreme court “denied Travelers’ request for relief from the First DCA Appellate Attorney‘s fee award and instead entered its Order dated October 23, 2014 lifting its stay to allow Harrington to pursue collection of the judgment award.”
The question of whether the trial court was legally correct in the conclusions it reached in this first order—presently the subject of the appeal in appellate court case number 1D15-1121—is largely academic in light of the subsequent April 2, 2015, order rendered in Travelers I, in which this Court vacated its earlier order
The trial court, however, once more refused to vacate the appellate fees judgments, agreeing with appellee that appellants are not entitled to relief because Travelers never appealed the appellate fees judgment in Travelers I. We conclude the trial court erred in so ruling, since the issue is not one of preservation of error but of appellants’ right to have a derivative fee award vacated when the underlying merits judgment is reversed. See Ueberschaer, 981 So. 2d at 1266 (holding that this Court‘s reversal of its previous opinion due to the Florida Supreme Court‘s mandate quashing that opinion, “necessarily require[d] [this Court] to vacate [its] previous order partially granting Appellee‘s motion for appellate attorney‘s fees“).
As its first justification for denying appellants’ second motion to vacate, the trial court referred to appellants’ acknowledgment that they had made a “tactical” decision not to appeal the original fee award, and admonished them that
The principal difficulty we have with the defendants’ position is their failure to file a motion for rehearing or to take an appeal. Defendants learned of the entry of judgment on June 24, the same day it was entered. Defendants had ten days to move for rehearing, see
Fla. R. Civ. P. 1.530(b) , and thirty days within which to file a notice of appeal. The gist of the defendants’ position is that the trial court abused its discretion in allowing defense counsel to withdraw without allowing at least a brief continuance to obtain substitute counsel. That argument could have been raised by motion for rehearing or upon appeal from the final judgment.
Id. at 956-57. The situation in Sacco is in no way comparable to the circumstances in the present case, where Travelers had nothing to appeal because the original prevailing party attorneys’ fees judgment was predicated on this Court‘s affirmance of the trial court‘s merits judgment. Nonetheless, it did employ measures to protect itself from the immediate enforcement of that judgment through motions for stay of execution. Yet, the trial court here, quoting from Miller v. Fortune Insurance Co., 484 So. 2d 1221, 1223 (Fla. 1986), held “it has never been the role of the trial courts of this state to relieve attorneys of their tactical mistakes ... and nothing in
The rationale expressed in Miller actually supports appellants’ cause. At the earliest, not until the supreme court quashed this Court‘s decision in Travelers II could appellants have even considered seeking relief from this Court‘s appellate fee award by way of
In their argument, appellants directed the trial court‘s attention to several federal cases interpreting the very similar
“In our view, the arguments in favor of requiring appellate leave are unpersuasive. Like the original district court judgment, the appellate
mandate relates to the record and issues then before the court, and does not purport to deal with possible later events. Hence, the district judge is not flouting the mandate by acting on the motion. ... Furthermore, the interest in finality is no more impaired in this situation than in any Rule 60(b) proceeding. Finally, we have confidence in the ability of the district courts to recognize frivolousRule 60(b) motions. Indeed, the trial court ‘is in a much better position to pass upon the issues presented in a motion pursuant toRule 60(b) [.]‘”
Id. (quoting Standard Oil, 429 U.S. at 18-19) (internal citations omitted). Our supreme court went on to add:
Were we not persuaded by the policy considerations favoring abolition of the appellate-leave requirement, a careful reading of the rule itself would militate toward that position. While
Fla. R. Civ. P. 1.540(a) specifically requires leave of the appellate court as a prerequisite to correction of clerical mistakes arising after commencement of the appeal, subparagraph (b) of the rule contains no such condition. The absence of the appellate-leave requirement from subparagraph (b) where the same requirement was clearly stated in subparagraph (a) suggests that no such requisition was intended to attach to the former subparagraph.
Id. In this respect, California Medical Ass’n v. Shalala, 207 F.3d 575 (9th Cir. 2000), is on point. In that case, the Ninth Circuit Court of Appeals held there is no need to appeal a fee judgment if the only issue with the judgment is that it should be set aside if the merits appeal in the same case results in a change of the prevailing party status. Under those circumstances, a
The trial court also emphasized the Florida Supreme Court‘s refusal in Travelers II to vacate the final judgment on attorneys’ fees, its failure to address
Finally, the trial court justified its ruling on the basis that Travelers never sought review of the initial appellate fee judgment in this Court pursuant to
The plaintiffs first contend that the trial court erred in denying their motion to tax costs incurred in the first trial. The court, in denying the plaintiff‘s motion, explained that the cost judgment entered in favor of the defendants stood as the law of the case because the plaintiffs failed to appeal that cost judgment. We disagree. In the first appeal, we reversed and ordered a new trial on the issue of damages. Where a judgment is reversed on appeal, it is not proper to allow a cost judgment pending the outcome of the matter on remand. The trial court therefore erred in affirming the cost judgment entered in favor
of the defendants in the first trial because the judgment upon which it was predicated was reversed on appeal.
(Emphasis added). See also S. Nat‘l Track Servs., Inc. v. DJ Gilley, 152 So. 3d 13 (Fla. 1st DCA 2014); River Bridge Corp. v. Am. Somax Ventures, 76 So. 3d 986 (Fla. 4th DCA 2011). Rather, the right to obtain relief from the prevailing party fees judgment on the basis that the merits judgment was wrongly decided is preserved by appealing the merits judgment. See Flowers v. S. Reg‘l Physician Servs., Inc., 286 F.3d 798, 800-02 (5th Cir. 2002); Shalala, 207 F.3d at 578; Maul v. Constan, 23 F.3d 143, 147 (7th Cir. 1994). We consider the foregoing federal rulings to provide persuasive authority for reversing the trial court‘s order in the present case. The cases relied on by the trial court as analogous authority, primarily, Centennial Mortgage, Inc. v. SG/SC, Ltd., 864 So. 2d 1258 (Fla. 1st DCA 2004), involved an award of costs and did not address the issue here, where a party first prevails on appeal and is awarded prevailing party attorneys’ fees, but later loses that right by fiat from a higher court.
In sum, concerning appellate court case number 1D15-3480, we conclude that once this Court vacated its award of prevailing party attorneys’ fees to appellee upon remand from the supreme court‘s decision in Travelers II, there was no legal basis for the trial court to deny appellants’ second motion to vacate, since appellee was no longer the prevailing party and no longer entitled to prevailing party attorneys’ fees under
The trial court‘s orders denying appellants’ motions to vacate the attorneys’ fees judgments are REVERSED, and the cause is REMANDED with directions for the trial court to vacate the judgments awarding appellee her appellate attorneys’ fees.
RAY, J., CONCURS. ROWE, J., CONCURS IN RESULT.
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