ALEXANDER J. MILANICK, APPELLANT/CROSS-APPELLEE,
v.
CHARLES OSBORNE, APPELLEE/CROSS-APPELLANT

Fla. 5th DCA | 2009-04-17
No. 5D08-605
MONACO and COHEN, JJ., and KEST, S., Associate Judge, concur.
6 So. 3d 729 Florida District Court of Appeal, Fifth District (2009) Positive Treatment
Cited by 4 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.


Holding

The court held that the Administrative Law Judge did not abuse discretion in denying a continuance, and that the former mayor is entitled to attorney's fees for defending an ethics complaint at the administrative hearing but not for a related supreme court proceeding.


Headnotes

[1] A motion for continuance is addressed to the sound judicial discretion of an administrative law judge, and absent an abuse of that discretion, the decision will not be re…

[2] A party is entitled to an award of reasonable attorney's fees and costs incurred in defending against an ethics complaint, including fees and expenses incurred after the…

Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

Alexander Milanick appealed the denial of his motion for a continuance to retain counsel in an ethics complaint he filed against former mayor Charles …

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
PER CURIAM.

PER CURIAM.

ON MOTION FOR CLARIFICATION

We grant the Commission on Ethics’ motion for clarification and substitute the following in lieu of the original opinion.

Alexander J. Milanick appeals a final order awarding Charles Osborne, the former mayor of Beverly Beach, $77,234.43 in attorney’s fees and costs he incurred to defend against an ethics complaint Milan-ick filed against him.1 Milanick argues that the Administrative Law Judge (“ALJ”) abused its discretion in denying his motion for continuance to retain counsel. On cross-appeal, Osborne challenges the Commission’s denial of attorney’s fees and costs incurred in connection with the administrative hearing held September 28, 2007, and Milanick’s attempt to seek discretionary review with the Florida Supreme Court of this court’s decision in Osborne v. Commission on Ethics, 951 So.2d 25 (Fla. 5th DCA 2007).

A motion for continuance is addressed to the sound judicial discretion of the trial court and absent abuse of that discretion its decision will not be reversed on appeal. Fleming v. Fleming, 710 So.2d 601, 603 (Fla. 4th DCA 1998). The same discretion is vested in the ALJ. Fla. Admin. Code R. 28-106.210. Finding the ALJ did not abuse its discretion, we affirm the denial of Milanick’s motion for continuance.

Section 112.317(7), Florida Statutes (2007), entitles Osborne to an award of reasonable attorney’s fees and costs incurred in defending against the ethics complaint. This includes proving entitlement to and the amount of those costs and *731fees, including fees and expenses incurred after the administrative hearing. See Kaminsky v. Lieberman, 675 So.2d 261, 262 (Fla. 4th DCA 1996).

Osborne’s invoices for legal fees in exhibits 6 and 7 reflect services rendered in connection with the supreme court proceeding and the administrative hearing. We hold that Osborne is entitled to an award of attorney’s fees and costs incurred in connection with the September 28, 2007, hearing, including services rendered both during and after the hearing. Osborne is not entitled, however, to any fees or costs for services rendered in connection with the supreme court proceeding. Even where a fee award is mandatory, absent a mandate or determination by the appellate court that fees are appropriate, the lower tribunal has no jurisdiction to award the fees. Respiratory Care Servs., Inc. v. Murray D. Shear, P.A., 715 So.2d 1054, 1056 (Fla. 5th DCA 1998). Osborne did not request an award of fees incurred with respect to the supreme court proceedings. Accordingly, we reverse the Commission’s order to the extent it denied an award of fees and costs related to the administrative proceeding and affirm the denial of such fees for the supreme court proceeding.

To summarize, we affirm Milanick’s appeal, concluding that the ALJ did not abuse its discretion in denying his motion for a continuance to retain counsel. We affirm in part and reverse in part Osborne’s cross-appeal, denying his claim for attorney’s fees and costs relative to the supreme court proceeding, but approving an award of fees and costs rendered in connection with the September 28, 2007, administrative hearing. The Commission, upon remand, must determine which entries from exhibits 6 and 7 reflect services rendered with respect to the administrative proceeding and disregard entries that relate to the supreme court matter. Finally, this court grants Osborne’s motion for appellate attorney’s fees and remands the matter for the Commission to determine and assess a reasonable award for the appeal.

Upon remand, the Commission shall apply the approach described in Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985), to determine a reasonable award of attorney’s fees and costs. Further, in determining a reasonable award for appellate fees, the Commission shall not award appellate attorney’s fees based upon Osborne’s unsuccessful claim for fees attributable to the supreme court proceeding. See Imperial Terrace East Homeowner’s Ass’n, Inc. v. Grimes, 666 So.2d 276, 277 (Fla. 5th DCA 1996) (explaining that “a court may reduce an attorney’s fees award based upon the ‘results obtained’ if a ‘party prevails on a claim or claims for relief, but is unsuccessful on other unrelated claims’ ”) (quoting Rowe, 472 So.2d at 1151).

AFFIRMED in part, REVERSED in part, and REMANDED with directions.'

MONACO and COHEN, JJ., and KEST, S., Associate Judge, concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Unifirst Corp. v. City OF Jacksonville, 84 So. 3d 336 (Fla. 1st DCA 2011)
    …December 15, 2009) by order entered March 25, 2010. In the absence of even a motion for attorney’s fees in the supreme court, there is no basis for an award of attorney’s fees incurred in proceedings in the supreme court. See Milanick v. Osborne, 6 So. 3d 729, 731 (Fla. 5th DCA 2009) (holding Osborne not entitled to attorney’s fees incurred defending against Milanick’s attempt to obtain discretionary review of the Fifth District’s opinion in the supreme court where Osborne “did not request an award of fe…
  • Harris v. Dep't OF Revenue o/b/o Vanda Insixiengmay, 191 So. 3d 921 (Fla. 2d DCA 2016)
    …amily Servs., 88 So. 3d 975, 977 (Fla. 2d DCA 2012)). Trial courts enjoy broad discretion in ruling on motions for continuance. Neal v. Swaby, 975 So. 2d 431, 433 (Fla. 2d DCA 2007). “The same discretion is vested in the ALJ.” Milanick v. Osborne, ,6 So. 3d 729, 730 (Fla. 5th DCA 2009) (citing Fla. Admin. Code R. 28-106.210). “However, the exercise of that discretion is not absolute.” Neal, 975 So. 2d at 433. A reviewing court should consider the following factors when evaluating whether a trial 'court has…

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw