IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

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1 IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA PAUL R. CARRITHERS, CHARLES RAY CARRITHERS, and ROY MICHAEL CARRITHERS, Individually, and PAUL R. CARRITHERS as Trustee of the BELMONT REVOCABLE LIVING TRUST u/a/d AUGUST 12, 2003, NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED CASE NO. 1D Appellants, v. CORNETT'S SPIRIT OF THE SUWANNEE, INC. Appellee. / Opinion filed August 10, An appeal from the Circuit Court for Suwannee County. William R. Slaughter, II, Judge. Stephen H. Grimes and Gigi Rollini of Holland & Knight, Tallahassee; Joel F. Foreman of Foreman, McInnis & Douglas, P.A., Lake City, for Appellants. Edwin B. Browning, Jr. of Davis, Schnitker, Reeves & Browning, Madison; Stephen C. Bullock, Lake City; Ross S. Burnaman, Tallahassee; and Paul F. Cullum, Williamsburg, VA., for Appellee. PER CURIAM. DISMISSED. Appellants timely filed this appeal seeking review of an order labeled Final

2 Judgment for Appellate Attorneys Fees and Costs. This probate order was entered pursuant to an order issued in appellate case 1D , provisionally granting appellate attorney fees. Review is properly by motion for review filed in the underlying appeal. Fla. R. App. P (c). We reject Appellants argument that review is properly by appeal pursuant to Florida Rule of Appellate Procedure 9.170(b)(23). Therefore, this court lacks appellate jurisdiction to review the order assessing appellate attorney fees and costs in this appeal, and we dismiss this appeal. See Browning v. New Hope South, 785 So. 2d 732 (Fla. 1st DCA 2001). Cf. Pellar v. Granger Asphalt Paving, Inc., 687 So. 2d 282, 284 (Fla. 1st DCA 1997). The Florida Supreme Court recently adopted Florida Rule of Appellate Procedure 9.170, Appeal Proceedings in Probate and Guardianship Cases, and removed probate and guardianship cases from Florida Rule of Appellate Procedure 9.110, effective January 1, In re Amendments to Florida Rules of Appellate Procedure, 84 So. 3d 192 (Fla. 2011). The new rule provides a non-exclusive list of 24 categories of probate and guardianship orders that are appealable because they finally determine a right or obligation of an interested person. Included in this list are orders that award attorney fees. Fla. R. App. P (b)(23). However, an order assessing fees that is entered by a probate court pursuant to an appellate court order provisionally awarding fees is not an order that awards attorney fees for 2

3 purposes of appeal under the new rule. See In re Estate of Udell, 501 So. 2d 1286, 1288 (Fla. 4th DCA 1986). The general rule with respect to appellate attorney fees, including appellate attorney fees in probate matters, is that only the appellate court is authorized to award attorney s fees to the prevailing party and against the losing party. Id. An order determining the amount of appellate attorney s fees on remand from an appellate court has the characteristics of a final order but review of such an order by a plenary appeal is not necessary or even proper. Pellar, 687 So. 2d at 284. In Browning, this court decline[d] to approve appellant s theory that the notice of appeal should be treated as a motion for review in case number 1D Browning, 785 So. 2d at 733. Like the appellant in Browning, Appellants here initiated a new appellate proceeding rather than properly moving for review, thereby foreclosing the right of review by motion in the earlier appeal. But see Pellar, 687 So. 2d at 284 ( the filing of an appeal in this case does not foreclose the right of review ). Although Browning would be controlling, it is inconsistent and conflicts with prevailing decisions of the Florida Supreme Court, because it failed to properly apply Florida Rules of Appellate Procedure 9.400(b) and 9.400(c). Kaweblum v. Thornhill Estates Homeowners Ass'n, Inc., 755 So. 2d 85, 87 (Fla. 2000) ( The use of the word shall under rule 9.040(b) demonstrates that transfer of an improperly filed cause is mandatory, not discretionary. ); Johnson v. Citizens 3

4 State Bank, 537 So. 2d 96, 98 (Fla. 1989) ( we hold that article V, section 2(a) prohibits a district court from dismissing as untimely a timely notice of appeal filed with the clerk of the circuit court, which should be considered as a petition for a writ of certiorari ). We are bound to follow the case law set forth by the Florida Supreme Court, which shall prevail until overruled by a subsequent decision of [that] Court. Hoffman v. Jones, 280 So. 2d 431, 440 (Fla. 1973). Accordingly, Appellants notice of appeal, filed in this appeal on April 18, 2012, is hereby treated as invoking the Court s review jurisdiction under rule 9.400(c) in appellate case number 1D The notice of appeal is transferred to appellate case number 1D for further proceedings on the motion for review of the trial court s order establishing the amount of appellate attorney fees to be awarded to Appellees, including any amount of attorney fees Appellee may be entitled to request for review in this court. Appellee s motion to dismiss this appeal as untimely filed and to foreclose further review under our precedent in Browning, filed May 10, 2012, is DENIED. WETHERELL and MARSTILLER, JJ., CONCUR; THOMAS, J., SPECIALLY CONCURRING WITH OPINION. 4

5 THOMAS, J., SPECIALLY CONCURRING. I concur, but if I were writing on a blank slate, I would grant Appellee s motion to dismiss this appeal under the authority of our recent decision in Browning v. New Hope South, Inc., 785 So. 2d 732 (Fla. 1st DCA 2001), and deny any further review of the underlying appellate fee order awarded to Appellee. But the court here correctly holds that our precedent in Browning cannot be reconciled with the Florida Supreme Court s holdings in Kaweblum v. Thornhill Estates Homeowner s Ass n, Inc., 755 So. 2d 85 (Fla. 2000), and Johnson v. Citizens State Bank, 537 So. 2d 96 (Fla. 1989). Article V, section 2(a), of our state constitution requires that no cause shall be dismissed because an improper remedy has been sought. Kaweblum interpreted this provision and rule 9.040(b), Florida Rules of Appellate Procedure, to confer jurisdiction on the district court where a party filed a notice of appeal in the wrong lower court, which then transferred that notice of appeal to the correct circuit court outside the 30-day jurisdictional time limit in which to invoke appellate jurisdiction. The authority and logic of Kaweblum applies here, where Appellant improperly seeks appellate review of an appellate fee award by filing a notice of appeal rather than by correctly filing a motion for review under rule 9.400(c), Florida Rules of Appellate Procedure. 1 1 Appellant s present counsel did not represent Appellant in the fee hearing below. 5

6 Here, there is a reasonable argument that this purported appeal is not a cause as provided in the state constitution, as it is nothing more than an attempt to obtain further review of an order in a case decided by this court quite some time ago. This matter is similar to a situation where a party fails to properly challenge a trial court ruling and thus waives the right to contest the ruling in an appellate court. As we noted in Browning, the notice of appeal contained no argument regarding any error... and it was therefore facially insufficient. Browning, 785 So. 2d at 733. In addition, as we noted in Browning, The wisdom of Rule 9.400(c)... is demonstrated by the fact that claimant has filed another motion for attorney s fees in the new proceeding. If permitted to go forward, this raises the possibility that litigation will never reach a conclusion. Id. at n.1 (emphasis added). Obviously, this statement is not true if we simply treat an improperly filed notice of appeal as a motion for review under 9.400(c), but the fact that this court had to spend scarce judicial resources to rectify Appellant s error here is problematic, to say the least. Furthermore, as noted above, this is not a case where Appellant mischaracterized a type of initial pleading, a lawsuit, or a defense; rather, Appellant improperly filed a notice of appeal and created a new case in this court in order to simply challenge the amount of an attorney fee award, not the entitlement. 6

7 Thus, were it not for the supreme court s holding in Kaweblum, I would grant relief to Appellee by dismissing this appeal and precluding further review of the appellate attorney fee award in this case. 7