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FCCI Commercial Insurance Co. v. Empire Indemnity Insurance Co.

Florida Court of Appeals, Second District

July 13, 2018

FCCI COMMERCIAL INSURANCE COMPANY, Appellant,
v.
EMPIRE INDEMNITY INSURANCE COMPANY, as subrogee and assignee of LAKEVIEW AT CARLTON LAKES CONDOMINIUM ASSOCIATION, INC.; PATNODE ROOFING, INC.; CELERITY CONSTRUCTION, INC.; and NTC DEVELOPMENT, LTD., Appellees.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

          Appeal from the Circuit Court for Collier County; Cynthia A. Pivacek and Lauren L. Brodie, Judges.

          Robert M. Darroch and Chad W. Bickerton of Goodman McGuffey LLP, Sarasota, for Appellant.

          Wayne M. Alder and Andrew M. Greenidge of Kaufman Dolowich & Voluck, LLP, Boca Raton, for Appellee Empire Indemnity Insurance Company.

         No appearance for remaining Appellees.

          ROTHSTEIN-YOUAKIM, JUDGE.

         FCCI Commercial Insurance Company (FCCI) appeals the trial court's order awarding attorney's fees to Empire Indemnity Insurance Company (Empire), as subrogee and assignee of Lakeview at Carlton Lakes Condominium Association, Inc., under the trial court's inherent authority to impose sanctions for egregious or bad-faith conduct. FCCI had retained an attorney to defend its insureds, Celerity Construction, Inc. (Celerity), and NTC Development, Ltd. (NTC), in Empire's construction-defect action, but on Empire's motion, the trial court disqualified the attorney for misconduct and determined that Empire was entitled to unspecified attorney's fees and costs "in connection with" the motion (the 2012 order). After FCCI intervened and moved for summary judgment on the fee issue, the court held a hearing and awarded Empire attorney's fees as a sanction against FCCI based on its finding that FCCI "did direct and orchestrate" the attorney's misconduct (the 2016 order).[1] Because the evidence did not support a finding that FCCI had engaged in egregious or bad-faith conduct, we reverse the award of fees and direct the trial court to enter summary judgment in FCCI's favor on Empire's supplemental precautionary motion for attorney fees.[2]

         Background

         In the 2012 order, the trial court determined that the attorney had improperly initiated direct contact with a represented party, had improperly obtained privileged documents from that represented party and then forwarded them to other defendants rather than informing the sender, and, in so doing, had violated various Rules of Civil Procedure and Rules Regulating the Florida Bar. Accordingly, the court disqualified the attorney. The court also generally granted Empire's request for sanctions by determining that Empire was entitled to attorney's fees. Celerity and NTC sought certiorari review of the 2012 order, and this court denied their petition per curiam. See Celerity Constr., Inc. v. Empire Indem. Ins. Co., 125 So.3d 1026 (Fla. 2d DCA 2013) (table decision).

         Thereafter, Empire filed a "supplemental precautionary motion for attorney's fees" based on the 2012 order, in which Empire also sought discovery regarding FCCI's role, if any, in the attorney's misconduct. Consequently, FCCI sought and was granted leave to intervene in connection with the motion. FCCI subsequently moved for summary judgment on the motion, arguing, among other things, that it could not be liable for the attorney's misconduct and that it had not engaged in any misconduct itself. As set forth above, after a hearing, the court denied FCCI's motion for summary judgment and granted Empire's motion for fees. The trial court subsequently entered a final order awarding Empire attorney's fees against FCCI, and this appeal followed.

         Analysis

         As an initial matter, Empire incorrectly contends that we lack jurisdiction to consider this appeal. See Burt v. SP Healthcare Holdings, LLC, 163 So.3d 1274, 1275 (Fla. 2d DCA 2015). Not only is the order awarding Empire attorney's fees an executable judgment against FCCI concluding a portion of the litigation ancillary to Empire's ongoing litigation against Celerity and NTC (and other codefendants), see Hastings v. Osius, 104 So.2d 21, 22 (Fla. 1958); Burt, 163 So.3d at 1275; Saye v. Pieschacon, 750 So.2d 759, 760-61 (Fla. 1st DCA 2000), but FCCI's limited intervention solely for the purpose of addressing fees demonstrates that the conclusion of the attorney fees proceeding ended judicial labor as to FCCI, see Fla. R. App. P. 9.110(k); Smith v. State, 902 So.2d 179, 181 (Fla. 3d DCA 2005) (holding that an order awarding sanctions against an attorney was a final, appealable order because the entry of sanctions ended judicial labor in the case with respect to a nonparty); see also Gator Boring & Trenching, Inc. v. Westra Constr. Corp., 210 So.3d 175, 180 (Fla. 2d DCA 2016) ("Because the trial court's orders completely dispose of all claims involving Travelers, we have jurisdiction to review Gator's appeal from the dismissal of count II as a partial final judgment in accordance with rule 9.110(k).").

         Empire also argues that Celerity and NTC's earlier certiorari proceeding bars this appeal under the law-of-the-case doctrine. Again, Empire is incorrect. First, the law-of-the-case doctrine does not apply because our review in the prior certiorari proceeding was limited to the attorney's disqualification; we lacked certiorari jurisdiction to review the sanction portion of the order. See Parrish v. RL Regi Fin., LLC, 194 So.3d 571, 571 (Fla. 2d DCA 2016) ("Generally, an order imposing monetary sanctions against trial counsel and directing that they be paid on a certain date is a final, appealable order. . . . An order determining an entitlement to attorney's fees and costs without setting the amount is a nonfinal, nonappealable order." (first citing Burt, 163 So.3d at 1275; then citing Greenberg v. Greenberg, 129 So.3d 470, 471 (Fla. 2d DCA 2012))); DeMartino v. Simat, 948 So.2d 841, 843-44 (Fla. 2d DCA 2007) ("[T]he law of the case doctrine . . . applies only to rulings on questions of law that were actually presented and considered in a prior appeal. Other than the dismissal of a previous attempt to appeal a nonfinal, nonappealable order, there have been no appellate court rulings on questions of law in this case." (first citing Fla. Dep't of Transp. v. Juliano, 801 So.2d 101, 106 (Fla. 2001); then citing U.S. Concrete Pipe Co. v. Bould, 437 So.2d 1061, 1063 (Fla. 1983))).

         Moreover, the findings in the 2012 order pertained only to the attorney's conduct, and as explained below, findings of misconduct must be tailored to the entity against which sanctions are entered. Although the findings in the 2012 order provided the context for the 2016 order, the 2012 order did not address whether FCCI had engaged in egregious conduct or had acted in bad faith in directing the attorney.[3]See Juliano, 801 So.2d at 106 ("Under the law of the case doctrine, a trial court is bound to follow prior rulings of the appellate court as long as the facts on which such decision are based continue to be the facts of the case."); Specialty Rests. Corp. v. Elliott, 924 So.2d 834, 838 (Fla. 2d DCA 2005) ...


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