Marion County School Board v. Griffin

667 So. 2d 358, 1995 Fla. App. LEXIS 11990, 1995 WL 678117
CourtDistrict Court of Appeal of Florida
DecidedNovember 16, 1995
DocketNo. 93-3546
StatusPublished
Cited by1 cases

This text of 667 So. 2d 358 (Marion County School Board v. Griffin) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marion County School Board v. Griffin, 667 So. 2d 358, 1995 Fla. App. LEXIS 11990, 1995 WL 678117 (Fla. Ct. App. 1995).

Opinion

ZEHMER, Chief Judge.

Employer, Marion County School Board, and Carrier, Adjustco, appeal and Claimant, Robert Griffin, cross-appeals a workers’ compensation order that directs Employer and Carrier to pay Claimant’s attorney $19,079.62 as a reasonable attorney’s fee. Employer and Carrier raise three issues on appeal, and Claimant raises two issues on cross-appeal. [359]*359We affirm in part, reverse in part, and remand for further proceedings.

On January 22, 1981,1 Claimant, who worked for Employer as a teacher, fell while playing a basketball game with some students, injuring his right ankle and back. Employer and Carrier accepted compensability of Claimant’s right ankle injury and provided benefits relating to that injury, but did not initially accept compensability of his back injury. A few months after the accident, Claimant underwent back surgery and subsequently secured the services of an attorney to assert entitlement to benefits for the back injury by a May 1981 claim for benefits. After a hearing, the judge entered an August 21, 1981, order, finding that Claimant’s back injury was causally related to the industrial accident, ordering Employer and Carrier to pay temporary total (TTD) and temporary partial disability (TPD) benefits for certain periods, and ordering them to pay Claimant’s attorney’s fees and costs. After negotiations by the parties’ attorneys, Employer and Carrier agreed to pay Claimant’s attorney $1,920.38 in attorney’s fees, which amount was paid on December 29,1981.2 In January 1982, Claimant aggravated his back injury in an altercation with a student and was required to undergo a second operation. Employer and Carrier accepted this injury as compensable and provided Claimant with medical care and disability benefits. Between 1984 and 1990, Claimant filed other claims relating to the 1981 accident, some of which were denied and others granted.

On January 9, 1992, Claimant filed a claim seeking determination of the amount of costs, interim attorney’s fees, and interest due. After a hearing, during which Claimant argued that the December 1981 fee payment was an “interim fee,” the judge entered an order on June 4, 1992, finding that Claimant’s attorney is entitled to determination of the total amount of fees due in accordance with the August 1981 order, and that Employer and Carrier are entitled to credit for the “interim fee” paid in December 1981 pursuant to the parties’ agreement. The order reserved jurisdiction to determine the amount, if any, of additional fees due to Claimant’s attorney.3 After a final hearing, the judge entered an order on October 4, 1993, ordering Employer and Carrier to pay Claimant’s attorney $19,079.62 as a reasonable fee, and reserving jurisdiction to determine the amount of taxable costs due. This order finds that pursuant to the previous orders, Claimant’s attorney is entitled to additional fees from Employer and Carrier without having to prove any additional basis for entitlement over and above that established 10 years previously; that a reasonable fee should be $21,000 for all past and reasonably predictable future benefits, after taking into consideration all of the factors set forth in section 440.34, Florida Statutes; and that Employer and Carrier are entitled to an offset of $1,920.38 for the “interim fee” already paid.

Employer and Carrier argue that the judge erred in the October 1993 order by finding that Claimant’s attorney is entitled to additional fees on benefits secured after the 1981 hearing beyond the fees he previously accepted pursuant to the parties’ agreement. They contend that the June 1992 order contained no such finding, and, if the order had contained such a finding, it would have been erroneous because such finding would have been contrary to well established workers’ compensation law striking interim fee awards. They argue that the 1992 claim for [360]*360additional attorney’s fees was barred by Claimant’s failure to prosecute the entitlement issue at the 1984 hearing or in the 1988 and 1990 claims when the issue was ripe and mature. They argue that the doctrines of laches and estoppel preclude the claim for additional fees in excess of that paid in December 1981, especially since the 10-year delay in filing that claim resulted in undue prejudice to them because, had Claimant pursued that claim at the 1984 hearing, the total number of hours expended would have been lower; the customary hourly rate would have been lower; and the length of the professional relationship would have been shorter. Additionally, they maintain, because Claimant’s attorney accepted a fee without the judge’s approval and later silently accrued additional time on the file while waiting for the anticipated substantial fee, he should be barred from asserting his claim for additional fees due to “unclean hands.”

We conclude there is no error in the judge’s ruling that Claimant’s attorney was entitled to fees in addition to that paid pursuant to the parties’ agreement entered into after the 1981 hearing. Employer and Carrier correctly note that this court has held that a judge has no authority pursuant to section 440.34, Florida Statutes,4 to award an “interim” fee and then to reserve jurisdiction to award additional fees merely to take into account the continuing dispersal of benefits to a claimant, Samper v. W.B. Johnson Properties, Inc., 481 So.2d 88, 92 (Fla. 1st DCA 1986), or to determine and order installment annual payments on a fixed fee amount determined by the judge, What an Idea, Inc. v. Sitko, 505 So.2d 497 (Fla. 1st DCA), rev. denied, 513 So.2d 1064 (Fla.1987). Also, in absence of judicial approval, an agreement to award fees in such a manner has no force or effect against a party in these proceedings. Barr v. Pantry Pride, 518 So.2d 1309 (Fla. 1st DCA 1987), rev. denied, 525 So.2d 876 (Fla.1988). But despite the non-binding ef-feet of the agreement, where the evidence indicates that the payment made pursuant thereto was merely an installment payment on the total amount of fees due, the judge may take the amount paid pursuant to the agreement into consideration in determining the amount of fees due. Barr v. Pantry Pride, 518 So.2d at 1319. In this case, competent, substantial evidence supports the judge’s finding that the payment made pursuant to the agreement was intended as a partial payment of the total fee due to Claimant’s attorney for the benefits secured as a result of the 1981 hearing, representing only the benefits secured to the date of the 1981 hearing but not the reasonably predictable benefits flowing from the finding of compens-ability in 1981.5 Thus, while the lack of judicial approval of the parties’ agreement rendered the agreement without force and effect against Claimant, the judge properly could have taken into consideration the amount paid pursuant to the agreement in determining the total amount of fees due to Claimant’s attorney. The 1993 order on appeal indicates that the judge took that amount into consideration in this case by deducting the amount paid pursuant to the agreement from the amount of fees found to be due to Claimant’s attorney.

Employer and Carrier next contend that the fee awarded in this case ($21,000 including the amount paid in 1981) is excessive because the judge erroneously considered benefits actually provided and “time and labor” expended after the initial finding of compensability in 1981.

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Bluebook (online)
667 So. 2d 358, 1995 Fla. App. LEXIS 11990, 1995 WL 678117, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marion-county-school-board-v-griffin-fladistctapp-1995.