PERSONNEL BOARD OF THE CITY OF MIAMI BEACH, FLORIDA, APPELLANT,
v.
FRANCIS A. MAJEWSKI, APPELLEE
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The Personnel Board of Miami Beach appealed orders awarding attorney's fees and expert witness fees to a reinstated fireman, Francis Majewski. The court reversed the fee awards because the statutory provision authorizing them had been declared unconstitutional in an intervening appellate decision.
The court reversed the fee and cost awards because an unconstitutional statute cannot serve as the basis for awarding fees. Although the trial court applied the law as it existed when the ruling was entered, appellate courts must dispose of cases according to the law prevailing at the time of appellate disposition, not the law at the time of trial court judgment.
“We may not properly regard the final judgment which was the subject of our decision in the case reported at 212 So. 2d 888 as a determination of Majewski's right to an attorney's fee since in that judgment the circuit court did not rule on that right, rather the court reserved jurisdiction to consider Majewski's motion for the fee.”
Establishes that the fee entitlement was never finally decided in the prior appeal, so constitutional issues could be raised on the fee appeal.
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Join FLexlaw to unlock all legal intelligenceMajewski, a fireman for the City of Miami Beach, was demoted by the Personnel Board. He filed a petition for certiorari in circuit court, which quashe…
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These two appeals are respectively from (1) an order awarding an attorney’s fee for service rendered the appellee, Francis A. Majewski, before the Personnel Board of the City of Miami Beach, Florida, and before the circuit court; and (2) an order awarding incidental expert witness fees.
Francis A. Majewski is a fireman in the City of Miami Beach. He was demoted by the Personnel Board of that city. Conceiving that his demotion had been illegally accomplished, Majewski brought a petition for certiorari in the circuit court to review the action of the Board. The circuit court quashed the order of Board and directed that Majewski be reinstated. This court affirmed the judgment of the circuit court. See Personnel Board of City of Miami Beach v. Majewski, Fla.App.1968, 212 So.2d 888, filed July 9, 1968.
At the time Majewski filed his petition for certiorari in the circuit court, he filed with the petition a motion for attorney’s fees pursuant to Ch. 27735, Laws of Florida, Special Acts 1951. The cited section was an amendment to the act creating a civil service system for the employees of the City of Miami Beach. It provided for the assessment of attorneys fees for reinstated employees. The final judgment of the circuit court, which was appealed to this court and affirmed, provided that “the Court reserves jurisdiction of this cause to consider [Majewski’s] motion for reasonable attorneys’ fees and court costs.”
As we stated above, our decision on the appeal of the Personnel Board from the judgment reinstating Majewski was filed on July 9, 1968. The circuit court entered the orders now appealed from on January 9, 1969. On January 21 „ 1969, in Rubin v. Sandler, Fla.App.1969, 218 So.2d 177, this court held unconstitutional Ch. 27735, Laws of Florida, Special Act of 1951, under *500which the attorney’s fee and costs had been allowed.1
On this appeal the city challenges the fee awarded Majewski because the section under which it was awarded has been held unconstitutional. Majewski urges that this ground is not available to the appellant because the right to a fee has previously been determined by the final judgment which was appealed to this court and affirmed. We think the appellant’s position is the correct one. We may not properly regard the final judgment which was the subject of our decision in the case reported at 212 So.2d 888 as a determination of Majewski’s right to an attorney’s fee since in that judgment the circuit court did not rule on that right, rather the court reserved jurisdiction to consider Majewski’s motion for the fee.
It is clear from the opinion of this court in Personnel Board of City of Miami Beach v. Majewski, Fla.App. 1968, 212 So.2d 888, that the issue of the constitutionality of the section was not before this court. That issue has now been determined and since an unconstitutional statute may not be the basis for an award we must reverse the order allowing the fee and the costs incidental to the fee. The trial court in ruling on the motion for attorney’s fee applied the law as it existed on the day the ruling was entered (January 9, 1969). However, since
“ ‘ * * * an appellate court, in reviewing a judgment on direct appeal, will dispose of the case according to the law prevailing at the time of the appellate disposition, and not according to the law prevailing at the time of rendition of the judgment appealed.’ ” (Florida East Coast Railway Company v. Rouse, Fla. 1967, 194 So.2d 260, 262),
we must dispose of these appeals in accordance with the law as it prevails after our decision in Rubin v. Sandler, Fla.App.1969, 218 So.2d 177.
For the foregoing reasons we reverse the orders appealed from.
Reversed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Morris v. State, 261 So. 2d 563 (Fla. 2d DCA 1972)…2d 882. . See, e. g., Florida East Coast Railway Co. v. Rouse (Fla.1967), 194 So. 2d 260; Board of Public Instruction of Dade County v. McQuiston (Fla.App.1970), 233 So. 2d 168; and Personnel Board of City of Miami Beach v. Majewski (Fla.App.1969), 227 So. 2d 498. . See, Florida East Coast Railway Co. v. Rouse, id. . We assume that such a determination is now possible notwithstanding that such higher offense is “vague and uncertain.”…
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Weissman v. State Farm Mut. Auto. Ins. Co., 349 So. 2d 749 (Fla. 3d DCA 1977)…nstructed on the doctrine of assumption of risk, because we are required to apply the law as it exists at the time of the appellate decision and not as it may have existed at the time of the trial [Personnel Board of City of Miami Beach v. Majewski, 227 So. 2d 498 (Fla. 3d DCA 1969); Fitzgerald v. Addison, 287 So. 2d 151 (Fla. 2d DCA 1973)], the final judgment here under review be and the same is hereby reversed and the matter is returned to the trial court for a new trial. Reversed and remanded, with direct…
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The Bd. OF Pub. Instruction OF Dade Cnty. v. McQUISTON, 233 So. 2d 168 (Fla. 3d DCA 1970)…exists at the time of the appeal and not at the time of the institution of the proceedings in the trial court. Florida East Coast Railway Company v. Rouse, Fla.1966, 194 So. 2d 260; Personnel Board of City of Miami Beach v. Majewski, Fla.App. 1969, 227 So. 2d 498.…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fla. E. Coast Ry. Co. v. Rouse, 194 So. 2d 260 (Fla. 1966)
- Rubin v. Sanford, 218 So. 2d 177 (Fla. 3d DCA 1969)
- Pers. Bd. OF the City OF Miami Beach v. Majewski, 212 So. 2d 888 (Fla. 3d DCA 1968)