MEYER

v.

SMITH

8295 N. Military Trail, Suite A Palm Beach Gardens, FL 33410 [email protected] [email protected]

PER CURIAM.

The trial court's final judgment is affirmed. Appellee's Motion for Sanctions and Motion for Attorney's fees are denied because Appellants did not file a frivolous appeal. Although Appellants' arguments are not supported by an application of current law, Appellants presented a good-faith argument for the modification of existing law.

BROWN and OFTEDAL, JJ., concur; HAFELE, J., concurs in part and dissents in part with opinion. HAFELE, J., concurs in part and dissents in part with opinion.

I concur in affirming the trial court's final judgment. However, I would grant Appellee's Motion for Sanctions and Motion for Attorney's Fees.

An appellate court has the authority to award appellate attorneys fees under Section 57.105, Florida Statutes, when an attorney files a frivolous appeal. Florida Houndsmen Association v. State, Fish and Wildlife Conservation Commission, 134 So. 3d 999, 1001 (Fla. 1st DCA 2012). An appeal is frivolous if it is "completely without merit in law and cannot be supported by a reasonable argument for an extension, modification, or reversal of existing law." Id. (internal quotations and citations omitted).

The law currently, and at the time Appellants commenced this appeal, requires an independent expert witness to testify regarding the reasonableness of attorneys' fees when an attorney seeks to recover unpaid legal fees from his client pursuant to a contractual fee agreement. Roshkind v. Machiela, 45 So. 3d 480, 482 (Fla. 4th DCA 2010); see Schwartz v. Bloch, 88 So. 3d 1068, 1071-72 (Fla. 4th DCA 2012). If "the district court of the district in which the trial court is located has decided the issue, the trial court is bound to follow it." State v. Hayes, 333 So. 2d 51, 53 (Fla. 4th DCA 1976). Therefore, as this Court is bound by the Fourth District Court of Appeal's holding in Roshkind, Appellants' argument on appeal is not supported by an application of the current law.

Even though Appellants' argument is not supported by the current law, Appellants' appeal would not be frivolous if it were supported by a reasonable argument for extension, modification, or reversal of existing law. This Court is bound to apply the Fourth District Court of Appeal's precedent from Roshkind and therefore cannot modify the current law in the direction that Appellants advocate. In the absence of a contrary Florida Supreme Court decision, a district court of appeal can extend, modify, or reverse existing law. See Hayes, 333 So. 2d at 52-53.

Even if Appellants were to seek certiorari review of this Court's decision to the Fourth District Court of Appeal, certiorari review of a circuit court acting in its appellate capacity is "only available where the circuit court does not afford procedural due process or departs from the essential requirements of law." Progressive Express Insurance Co. v. Physician's Injury Care Center, 906 So. 2d 1125, 1126 (Fla. 5th DCA 2005). A departure from the essential requirements of law is more than a simple legal error; it is a "violation of a clearly established principle of law resulting in a miscarriage of justice." Id. Here, as this Court has applied controlling case law, the Fourth District Court of Appeal cannot grant certiorari review of this Court's decision. Therefore, I would grant Appellee's Motion for Sanctions and Motion for Attorneys' Fees and remand to the trial court to determine reasonable appellate attorneys' fees.