Trial Court’s Mandamus Reviewable

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If a trial court’s stay order maintains the status quo, can the order be reviewed under Florida Rule of Appellate Procedure 9.130? Or, in plain English, is an injunction by any other name still a reviewable injunction? The Third DCA says yes.

In City of Sunny Isles Beach v. Temple B’Nai Zion, Inc., No. 3D10-1137 (Sept. 8, 2010) [.pdf], the city and the Temple are wrangling over whether the Temple can demolish its existing building to make way for a new one, or whether the city can prevent demolition by naming the Temple a historic site. The trial court issued a “writ of mandamus” that ordered the city not to designate the property as an historic site while the case proceeded. The City appealed, and the Court answered the threshhold question — whether the “writ” was an appealable non-final order — in the affirmative.

Florida Rule of Appellate Procedure 9.130(a)(3)(B) allows district courts of appeal to review “the non-final orders authorized herein”, including those that:

(B) grant, continue, modify, deny, or dissolve injunctions, or refuse to modify or dissolve injunctions;

So is a “mandamus” an injunction? It is when its purpose serves the same purpose as an injunction:

However, “[t]he very purpose of a temporary injunction is to preserve the status quo in order to prevent irreparable harm from occurring before a dispute is resolved. The Order in this case, by preserving the status quo … clearly constituted a temporary injunction.”

(citation omitted). Once framed as an injunction for review purposes, the court went on to explain that the order should also be reviewed as an injunction, and thus must comply with Florida Rule of Civil Procedure 1.610. It didn’t, and the Court therefore held the order to be an abuse of discretion.

The Role of Experts in Proving Appellate Attorney’s Fees

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You’ve won your appeal. You’ve gotten an award entitling you to appellate attorney’s fees. And now, you have to prove up what your attorney’s efforts are going to cost the other side. This is a case of “you have to spend money to make money” — because if you do not pay an expert to testify to the reasonablness of the fee, your award will be in jeopardy.

Experts Are Required to Prove Reasonablness of Fees

In Sourcetrack, LLC v. Ariba, Inc., 34 So.2d 766 (Fla. 2d DCA May 7, 2010) [.pdf], the Court struck a $302,617.75 award of appellate attorney’s fees because the party entitled to fees failed to present any expert testimony regarding the reasonable and necessary attorney’s fees. The Second DCA held that while a trial court has discretion in awarding attorney’s fees, that discretion can only be exercised based upon the evidence in the record. (Other DCA’s may be more lax on this, but why take a chance?). The Court also admonished that the award will be limited to what is considered a fair fee for a competant local attorney — so if you bring in expensive counsel from out of state, don’t expect to get reimbursed for their full fees.

What Is a Reasonable Attorney’s Fee?

Not a month later, the Second District overturned another award of fees, but this time, for being too low. In D’Alusio v. Gould & Lamb LLC, 26 So.2d 842 (Fla. 2d DCA June 2, 2010) [.pdf], the Court held that the trial court abused its discretion in awarding only $6,875 in fees where the parties and their experts pretty much agreed that the attorneys should reasonably be reimbursed for around 85 hours at $275-450 an hour for their work, for a total of $20-25,000. The Court held:

the circuit court abused its discretion in drastically reducing the number of hours that was reasonable for this appeal, in contravention of the amount agreed to by both experts, without any specific findings. Although the judge was not bound by the expert opinions or attorney affidavits in setting the award, the record is totally devoid of any evidence to support a conclusion that the award was reasonable.

Do I get Reimbursed for the Expert’s Fees?

The Court also held that the fees paid to the expert to testify as to reasonablenes of attorney’s fees are taxable as costs, and reversed the trial court’s failure to make such an award:

[e]xpert witness fees paid to the testifying expert are not discretionary if the attorney expects to be compensated for his testimony. (citations omitted).

There’s a lot of meat in D’Alusio, so definitely give it a read if you are pursuing attorney’s fees on appeal, especially in the Second DCA. It’s not enough to win an award, you have to prove what the attorney’s time was worth, too.

Dismissal Sanction Too Extreme

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Is a single violation of the Rules of Appellate Procedure severe enough to justify dismissal of the appeal as a sanction?

The Second DCA answered the question in the negative in Altman v. State, __ So.3d ___, No. 2D09-3871 (Aug. 6, 2010)[.pdf]. The opinion makes clear that the record is not exactly a model of clarity, due in large part to the fact that the appellant filed an inadequate Appendix. I’ve said it before: a proper Appendix is critical to effective appellate review.

Still, the Court still went out of its way to review, on certiorari, a lower courts’ dismissal of the appeal for failure file a timely brief. The case appears to be a criminal appeal where the circuit court acted in an appellate capacity, and the DCA’s patience may have been bolstered somewhat by the trial court conflating the rules for when a criminal appeal is due with the rules for when a civil appeal is due.

In any event, the circuit court sitting in its appellate capacity thought the brief was late, and relying on Florida Rule of Appellate Procedure 9.410 issued an order to show cause why the appeal shouldn’t be dismissed for failure to file a timely brief. The Appellant indirectly responded by moving for an enlargement of time to file a brief, explaining that the record was not yet completely transcribed. The Appellant was granted that enlargement, which gave her until July 23rd to file her initial brief.

Inexplicably, the court dismissed her appeal sua sponte on July 21st, vacating the enlargement of time that had been entered as “improvidently granted.” On review to the Second DCA, the Court held that this action failed to comply with procedural due process and the notice requirements of Rule 9.410. The Court concluded that “Dismissal is an extreme sanction and, as such, it is reserved for the most flagrant violations of the appellate rules. Without more, however, the failure to file a brief on time is not a serious enough violation to warrant dismissal of an appeal.” (emphasis in original).