SEARCY, DENNEY, SCAROLA, BARNHART & SHIPLEY, etc., et al., Petitioners,
STATE OF FLORIDA, Respondent.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF
for Review of the Decision of the District Court of Appeal -
Certified Great Public Importance Fourth District - Case No.
4D13-3497 (Palm Beach County)
Louise Caruso of Edna L. Caruso P.A., West Palm Beach,
Florida; Christian Dietrich Searcy and Jack Patrick Hill of
Searcy Denney Scarola Barnhart & Shipley, P.A., West Palm
Beach, Florida; and George Alexander Vaka of the Vaka Law
Group, P.L., Tampa, Florida, for Petitioners.
Jo Bondi, Attorney General, and Rachel Erin Nordby, Deputy
Solicitor General, Tallahassee, Florida, for Respondent.
Leigh Harrell, Rebecca Bowen Creed, and Bryan Scott Gowdy of
Creed & Gowdy, P.A., Jacksonville, Florida, for Amicus
Curiae Florida Justice Association.
Downey and Robert Lee McElroy, IV of Downey | McElroy, P.A.,
Palm Beach Gardens, Florida, for Amicus Curiae Guardian Ad
T. Levesque, Tallahassee, Florida, for Amici Curiae the
Florida Senate and Andy Gardiner, in his official capacity as
President of the Florida Senate.
Matthew Joseph Carson, Tallahassee, Florida, for Amici Curiae
the Florida House of Representatives and Steve Crisafulli, in
his official capacity as Speaker of the Florida House of
case is before the Court for review of the decision of the
Fourth District Court of Appeal in Searcy Denney Scarola
Barnhart & Shipley, P.A. v. State, 194 So.3d 349
(Fla. 4th DCA 2015). In a separate decision, the district
court certified the following question to be of great public
AFTER THE ENACTMENT OF SECTION 768.28, FLORIDA STATUTES, AND
THE ADOPTION OF FLORIDA SENATE RULE 4.81(6), IS IT
CONSTITUTIONALLY PERMISSIBLE FOR THE FLORIDA LEGISLATURE TO
LIMIT THE AMOUNT OF ATTORNEYS' FEES PAID FROM A
GUARDIANSHIP TRUST ESTABLISHED BY A LEGISLATIVE CLAIMS BILL?
Searcy Denney Scarola Barnhart & Shipley, P.A. v.
State, 190 So.3d 120 (Fla. 4th DCA 2015).
Accordingly, we have jurisdiction. See art. V,
§ 3(b)(4), Fla. Const. As we explain, we answer the
certified question in the negative when such limitation
impairs an existing contract. Although the Legislature has
complete discretion in its decision whether to grant a
legislative claims bill, which is an act of grace, the claims
bill may not unconstitutionally impair the preexisting
contract between the claimant and the law firm for
attorneys' fees, which may be recovered subject to the
limits set forth in section 768.28(8), Florida Statutes
(2007), Florida's limited waiver of sovereign immunity.
AND PROCEDURAL BACKGROUND
case arose after the birth of Aaron Edwards, during which he
sustained a catastrophic brain injury as a result of the
negligence of employees at Lee Memorial Health System (Lee
Memorial) in 1997. The law firm of Searcy Denney Scarola
Barnhart & Shipley, P.A. (Searcy Denney) was retained by
the family to seek compensation under a standard contingency
fee agreement providing for a payment of 40 percent of any
recovery if a lawsuit was filed, plus costs. The agreement
also stated that "[i]n the event that one of the parties
to pay my claim for damages is a governmental agency, I
understand that Federal and Florida Law may limit the amount
of attorney fees charged by [Searcy Denney], and in that
event, I understand that the fees owed to [Searcy Denney]
shall be the amount provided by law."
case proceeded to a five-week jury trial in 2007, at which
the jury found Lee Memorial Health System's employees
negligent, and that the negligence resulted in damages to the
child in the amount of $28.3 million. The jury also awarded
the mother $1.34 million and the father $1 million. Because
the hospital was an independent special district of the State
of Florida, the trial court enforced the sovereign immunity
damage limitations in section 768.28(5), Florida Statutes
(2007), and entered a judgment against the hospital for $200,
000. This ruling was affirmed per curiam in Lee Memorial
Health System v. Edwards, 22 So.3d 81 (Fla. 2d DCA
2009), and is not at issue in this case.
Denney and various other firms were involved in litigation of
the medical malpractice suit, the first appeal, and a
subsequent two-year lobbying effort to secure a claims bill
from the Legislature on behalf of the injured child and his
parents. Because the waiver of sovereign immunity
in section 768.28 limited the family's recovery to only
$200, 000 of the $28.3 million judgment, a claims bill for
the excess judgment amount was filed in the Florida
Legislature in 2011, but was not passed during that
legislative session. However, in 2012 the Legislature passed
a claims bill, chapter 2012-249, Laws of Florida, directing
Lee Memorial to pay $10 million, with an additional $5
million to be paid in annual installments of $1 million each
to "the Guardianship of Aaron Edwards, to be placed in a
special needs trust created for the exclusive use and benefit
of Aaron Edwards, a minor." Ch. 2012-249, § 2, Laws
of Fla. The claims bill further stated that payment of fees
and costs from funds awarded in the claims bill shall not
exceed $100, 000. No funds were awarded in the claims bill
for the parents. In November 2012, the child's mother
petitioned to establish a guardianship over the minor
son's property, and Lee Memorial subsequently made its
first payment of $10 million.
Denney, with the full support of the family, then petitioned
the guardianship court to approve a closing statement
allowing $2.5 million for attorneys' fees and costs. This
requested amount was based on the contract that existed with
the Edwards family, as limited by the provisions of section
768.28(8), Florida Statutes. Section 768.28(8), a provision
of the limited waiver of sovereign immunity statute, states
in pertinent part, "No attorney may charge, demand,
receive, or collect, for services rendered, fees in excess of
25 percent of any judgment or settlement."
the petition to approve the closing statement also contended
that the limit on fees contained in the claims bill was
unconstitutional, the State of Florida intervened to defend
the constitutionality of the claims bill enactment. And
because of competing claims for a portion of the proceeds of
the claims bill, the guardianship court appointed a guardian
ad litem for the injured child. The evidence presented to the
guardianship court revealed that the firms seeking fees and
costs spent more than 7000 hours representing the family at
trial, on appeal, and during the claims bill process. The
evidence also demonstrated that costs of more than $500, 000
were expended during the representation. As to the law
firm's request for fees and costs of $2.5 million from
funds provided by the claims bill, the guardianship court,
relying on precedent from this Court and the Fourth District,
denied the request for fees in that amount, concluding that
the court lacked judicial authority to contravene the fee and
cost limitation the Legislature placed in the claims bill.
The guardianship court also denied the request to find the
fee limitation invalid and sever it from the remainder of the
Denney and the other firms appealed the order of the
guardianship court denying the $2.5 million in fees and
costs, contending that the $100, 000 fee and cost limitation
in the claims bill was an unconstitutional impairment of
their contract with the Edwards family, and that the
provision should be severed from the claims bill.
Alternatively, the firms argued in the district court that
the guardianship court had inherent jurisdiction to depart
from the legislative limitation because section 768.28(8),
Florida Statutes, would allow a fee up to 25 percent of the
Fourth District rejected these contentions, stating that
"[a]lthough sympathetic to Appellants' situation, we
must disagree with their legal arguments based on separation
of powers principles, supported by reasoning set forth from
the Florida Supreme Court." Searcy Denney, 194
So.3d at 349. After reciting a brief history of sovereign
immunity, both federal and state, the district court noted
that section 768.28 is the codification of the State's
limited waiver of sovereign immunity in tort actions, which
limits recovery against the state or its agencies or
subdivisions to $100, 000 per person or $200, 000 per
incident, with a 25 percent cap on attorneys' fees. The
statute further states that any portion of the judgment that
exceeds the amounts allowed under the limited waiver of
sovereign immunity may be paid in whole or in part only by an
act of the Legislature.
finding the fee limitation in the claims bill valid, the
district court relied on this Court's decision in
Gamble v. Wells, 450 So.2d 850 (Fla. 1984), the
underlying facts of which predated the waiver of sovereign
immunity statute. In Gamble, we held that an
attorney's fee limitation in a "private relief
act" granted by the Legislature was not an
unconstitutional impairment of contract because the private
relief act was "an act of grace, " and the
Legislature could "allow compensation, decide the amount
of compensation, and determine the conditions, if any, to be
placed on the appropriation." Gamble, 450 So.2d
at 853. The Fourth District also noted its earlier case in
which it held that the amount allowed in a claims bill was
voluntarily given by the Legislature and was separate and
apart from the recovery in the lawsuit-and that the
Legislature could limit attorneys' fees in a claims bill
"no matter what the underlying fee contract
provides." Searcy Denney, 194 So.3d at 353-54
(quoting Noel v. Sheldon J. Schlesinger, P.A., 984
So.2d 1265, 1267 (Fla. 4th DCA 2008)).
on the precedent discussed above, the majority of the
district court panel held that the guardianship court was
correct in recognizing the Legislature's prerogative to
limit the payment of fees and costs to $100, 000. While
sympathizing with the plight of the attorneys, and of persons
in the future who might have difficulty obtaining counsel to
take these types of cases, the Fourth District found those
concerns to be beyond the court's focus and more a policy
consideration to be taken up by the Legislature. Id.
at 355 n.5.
Judge Ciklin dissented and opined that under article I,
section 10, of the United States Constitution, and article I,
section 10, of the Florida Constitution, both of which
prohibit any law that impairs the obligation of contracts,
the fee agreement with the Edwards family was impaired by the
fee limitation provision in the claims bill. Searcy
Denney, 194 So.3d at 360-61 (Ciklin, C.J., dissenting).
He also reasoned that Senate Rule 4.81(6), which provides
that a claims bill may not be considered by the Senate until
all available administrative and judicial remedies have been
exhausted, expanded on the portion of section 768.28 that
allows the part of a judgment or settlement that exceeds the
statutory waiver of sovereign immunity amount to be reported
to the Legislature and paid by an act of the Legislature.
Id. at 358 (Ciklin, C.J., dissenting). Chief Judge
Ciklin recognized that not all contract impairments are
prohibited, but in this case, he concluded, the State failed
to show that the "draconian limitation on attorneys'
fees and costs was necessary to accomplish some type of
'important public purpose.' " Id. at
361 (Ciklin, C.J., dissenting).
Judge Ciklin also concluded that the Gamble decision
relied on by the circuit court and the majority was no longer
controlling because the cause of action accrued before the
limited waiver of sovereign immunity in section 768.28 and,
"[u]nlike the instant case, where the Edwards family was
permitted and required to file a lawsuit and obtain a bona
fide judgment pursuant to section 768.28(5), the plaintiff in
Gamble was not entitled-and thus had no need-to seek
relief and exhaust any remedies before going directly to the
Legislature." Id. at 363 (Ciklin, C.J.,
dissenting). He noted that Senate Rule 4.81(6), which also
requires a claimant to seek a judgment in a judicial or
administrative context before seeking a claims bill,
essentially required the Edwards family to "lawyer
up." Id. at 364 (Ciklin, C.J., dissenting).
Chief Judge Ciklin opined that the ability to employ legal
counsel has long been an important part of the right of
access to courts, which includes a prohibition on the
imposition of unreasonable financial burdens that serve to
obstruct individual access to courts; and contingency fee
agreements are directly related to the right of access to
courts. Id. at 365-66 (Ciklin, C.J., dissenting).
Accordingly, Chief Judge Ciklin concluded that the fee
limitation in the claims bill has a chilling effect on the
fundamental constitutional right of access to courts and
should be severed from the bill. Id. at 367-68
(Ciklin, C.J., dissenting).
the certified question presented in this case turns on the
validity of the additional provision in the claims bill that
states: "The total amount paid for attorney's fees,
lobbying fees, costs, and other similar expenses relating to
this claim may not exceed $100, 000." Ch. 2012-249,
§ 3, Laws of Fla.
Denney's challenge to the fee limitation in the claims
bill enacted in chapter 2012-249, Laws of Florida, is
primarily based on contentions that the fee limitation is
unconstitutional and that the district court misinterpreted
the provisions of section 768.28, Florida Statutes. Chapter
2012-249, Laws of Florida, being an enactment of the
Legislature, is reviewed under the same standard as we apply
to review of a statute. The constitutionality of a statute is
a pure question of law that is subject to de novo review.
City of Miami v. McGrath, 824 So.2d 143, 146 (Fla.
2002). However, we remain mindful that a statute comes to the
Court clothed with a presumption of correctness, and all
reasonable doubt about its validity must be resolved in favor
of constitutionality. Crist v. Ervin, 56 So.3d 745,
747 (Fla. 2010).
also called upon in this case to interpret the provisions of
section 768.28, Florida Statutes. Because this involves an
issue of statutory interpretation, review in this Court is
also de novo. Bennett v. St. Vincent's Med.
Ctr., 71 So.3d 828, 837 (Fla. 2011).
Statutory interpretation in any case "begin[s] with the
actual language used in the statute because legislative
intent is determined first and foremost from the
statute's text." Raymond James Fin. Servs., Inc.
v. Phillips, 126 So.3d 186, 190 (Fla. 2013) (quoting
Heart of Adoptions, Inc. v. J.A., 963 So.2d 189, 198
(Fla. 2007)). "When the language of the statute is clear
and unambiguous and conveys a clear and definite meaning,
there is no occasion for resorting to the rules of statutory
interpretation and construction; the statute must be given
its plain and obvious meaning." Bennett v. St.
Vincent's Med. Ctr., Inc.,71 So.3d 828, ...