IN THE SUPREME COURT OF THE STATE OF FLORIDA ANDERSON COLUMBIA and ) COMMERCIAL RISK MANAGEMENT, ) INC., ) ) Petitioners, ) ) Case No: SC05-1073 vs. ) ) JAMES BROWN, ) ) Respondent. ) ) ) ON PETITION FOR REVIEW OF OPINION OF THE FIRST DISTRICT COURT OF APPEAL OF FLORIDA RESPONDENT S ANSWER TO PETITIONER S JURISDICTIONAL BRIEF T. RHETT SMITH, ESQUIRE Florida Bar No. 843083 TERESA E. LILES, ESQUIRE Florida Bar No. 510998 T. RHETT SMITH, P.A. 714 North Spring Street Pensacola, Florida 32501 (850) 438-1220 Counsel for Respondent
TABLE OF CONTENTS Page Table of Contents i Table of Authorities ii Introduction 1 Summary of Argument 2 Argument THERE IS NO EXPRESS AND DIRECT CONFLICT BETWEEN THE DECISION OF THE FIRST DISTRICT COURT OF APPEAL AND DECISIONS OF OTHER DISTRICT COURTS; ACCORDINGLY, THIS COURT DOES NOT HAVE JURISDICTION UNDER RULE 9.030(a)(2)(A)(iv) 4 Conclusion 9 Certificate of Compliance 10 Certificate of Service 10 i
TABLE OF AUTHORITIES Florida Cases Page Anderson Columbia v. Brown, 30 Fla.L.Weekly D949 (Fla. 1 st DCA 2005) 2,4,9 Mangel v. Bob Dance Dodge, Inc., 739 So.2d 720 (Fla. 5 th DCA 1999) 4 HCA Health Services of Florida, Inc. v. Hillman, 870 So.2d 104 (Fla. 1 st DCA 2003) 2,3,4,5,6,7,8 Spaulding v. Albertson s, Inc., 610 So.2d 721 (Fla. 1 st DCA 1992) 3 Florida Statutes Section 440.34, Fla. Stat. (2003) 3,7,8 Florida Rules of Court Rule 4-1.5(b), R. Regulating Fla. Bar 2-3,7 Rule 9.030(a)(2)(A)(iv), Fla.R.App.P. 2,4,5,6,7,8,9 Rule 9.120(d), Fla.R.App.P. 6 Rule 9.210(a)(2), Fla.R.App.P. 10 ii
INTRODUCTION Throughout this Answer Brief, the Petitioners, Anderson Columbia and Commercial Risk Management, Inc., will be referred to collectively as Petitioners. The Respondent, James Brown, will be referrred to as the Respondent. The Judge of Compensation Claims will be referred to as the JCC. 1
SUMMARY OF THE ARGUMENT There is no express and direct conflict... on the same question of law between the decision of the First District Court of Appeal in Anderson Columbia v. Brown, 30 Fla.L.Weekly D949 (Fla. 1 st DCA 2005) and the opinion rendered by the Second District in HCA Health Services of Florida, Inc. v. Hillman, 870 So.2d 104 (Fla. 1 st DCA 2003). Respondent below sought production of the number of hours expended and hourly rate charged by opposing counsel; far from establishing that such information was protected work product in all cases, however, Hillman only stands for the proposition that the discovery may be justified in some cases but not in others and that it is a matter that should rest within the sound discretion of the trial court. Hillman, 870 So.2d at 107. The issue of whether the Judge of Compensation Claims in the instant case abused his discretion is properly raised on direct appeal or by petition for writ of certiorari, and does not form the basis to invoke this Court s conflict jurisdiction under Rule 9.030(a)(2)(A)(iv), Fla.R.App.P. Moreover, while Respondent maintains that the relevancy of the requested information is an issue on the merits, and does not confer conflict jurisdiction under the above-referenced Rule, Petitioners reliance on Hillman is misplaced. That decision dealt with the relevancy of opposing counsel s billing records in establishing a reasonable attorney s fee under Rule 4-1.5(b) of the Rules Regulating the Florida Bar. Here, the 2003 amendments to F.S. 440.34 preclude any consideration of the factors enumerated in that Rule, and instead limit claimants attorneys to a maximum statutory fee of $1,500.00, regardless of the number of hours expended, difficulty of issues presented, or any other 2
consideration. 1 Respondent seeks to build a record in support of a constitutional challenge to F.S. 440.34, and the information sought in the instant case is directly relevant to demonstrate that the statute unconstitutionally impairs the rights of injured employees to seek counsel and access to the courts. The JCC below agreed that the information sought was relevant, and that determination was upheld by the First District Court of Appeal. Petitioners disagreement with those rulings does not confer conflict jurisdiction on this Court, as the Hillman opinion clearly contemplates that relevancy determinations are within the sound discretion of the trial court. This Court should therefore decline to exercise jurisdiction. 1 This distinction renders the Petitioners reliance on Spaulding v. Albertson s, Inc., 610 So.2d 721 (Fla. 1 st DCA 1992) invalid. At the time Spaulding was decided, Judges of Compensation Claims had wide discretion in awarding claimants attorney s fees, unlike the current state of the law which limits one class of attorneys to a maximum fee of $1,500 regardless of the attorney time necessitated in responding to the actions of opposing counsel, who, as the First District noted in Spaulding, enjoy virtually guaranteed payment by solvent insurance companies. Id. at 724. 3
ARGUMENT THERE IS NO EXPRESS AND DIRECT CONFLICT BETWEEN THE DECISION OF THE FIRST DISTRICT COURT OF APPEAL AND DECISIONS OF OTHER DISTRICT COURTS; ACCORDINGLY, THIS COURT DOES NOT HAVE JURISDICTION UNDER RULE 9.030(a)(2)(A)(iv), Fla.R.App.P. Jurisdiction is conferred on this Court to review decisions of the District Courts of Appeal which expressly and directly conflict with a decision of another district court of appeal...on the same question of law. Rule 9.030(a)(2)(A)(iv), Fla.R.App.P. (emphasis supplied). Petititioners argue that the decision below [Anderson Columbia v. Brown, 30 Fla.L.Weekly D949 (Fla. 1 st DCA 2005)] is in express and direct conflict with the decision of the Second District Court of Appeal in HCA v. Hillman, 870 So.2d 104 (Fla. 2 nd DCA 2003); however, no such conflict exists. This Court is therefore without jurisdiction to review the decision rendered by the First District below. Petitioners state in their Brief on Jurisdiction that Hillman established without qualification that attorney billing records are protected work product. [Petitioners Jurisdictional Brief at p.3] This statement is incorrect. The Second District in Hillman expressly pointed out the following: In Mangel v. Bob Dance Dodge, Inc., 739 So.2d 720 (Fla. 5 th DCA 1999), the Fifth District discussed some of the difficulties surrounding discovery of billing records and affirmed an order denying discovery. Judge Griffin accurately noted in that opinion that some jurisdictions bar this discovery but that Florida has not yet adopted a hard and fast rule. This reflects the salutary view that the discovery may be justified in some cases but not in others and that it is a matter that should rest within the sound discretion of the trial court. We agree. Id. at 107 (emphasis supplied). Far from establishing privilege without qualification, 4
therefore, the Hillman opinion simply stands for the proposition that the determination of whether the requested discovery should be had is one best left to the discretion of the trial judge. Petitioners continue to argue that the JCC in the instant case abused his discretion in requiring production of the number of hours expended and the hourly rate charged by opposing counsel; however, this argument is properly raised on direct appeal or petition for writ of certiorari to the First District Court of Appeal, and cannot form the basis for this Court to assume conflict jurisdiction under Rule 9.030(a)(2)(A)(iv), Fla.R.App.P. In addition, it should be noted that the Petitioners have already produced the number of hours expended. Accordingly, the only information for which the Petitioners seek protection is the hourly rate charged 2. Nowhere in Hillman opinion does the Second District Court state that the hourly rate charged by opposing counsel is protected by either the attorney-client or the work product privilege. Instead, the Court in Hillman reaffirmed that Florida has no hard and fast rule regarding discovery of such information, and that the issue remains within the discretion of the trial judge. The First District Court of Appeal held that the JCC in this case did not abuse his discretion in ordering production of the billing information, and that determination is not in conflict with the Hillman opinion. In an attempt to demonstrate a conflict between Hillman and the decision of the First District in the instant case, Petitioners argue that the discovery information requested 2 Petitioners state in their brief on jurisdiction that [t]he JCC held that the E/C could redact the description of services rendered. [Petitioners Jurisdictional Brief at p.6, n.1] This statement is misleading. The Claimant expressly represented at hearing that he did not seek production of the description of services rendered, only the number of hours 5
herein is not relevant. This is a matter, however, that goes to the merits of this case, and is improperly argued in a jurisdictional brief. Rule 9.120(d), Fla.R.App.P. As noted, Hillman did not state that attorney s fee information is never relevant, only that the information requested in that case was only marginally relevant to the attorney s fee determination. Since the Second District in Hillman specifically recognized that Florida has no hard and fast rule regarding discovery of billing information, there can be no express and direct conflict with the decision below. Since Hillman is not in conflict with the decision rendered by the First District Court of Appeal, let alone in express and direct conflict with that decision, this Court has no conflict jurisdiction under Rule 9.030(a)(2)(A)(iv), Fla.R.App.P. Assuming arguendo that the relevance of the discovery request in the instant case goes to the jurisdictional issue, Respondent will demonstrate that the hourly rate charged by opposing counsel is directly relevant and indeed necessary to build a record for the anticipated constitutional challenge to F.S. 440.34 and that Hillman is inapplicable to the facts of this case. Accordingly, the Hillman decision did not address the same question of law, and the Petitioners attempt to invoke the conflict jurisdiction of this Court should be denied. Rule 9.030(a)(2)(A)(iv), Fla.R.App.P. In Hillman, the successful plaintiffs in a whistleblower case sought production of the defendant s attorney s timesheets, invoices, bills, reimbursements, payments, correspondence, contract for services, fee agreement, hourly fee schedules, all computer generated records pertaining to attorneys fees, costs, expended and hourly rate charged. 6
expenses..., or other related documents in the above-named case. Id. at 106. In that case, the Second District granted the defendant s petition for a writ of certiorari and quashed the discovery order, noting that the broad discovery requested therein was only marginally relevant to the factors enumerated in Rule 4-1.5(b) of the Rules Regulating the Florida Bar for determining a reasonable attorney s fee. Id. at 107. The issue in the instant case is readily distinguishable. The factors listed in Rule 4-1.5(b) are not applicable here, as F.S. 440.34 precludes any consideration of those factors and instead establishes a maximum statutory attorney s fee of $1,500.00 for claimants attorneys without respect to the amount of time expended, difficulty of issues presented, etc. Accordingly, in this case the Respondent is not seeking fees commensurate with the fees charged by defense counsel; F.S. 440.34 precludes such an award. Instead, the Respondent seeks to build a record in support of a constitutional argument that the 2003 amendments to F.S. 440.34 which limit a claimant s attorney to a statutory fee regardless of the hours expended in the litigation (in the instant case, $500) violates injured employees rights to access to counsel and the courts. In other words, unlike the situation in Hillman, the Respondent herein does not seek the fee information to establish a comparable reasonable attorney s fee; in fact, the statutory fee limitation established by the 2003 amendments to F.S. 440.34 makes such a demonstration impossible. Instead, the Respondent seeks to demonstrate that the statutory fee limitation is unreasonable. The JCC below held that the number of hours expended and hourly rate charged by opposing counsel were relevant to build a record in support of a constitutional challenge; the First District Court of Appeal agreed. Petitioners disagreement with those rulings cannot form the basis for conflict jurisdiction under Rule 7
9.030(a)(2)(A)(iv), since the decision on which Petitioners rely to assert conflict contemplates that such determinations of relevance are within the sound discretion of the trial court. CONCLUSION For the reasons stated herein, the Petitioners have failed to demonstrate an express and direct conflict between the decision of the First District Court of Appeal in Anderson Columbia v. Brown, supra, and any decision from any other district or from this Court. Accordingly, Petitioners have failed to invoke the jurisdiction of this Court under Rule 9.030(a)(2)(A)(iv), Fla.R.App.P. Respectfully submitted, T. RHETT SMITH, ESQUIRE Florida Bar No, 843083 TERESA E. LILES, ESQUIRE Florida Bar No. 843083 T. RHETT SMITH, P.A. 714 North Spring Street Pensacola, Florida 32501 (850) 438-1220 Counsel for Respondent 8
CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that the foregoing Answer Brief on Jurisdiction is in compliance with the font requirements of Rule 9.210(a)(2), Fla.R.App.P. CERTIFICATE OF SERVICE T. RHETT SMITH, ESQUIRE Florida Bar No, 843083 TERESA E. LILES, ESQUIRE Florida Bar No. 843083 T. RHETT SMITH, P.A. 714 North Spring Street Pensacola, Florida 32501 (850) 438-1220 Counsel for Respondent I HEREBY CERTIFY that a true and correct copy of the foregoing was served on Mary L. Wakeman, Esq., and Ryan M. Barnett, Esq., McConnaughhay, Duffy, Coonrod, Pope & Weaver, P.A., Post Office Drawer 229, Tallahassee, Florida 32302-0229, counsel for Petitioners, by regular U.S. Mail, this 18th day of July, 2005. T. RHETT SMITH, ESQUIRE Florida Bar No, 843083 TERESA E. LILES, ESQUIRE Florida Bar No. 843083 T. RHETT SMITH, P.A. 714 North Spring Street Pensacola, Florida 32501 (850) 438-1220 Counsel for Respondent 9