THE STATE OF FLORIDA, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, ETC., APPELLANT,
v.
JASON TRAUTH AND LUIS LLAMAS, APPELLEES
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The Florida Department of Highway Safety and Motor Vehicles appealed an order awarding attorneys' fees to drivers whose license suspensions were overturned. The court reversed because the trial court failed to specify a proper substantive basis for the fee award, relying only on a procedural rule.
The court reversed the attorneys' fees award because the trial court failed to specify a proper substantive basis for the award. Florida Rule of Appellate Procedure 9.400 is procedural and cannot alone support an award of attorneys' fees; a substantive basis such as a contract, statute, or other law must be provided. The court also held it had jurisdiction to review the entitlement order because fee awards do not become final and appealable until the amount is determined.
[1] An award of appellate attorneys' fees must be supported by a contractual, statutory, or other substantive basis, not merely a procedural rule.
[2] An unelaborated denial of a petition for writ of certiorari is not considered a denial on the merits for purposes of the law of the case doctrine.
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Join FLexlaw to unlock all legal intelligence“Unelaborated certiorari denials are not deemed denials on the merits.”
Establishes that the prior summary denial of certiorari was not a decision on the merits, so law of the case doctrine did not apply.
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Join FLexlaw to unlock all legal intelligenceJason Trauth and Luis Llamas had their driving privileges suspended after DUI arrests and refusal to consent to blood alcohol testing. They successful…
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PER CURIAM.
The State of Florida, Department of Highway Safety and Motor Vehicles (“the Department”), appeals an order awarding attorneys’ fees to Jason Trauth and Luis Llamas (“the drivers”). Because the order fails to specify a proper basis for the award, we reverse.
The drivers’ driving privileges were suspended after they were arrested for driving under the influence and refused to consent to blood alcohol level testing. They successfully challenged the suspensions in the circuit court, and were deemed entitled to appellate attorneys’ fees, solely on the basis of Florida Rule of Appellate Procedure 9.400.
The Department sought second-tier certiorari review in this Court. While this Court’s review was pending, the circuit court referred the case to the county court to determine the amount of the fees. The county court awarded the drivers $38,360 in fees. This Court later summarily denied certiorari. State, Dep’t of Highway Safety v. Trauth, 959 So. 2d 269 (Fla. 3d DCA 2007).
On appeal, the Department asserts that the trial court erred in awarding attorneys’ fees without making specific findings. The drivers contend the attorneys’ fees award should be affirmed for three reasons. First, they argue the law of the case doctrine compels dismissal of the appeal because this Court previously denied certiorari relief. Second, they claim this Court lacks jurisdiction because the county court awarded the fees. Finally, they contend the trial court properly awarded the fees. The drivers are incorrect on all grounds.
Turning first to the law of the case doctrine, the doctrine only applies when certiorari is denied on the merits. Unelaborated certiorari denials are not deemed denials on the merits. Topps v. State, 865 So. 2d 1253, 1258 (Fla.2004). Therefore, this Court’s prior summary unelaborated denial of the Department’s petition for writ of certiorari cannot be the “law of the case” regarding attorneys’ fees. Turning next to jurisdiction, the Department contests the circuit court’s entitlement order, rather than the amount the county court awarded. An attorneys’ fee award, however, does not become final, and therefore appealable, until the amount of fees is set. Chaiken v. Suchman, 694 So. 2d 115, 117 (Fla. 3d DCA 1997). Thus, the Department could not have appealed the circuit court’s decision until the county court set the fees. Accordingly, this Court has jurisdiction to review the circuit court’s entitlement order. Lastly, rule 9.400 “governs the procedure to be followed with respect to appellate entitlement to fees,” but it “is procedural rather than substantive.” Nationwide Mut. Ins. Co. v. Nu-Best Diagnostic Labs, Inc., 810 So. 2d 514, 515 (Fla. 5th DCA 2002). Therefore, rule 9.400 cannot be the basis for an award of attorneys’ fees. An award of appellate attorneys’ fees must be supported by a particular contractual, statutory, or other substantive basis. United Servs. Auto. Ass’n v. Phillips, 775 So. 2d 921 (Fla.2000). Because the circuit court appellate panel failed to state any basis for awarding attorneys’ fees, other than rule 9.400, the attorneys’ fee award cannot stand.
Accordingly, we reverse and remand for further proceedings consistent with this opinion.
Reversed and remanded.
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Cited By (12 total)
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Allstate Ins. Co. v. Jenkins, 32 So. 3d 163 (Fla. 5th DCA 2010)…over his claim for statutory fees is contingent upon future events occurring in the still pending bad faith litigation, the attorney’s fee award is not final, and thus, not reviewable. See State, Dept. of Highway Safety and Motor Vehicles v. Trauth, 971 So. 2d 906, 908 (Fla. 3d DCA 2007)(holding that an attorney’s fee award does not become final, and therefore appealable, until the amount of fees is set); Mills v. Martinez, 909 So. 2d 340, 342 (Fla. 5th DCA 2005)(explaining that an order determining entitleme…
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City OF Miami Beach v. Deutzman, 180 So. 3d 245 (Fla. 3d DCA 2015)…s for awarding attorneys’ fees. Nor did Respondent in his motion for fees. Without any basis for awarding the fees, the circuit court departed from the essential requirements of the law. See State, Dep’t of Highway Safety & Motor Vehicles v. Trauth, 971 So. 2d 906, 908 (Fla. 3d DCA 2007) (“An award of appellate attorneys’ fees must be supported by a particular contractual, statutory, or other substantive basis. Because the circuit court appellate panel failed to state any basis for awarding attorneys’ fees, o…
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Garcia v. Ileana Collazo, 178 So. 3d 429 (Fla. 3d DCA 2015)…ollowed with respect to appellate entitlement to fees, but the rule is procedural rather than substantive and therefore cannot serve as the basis for an award of appellate attorneys’ fees.. State, Dep’t of Highway. Safety & Motor Vehicles v. Trauth, 971 So. 2d 906, 908 (Fla. 3d DCA 2007). A party seeking attorney’s fees in an appellate court must provide substance and specify the particular contractual, statutory, or other substantive basis for an award of fees on appeal. United Servs. Auto. Ass’n v. Phillips…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Topps v. State, 865 So. 2d 1253 (Fla. 2004)
- United Servs. Auto. Ass'n v. Phillips, 775 So. 2d 921 (Fla. 2000)
- Filmore Chaiken and Robert T. Tenen v. Suchman, 694 So. 2d 115 (Fla. 3d DCA 1997)
- Nationwide Mut. Ins. Co. v. Nu-Best Diagnostic Labs, Inc., 810 So. 2d 514 (Fla. 5th DCA 2001)