IN THE SUPREME COURT OF FLORIDA RUBY L. SCHMIGEL, vs. Petitioner, CASE NO. SC06-85 CUMBIE CONCRETE COMPANY, Respondent. / ON REVIEW FROM THE FIRST DISTRICT COURT OF APPEAL PETITIONER=S BRIEF ON JURISDICTION Marie A. Mattox MARIE A. MATTOX, P.A. 310 East Bradford Road Tallahassee, FL 32303 (850) 383-4800 ATTORNEYS FOR PETITIONER
TABLE OF CONTENTS Page TABLE OF CONTENTS... ii TABLE OF CITATIONS...iii STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF ARGUMENT... 3 JURISDICTIONAL STATEMENT... 6 ARGUMENT I. CONFLICTS WITH HOLDINGS OF THIS COURT...6 A. THE DECEMBER 14, 2005 OPINION...6 B. THE DECEMBER 14, 2005 AWARD OF ATTORNEYS= FEES...8 II. CONFLICTS WITH OTHER DISTRICT COURTS... 9 A. THE DECEMBER 14, 2005 OPINION...9 B. THE DECEMBER 14, 2005 AWARD OF ATTORNEYS= FEES...9 CONCLUSION... 10 CERTIFICATE OF SERVICE... 11 APPENDIX ii
TABLE OF CITATIONS Page Cases: Allegheny Casualty Company v. Roche, 885 So. 2d 1016 (Fla. 5 th DCA 2004)...9 Boca Burger, Inc. v. Forum, 912 So. 2d 561(Fla. 2005)... 5, 8 Connelly v. Old Bridge Village Co-Op, Inc., 915 So. 2d 652 (Fla. 2d DCA 2005)... 10 Moakley v. Smallwood, 826 So. 2d 221 (Fla. 2002)...4, 6, 7, 8, 9 Muckenfuss v. Deltona Corp., 508 So. 2d 340 (Fla. 1987)... 5, 8 Orange County Building Codes v. Strickland Construction Services, 913 So. 2d 718 (Fla. 5 th DCA 2005)... 10 Schmigel v. Cumbie Concrete Company, 915 So.2d 776 (Fla. 1 st DCA 2005)... 1 Stockman v. Downs, 573 So. 2d 835 (Fla. 1991)...4, 6, 7 Sunset Park Church of God, Inc., So. 2d, 2005 WL 3076595 (Fla. 5 th DCA 2005)... 9 T/F Systems, Inc. v. Malt, 814 So. 2d 511 (Fla. 4 th DCA 2002)... 9 Tobin v. Bursch, So. 2d, 2005 WL 714050 (Fla. 3d DCA 2005)... 9 Constitutional, Statutory and Rule references: Fla.R.App.P. 9.030(a)(2)(A)(iv)... 6 Article V, '3(b)(3), Fla. Const.... 6 iii
42 U.S.C. '2000e et seq.... 1 '448.101 et seq., Florida Statutes... 1 '448.104, Florida Statutes...1, 3, 5 '57.105, Florida Statutes...1, 2, 3 '57.105(1), Florida Statutes... 3, 4, 5, 6, 7, 10 '57.105(4), Florida Statutes... 5 iv
STATEMENT OF THE CASE AND FACTS Petitioner seeks review of the December 14, 2005 Opinion of the First District Court of Appeal, Schmigel v. Cumbie Concrete Company, 915 So.2d 776 (Fla. 1 st DCA 2005), and the award of attorneys= fees entered on December 14, 2005 in favor of the Appellee/Respondent on appeal. Petitioner sued Respondent in the Circuit Court of the Second Judicial Circuit, Leon County alleging pregnancy discrimination under 42 U.S.C. '2000e et seq. and retaliation after blowing the whistle against Respondent under the Private Whistle Blower=s Act, '448.101, et seq., Florida Statutes. The Honorable Paul M. Hawkes 1 presided over the trial, which took place March 29, 2004-April 1, 2004. The jury returned a verdict for Respondent. Final Judgment was entered thereafter on April 6, 2004. Jurisdiction was reserved to award costs or fees upon timely motion. Respondent, after trial, filed a Motion for Attorney=s Fees under '448.104, Florida Statutes and '57.105, Florida Statutes. On May 24, 2004, a hearing was held on Respondent=s Motion and the Court thereafter entered an Order that (1) awarded 1 The Honorable L. Ralph Smith, Circuit Judge, was assigned to this case. The Honorable Paul M. Hawkes became the trial judge at jury selection on March 26, 2004 because Judge Smith was presiding over another pending case. 1
attorneys= fees against Petitioner under '448.104 and (2) deferred ruling on attorneys= fees under '57.105 pending a briefing schedule outlined in the Order. Before any ruling on fees under '57.105, however, Petitioner moved to strike the request because it was first made after trial. Respondent had not - and could never - comply with the 21-day Asafe harbor@ provision imposed by the Florida Legislature. Petitioner had raised an absolute procedural bar to Respondent=s claim for '57.105 fees. The twist triggering Petitioner=s appeal is that the trial judge, in his Order Awarding Attorneys= Fees, included an oblique comment that the award was also based Ain part@ on Respondent=s Motion. That was plainly not the case; at no time had the trial judge previously indicated he was operating in any way independent of Respondent. Petitioner, duly on guard only as to Respondent, and having raised a fatal procedural bar to Respondent=s claim, had no reason to believe she remained at risk of an award. Had the trial judge provided notice of that, Petitioner would have proceeded with a defense appropriate to the trial court=s position. `That was not the case. The trial judge provided no notice, and the initial disclosure of his independent action came in the Order itself, on 2
August16, 2004. 2 On January 3, 2005, a hearing was held on the amount of the attorneys= fees, not on entitlement. On February 2, 2005, the lower court entered a Final Judgment Against Plaintiff. In the Final Judgment, the trial judge stated that on May 24, 2004, an entitlement hearing was held on both attorneys= fees under '57.105(1) and '448.104. Yet no entitlement hearing on '57.105 attorneys= fees has ever been held. A timely appeal was filed on March 3, 2005 with the First District Court of Appeal. 2 In the August 16, 2004 Order Awarding Attorneys= Fees, the trial judge phrased the order thusly: AThis cause having come to be heard, in part, on Defendant, Cumbie Concrete Company Inc.=s, Motion for Attorney=s Fees and Costs pursuant to section 57.105 (1), and the time having expired on the parties= opportunity to provide written argument and request an evidentiary hearing,....@ (Emphasis supplied). Yet the only noticed threat of fees came from Respondent. Petitioner had no reason to believe any additional adversary required attention. 3
On December 14, 2005, the First District Court of Appeal affirmed the trial court=s award of attorneys= fees on its own initiative pursuant to '57.105(1)(a). 3 The opinion suggests the court agreed with Petitioner that Respondent=s claim for '57.105 fees was defective, but that the trial judge=s independent actions would stand. On the same day as its opinion, the First District Court of Appeal awarded appellate fees to Respondent but did not identify any basis for the award. 4 Petitioner challenges both of these rulings. SUMMARY OF ARGUMENT 3 Petitioner is challenging the fee award only under '57.105 and is not contesting the fees awarded under '448.104, Florida Statutes. 4 Respondent requested an award of attorneys= fees on appeal under both '448.104, Florida Statutes and '57.105, Florida Statutes. 4
The Opinion 5 of the First District Court of Appeal affirming the award of attorneys= fees pursuant to '57.105(1)(a), Florida Statutes, expressly and directly conflicts with decisions of this Court because it upholds an award of fees by the trial judge in the complete absence of notice by the judge to Petitioner. (Because Petitioner had raised a fatal defect as to Respondent=s efforts to secure an award, the trial judge=s posture was materially different from Respondent=s, and Petitioner did not believe - and should not have to speculate - that the trial judge was an additional, albeit silent, opponent, in the complete absence of notice.) Thus the opinion appealed here expressly and directly conflicts with this Court=s holdings in Moakley v. Smallwood, 826 So. 2d 221 (Fla. 2002) and Stockman v. Downs, 573 So. 2d 835 (Fla. 1991) with respect to notice. No notice or opportunity to be heard, including the opportunity to present witnesses and other evidence, was provided by the trial judge prior to his assessment of attorneys= fees as required by Moakley and Stockman. This Opinion also conflicts with this Court=s holding in Moakley which requires that when an award of attorneys= fees is made under the inherent authority of the trial court to impose attorneys= fees, the award must be based on a finding of bad faith conduct supported by detailed factual findings, describing the specific acts that caused the 5 Petitioner has referred to the Opinion rendered by the First District Court of Appeal on December 14, 2005 affirming the trial court=s award of attorneys= fees as AOpinion.@ Petitioner has referenced the award of attorneys= fees made in favor of Respondent on December 14, 2005 as AAward@. 5
unnecessary incurrence of attorneys= fees. Moakley also requires a high degree of specificity in the factual findings. There was no finding of bad faith by the trial judge in his award, affirmed by the First District on December 14, 2005. The First District=s own award of appellate fees [Appendix 2] conflicts with Moakley for the same reasons. In fact, there are no findings whatsoever, nor could there be any findings, in the Award by the First District to support an award of attorneys= fees against Petitioner under '57.105(1) or based on the inherent power of the court while this case was on appeal. 6 The Award [Appendix 2] also conflicts with Muckenfuss v. Deltona Corp., 508 So. 2d 340 (Fla. 1987). On appeal, the First District evidently agreed with Petitioner that Respondent=s efforts under '57.105 were fatally flawed because it did not comply with the 21-day notice requirement under '57.105(4). The sole basis for upholding the fee award, then, was premised on the trial judge=s late entry as an opponent. That said, at least part of the appeal was decided in favor of Petitioner. An award of appellate fees 6 The order awarding attorneys= fees is silent as to the basis for the award. See Appendix 2. However, the Respondent sought attorneys= fees under both '57.105 and '448.104, Florida Statutes. Petitioner is challenging that award under '57.105 as that award is also against Schmigel=s counsel. The award of 57.105 fees on appeal may have been an oversight. 6
against Respondent was not proper. Moreover, '57.105 requires reversal of a fee award if the grounds for the award have not been met. There are no findings by the First District as to improper conduct of counsel on appeal as required by Boca Burger, Inc. v. Forum, 912 So. 2d 561(Fla. 2005)(A[B]ecause the district court=s opinion addressed almost exclusively counsel=s conduct in the trial court, we cannot determine to what extent, if any, the court intended to impose sanctions for conduct that occurred in the appellate court.@) The Award of attorneys= fees entered on December 14, 2005 by the First District Court of Appeal also expressly and directly conflicts with several opinions from other District Courts of Appeal in that there were no findings made under '57.105 that an award of attorneys= fees was proper nor did the First District enunciate a basis for an award under '57.105(1). JURISDICTIONAL STATEMENT Discretionary jurisdiction lies in this case to review decisions of the district court that expressly and directly conflict with the rulings of other district courts and expressly and directly conflict with the rulings of this Court on the same issue of law. Fla.R.App.P. 9.030(a)(2)(A)(iv); also Article V, '3(b)(3), Fla. Const. ARGUMENT I- CONFLICTS WITH HOLDINGS OF THIS COURT A. THE DECEMBER 14, 2005 OPINION The First District Court of Appeal=s Opinion on December 14, 2005, affirming the 7
award of attorneys= fees pursuant to '57.105(1)(a), Florida Statutes, expressly and directly conflicts with this Court=s holdings in Moakley v. Smallwood, 826 So. 2d 221 (Fla. 2002) and Stockman v. Downs, 573 So. 2d 835 (Fla. 1991) with respect to notice. The trial judge provided no notice, as required by Moakley 7 and Stockman 8. The holding of the court below rests on its finding that Respondent=s motion gave Petitioner general notice that fees could be awarded. But Respondent=s motion was incurably defective. As to the only threat for which Petitioner had been given notice, the threat had been addressed. Under these circumstances, the trial judge could not fairly remain off the radar screen until the award. Due process requires more. Moakley, 826 So. 2d at 227. Additionally, under Moakley when an award of attorneys= fees is made under the inherent authority of the trial court, the award must be pinned to a finding of bad faith conduct, supported by detailed factual findings describing specific acts. It must also be predicated on a high degree of specificity in the factual findings. There was no finding of bad faith by the trial judge in the award of attorneys= fees on August 16, 2004. Instead, 7 AThe inherent authority of the trial court, like the power of contempt, carries with it the obligation of restrained use and due process.@ Moakley, 826 So. 2d at 226-27. 8 In Stockman v. Downs, 573 So. 2d 835, 837 (Fla. 1991), this court held that the Afundamental concern is one of notice@ when a claim for attorneys= fees is made. 8
the trial judge tracked the language of '57.105(1), which does not require a showing of bad faith. B. THE DECEMBER 14, 2005 ORDER AWARDING ATTORNEYS= FEES The award of attorneys= fees in favor of Respondent on appeal before the First District also expressly and directly conflicts with this Court=s holding in Moakley. Again, if the Award was made under the inherent power of the court, a finding of bad faith conduct supported by detailed factual findings must be made by the court below and there was no such finding. The Award also conflicts with this Court=s opinion in Muckenfuss v. Deltona Corp., 508 So. 2d 340 (Fla. 1987). In Muckenfuss, this Court reversed an award of attorney=s fees, notwithstanding a finding that a substantial portion of the suit was meritless, because justiciable issues were present. Significantly, the First District found in favor of Petitioner on appeal by finding that Respondent failed to comply with the 21-day notice requirement. The sole basis for upholding the award of attorneys= fees was thus on the court=s own Ainitiative.@ Consequently, a portion of the appeal was resolved in favor of the Petitioner and attorneys= fees were not properly awarded against Petitioner here. Moreover, '57.105 requires reversal of a fee award if the grounds for the award have not been met. There are no findings by the First District Court of Appeal as to improper conduct of counsel on appeal as required by Boca Burger, Inc. v. Forum, 912 9
So. 2d 561(Fla. 2005)(A[B]ecause the district court=s opinion addressed almost exclusively counsel=s conduct in the trial court, we cannot determine to what extent, if any, the court intended to impose sanctions for conduct that occurred in the appellate court.@) ARGUMENT II- CONFLICTS WITH OTHER DISTRICT COURTS A. THE DECEMBER 14, 2005 OPINION The Opinion of the First District Court of Appeal also conflicts with the following district court of appeal decisions: Allegheny Casualty Company v. Roche, 885 So. 2d 1016 (Fla. 5 th DCA 2004)(award of attorney=s fees must be reversed when procedures described in Moakley were not followed); T/F Systems, Inc. v. Malt, 814 So. 2d 511 (Fla. 4 th DCA 2002)(patent owner was not entitled to an award of attorney fees, based on the inherent authority of the court; court failed to give licensee an opportunity to be heard on the fee issue, including the opportunity to present witnesses and other evidence). 9 B. THE DECEMBER 14, 2005 ORDER AWARDING ATTORNEYS= FEES 9 See also Tobin v. Bursch, So. 2d, 2005 WL 714050 (Fla. 3d DCA 2005)(opinion not released for publication and is subject to revision or withdrawal)(evidentiary hearing is required to determine whether the plaintiff=s attorney acted in good faith, based on the representations of his or her client as to the existence of 10
material facts). 11
The order awarding attorneys= fees entered on December 14, 2005 by the First District also expressly and directly conflicts with the following opinions of other District Courts of Appeal: Sunset Park Church of God, Inc., So. 2d, 2005 WL 3076595 (Fla. 5 th DCA 2005)(award of attorneys= fees must be based on court=s finding of complete absence of justiciable issues in action); Orange County Building Codes v. Strickland Construction Services, 913 So. 2d 718 (Fla. 5 th DCA 2005)(award of attorneys= fees vacates in view of the technical failure to enunciate a basis for the award under '57.105(1)); Connelly v. Old Bridge Village Co-Op, Inc., 915 So. 2d 652 (Fla. 2d DCA 2005)(amendments to statute governing sanctions for raising unsupported claims, while broader than its predecessors, is still intended to address the issue of frivolous pleadings). CONCLUSION For the foregoing reasons, the Court should exercise its review jurisdiction. Respectfully submitted, Marie A. Mattox [FBN 0739685] MARIE A. MATTOX, P.A. 310 East Bradford Road Tallahassee, FL 32303 (850) 383-4800 (telephone) (850) 383-4801 (facsimile 12
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished to Marsha Rule, P.O. Box 551, Tallahassee, Florida 32302-0551 by United States Mail this 23rd day of January, 2006: Marie A. Mattox 13