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Florida Wellness & Rehabilitation Center, Inc. v. Mark J. Feldman, P.A.

Florida Court of Appeals, Third District

June 12, 2019

Florida Wellness & Rehabilitation Center, Inc., etc., Petitioner,
v.
Mark J. Feldman, P.A., and Mark J. Feldman, Respondents.

         Not final until disposition of timely filed motion for rehearing.

          A Writ of Certiorari to the Circuit Court for Miami-Dade County, Appellate Division, Bertila Soto, Chief Judge and Pedro P. Echarte, Jr. and Lisa S. Walsh, Judges. Lower Tribunal No. 16-50

          Ricardo A. Banciella, P.A., and Ricardo A. Banciella, for petitioner.

          Mark J. Feldman, P.A., and Mark J. Feldman, for respondents.

          Before EMAS, C.J., and SCALES and LINDSEY, JJ.

          EMAS, C.J.

         I. INTRODUCTION

         Florida Wellness & Rehabilitation Center, Inc. ("the Center") seeks second-tier certiorari review from an order of the circuit court, in its appellate capacity, denying the Center's motion to enforce the previously-issued mandate awarding the Center appellate attorney's fees. The circuit court concluded that the law of the case doctrine precluded it from enforcing its mandate because this court, in a subsequent appeal in the same case, denied the Center's motion for appellate attorney's fees. We hold that the law of the case doctrine does not apply, and the circuit court's application of that doctrine constitutes a departure from the essential requirements of the law. We therefore grant the petition and quash the circuit court's order.

         II. FACTS AND PROCEDURAL BACKGROUND

         Mark Feldman, P.A. ("the Law Firm"), represented the Center in a personal injury protection (PIP) lawsuit brought against United Automobile Insurance Company in county court.[1] The Law Firm was discharged, and moved to enforce a charging lien against the Center for legal services and costs.

         In 2016, the trial court granted the Center's motion for summary judgment on the charging lien, holding that because "the litigation produce[d] no judgment of monetary value for the client, the Court may not impose a charging lien for the attorney's benefit."

         The trial court entered judgment, denying the Law Firm's motion to enforce a charging lien against the Center, and the circuit court, on August 30, 2017, affirmed the trial court's 2016 order in an unelaborated per curiam opinion.

         a. The Center's motion for appellate attorney's fees filed in the appellate division of the circuit court

         During the course of the appeal to the circuit court, the Center sought appellate attorney's fees on two separate grounds: (1) Florida Rule of Appellate Procedure 9.140(b) (attorney's fees as a sanction), alleging the Law Firm's initial brief and the arguments contained in that brief were "frivolous or in bad faith;" and (2) section 768.79, Florida Statutes (2017) (offer of judgment statute).

         The circuit court granted the Center's motion for appellate attorney's fees as a sanction pursuant to rule 9.410(b) and remanded to the trial court "to determine the amount of a reasonable fee." The circuit court also granted the Center's motion for appellate attorney's fees pursuant to section 768.79, conditioned upon the trial court's "determination of sufficiency of proposal." On January 9, 2018, the circuit court's appellate mandate issued.

         Meanwhile, on November 29, 2017, the Law Firm filed a petition for second-tier certiorari with this court, challenging the circuit court's per curiam affirmance of the county court judgment and order denying the Law Firm's charging lien. Importantly, the Law Firm's petition also sought review of the circuit court order awarding appellate attorney's fees under rule 9.410(b) and section 768.79. We denied the Law Firm's petition, without opinion, on February 9, 2018.

         b. The Center's motion for appellate attorney's fees filed in this Court

         As it did during the appeal to the circuit court, the Center filed motions for attorney's fees with this court during the pendency of the Law Firm's 2017 petition ...


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