The Legacy of Justice Arthur J. England, Jr: A Supreme Court of Limited Jurisdiction

Justice Arthur England

–Justice Arthur England. Photo courtesy State Archives of Florida, Florida Memory, http://floridamemory.com/items/show/19904

The Florida Bar Journal this month contains a fascinating analysis of the legacy of recently deceased former Florida Supreme Court Justice Arthur J. England. If you’ve ever gotten a PCA opinion from a District Court of Appeal and lamented the fact that you couldn’t seek further review from the Florida Supreme Court, it seems you have Justice England to thank. The article goes into great detail about Justice England’s consistent string of concurring and dissenting opinions in the late 1970s, all of which argued that the Florida Supreme Court should not go behind a no-opinion DCA decision to further review the underlying “record proper,” as the Court held it could in Foley v. Weaver Drugs, Inc., 177 So.2d 221, 225 (Fla. 1965). In 1978, then Chief Justice England appointed an Appellate Structure Commission, which analyzed the jurisdiction of the court system and eventually recommended a constitutional amendment to limit the Supreme Court’s jurisdiction. By 1980, the Florida Supreme Court, interpreting it’s new constitutional scope, ruled that it lacked conflict jurisdiction over unelaborated PCAs. See Jenkins v. State, 385 So.2d 1356, 1359 (Fla. 1980).

The article provides lots of interesting background about the political and judicial workings at play to create such a sea-change in the jurisdiction of the Florida Supreme Court, and in the Florida court system as a whole. If you’re a rules geek like me, it is definitely worth the read!

More Time to Serve Rule 1.530 Motion for New Trial or Rehearing

The Florida Supreme Court last week approved several changes to the Florida Rules of Civil Procedure [.pdf]. The Rule change most likely to affect appellate practitioners — for the better — is the change to Rule 1.530:

Time for Motion. A motion for new trial or for rehearing shall be served not later than 1015 days after the return of the verdict in a jury action or the date of filing of the judgment in a non-jury action. A timely motion may be amended to state new grounds in the discretion of the court at any time before the motion is determined.

The time for service of a motion to alter or amend the judgment under 1.530(g) and for the court to grant rehearing on its own initiative under 1.530(d) is likewise expanded from 10 to 15 days.

This rule change is made without comment from the Supreme Court, but it makes a lot of sense. It can be quite difficult to obtain transcripts in time to prepare a good motion for rehearing, and having a transcript to support the motion is a great help to both the trial and appellate court. I am glad to see it. And the added bonus? Those who are not paying attention to the rule change will be early, rather than late, so this won’t cause a lot of litigation over timeliness of these (jurisdictional) motions.

The change is effective January 1, 2014.

Florida Supreme Court Approves Alternative Fee Recovery

The Florida Supreme Court last week resolved a circuit split between the Second and Fourth District Courts of Appeal and held that alternative fee recovery clauses in attorney engagement contracts are permissible and enforceable. What is an alternative fee recovery clause and why is it important to lawyers and clients? An alternative fee recovery clause, in essence, allows the court to award attorneys fees for the true value of the work performed, even if the client actually paid a discount rate. This allows lawyers to take cases their clients might not otherwise be able to afford, with the promise of a market rate fee award at the end of the litigation. As explained by the Court:

This clause generally provides for an attorney’s fee of the greater of either (i) a specified fee if the fee is paid by the client, or (ii) a court-awarded reasonable fee if the fee is paid by a third-party pursuant to a fee-shifting provision.

First Baptist Church of Cape Coral, Florida, Inc. v. Compass Const., Inc., __ So.3d ___, No. SC11-1278, 2013 WL 2349380 (Fla. 2013) [.pdf].

The Court upheld the billing arrangement even though the issue arrose in the context of an indemnification action (which was the reason for the dissent of Justice Lewis). The Court noted that the balancing act required by the lodestar analysis ensures that the resulting fee award is reasonable and not excessive.

The case is important because there is a line of fee award cases that hold that the recovery is limited to a reasonable fee or the amount actually paid by the client, whichever is greater. But First Baptist makes clear that the analysis is more nuanced — it’s limited not to what the client paid, but what the client agreed the fee would be. If the client agrees in advance that the fee is the greater of two calculations, the Court should conduct the calculations and award the greater of them, enforcing the parties’ contract.

That makes this case a must-read for any attorney considering having such a clause in his or her engagement contract.