Orange County v. Hewlings

152 So. 3d 812, 2014 Fla. App. LEXIS 20155, 2014 WL 6990570
CourtDistrict Court of Appeal of Florida
DecidedDecember 12, 2014
DocketNo. 5D13-3775
StatusPublished
Cited by2 cases

This text of 152 So. 3d 812 (Orange County v. Hewlings) 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
Orange County v. Hewlings, 152 So. 3d 812, 2014 Fla. App. LEXIS 20155, 2014 WL 6990570 (Fla. Ct. App. 2014).

Opinion

TORPY, C.J.

We address this four-year-old, public records case for the second time. Appellant violated the public records law,1 a conclusion that it now admits, but only after the trial court rejected its arguments to the contrary. This appeal, like the first, involves only Appellee’s entitlement to attorney’s fees. We previously concluded that Appellant was responsible for the payment of Appellee’s attorney’s fees, conditioned only on one additional finding by the trial judge. Although the trial judge made that finding and Appellant advances no challenge to that finding, it nevertheless persists in arguing on appeal for the second time that there is no statutory authority for an award of fees for its violation of the public records law. Despite Appellant’s assertion that it is raising new issues, we conclude that it is simply attempting to re-argue what it unsuccessfully argued during the first appeal. We reject Appellant’s arguments once again and impose sanctions for the filing of a frivolous appeal.

Before addressing the merits of this appeal, we are constrained to address the question of our jurisdiction, because the order entered below determined only entitlement to attorney’s fees without setting the amount of those fees. Appellee raised this jurisdictional impediment in her answer brief,2 citing Ocean Club Community Ass’n v. Curtis, 934 So.2d 522, 523 (Fla. 3d DCA 2005). Rather than address this issue in its reply brief or otherwise, Appellant chose to ignore the jurisdictional issue and forge ahead with its appeal and request for oral argument. At oral argument, Appellant’s counsel cast the blame for this omission on Appellee, stating that [814]*814he ignored the argument because Appel-lee’s sole authority was a “PCA,” implying that the authority was of no legal significance. Apparently, Appellant’s counsel, who was admitted to the bar in 1977, is unaware of the distinction between a “PCA,” which is an appellate disposition that contains only one word, “Affirmed,” and an opinion of an appellate court that is written for the court, without an identified author, a “per curiam” opinion. The former has no precedential value, whereas the latter does. State Comm’n on Ethics v. Sullivan, 430 So.2d 928 (Fla. 1st DCA 1983). Here, the decision cited by Appel-lee was in the latter category. Besides, even superficial research on this point would have revealed a plethora of decisional law, all of which confirms this fundamental point. We expect lawyers to thoroughly research and address all of the issues that are presented, especially one as important as our jurisdiction.

While we conclude that we are lacking jurisdiction to address the propriety of the order determining entitlement to fees for the trial proceedings, we do have jurisdiction to address that part of the order that determines entitlement to appellate fees for the prior appeal. In the prior appeal, we held that the trial court erred in denying attorney’s fees to Appellee for the services of her attorney in the prior trial court proceeding. We remanded the case for further proceedings. Hewlings v. Orange Cnty., Fla., 87 So.3d 839, 841 (Fla. 5th DCA 2012) (“Hewlings I ”). In a separate order, we conditionally granted appellate fees, “contingent on the trial court finding that the County unreasonably delayed in complying with the document request.” The trial court made this finding on remand. As previously stated, Appellant does not challenge this finding of unreasonable delay. Instead, it makes other challenges to the trial court’s order. Although the form of challenge is a new appeal, we nevertheless have jurisdiction to consider the correctness of this order by treating the appeal as a motion to review the order pursuant to Florida Rule of Appellate Procedure 9.400(c). This rule provides that review of an “order” entered regarding attorney’s fees or costs on appeal should be addressed by motion. The rule does not specify that the “order” under review must be final.3 Accordingly, we treat this appeal as a motion for review under that rule and address the merits of the lower court’s order, insofar as it determined entitlement to appellate fees for the prior appeal. See Pellar v. Granger Asphalt Paving, Inc., 687 So.2d 282, 284 (Fla. 1st DCA 1997) (court may treat notice of appeal as motion for review under rule 9.400(c)).

The relevant facts of this case are spelled-out in Hewlings I. In a nutshell, Appellee sought records in connection with the investigation of her dog by the county’s animal control division. Appellee made simple, specific, and repetitive requests. After numerous exchanges of communications, Appellant said that it would arrange a time within fourteen days for Appellee to inspect the records and designate those for copying. It outlined a procedure under which Appellee was to inspect the records and designate those she wanted copied. In a facsimile trans[815]*815mittal delivered the very next day, Appel-lee made clear that she did not want to inspect the records; she wanted Appellant to provide copies of all of them. As she had previously done, she offered to pay the costs for the copies and asked for an invoice for the costs. After a period of two weeks without a response, Appellee filed a mandamus petition. In it, she claimed that Appellant had failed to comply with the public records law by not responding to her request for copies with either cost information or the copies themselves. Her prayer for relief was an order directing Appellant to “produce copies of the requested records.”

The trial court granted the petition, ordering Appellant to produce the records within forty-eight hours. Appellant complied with the order and did not challenge the order on appeal. Appellant nevertheless objected to an award of attorney’s fees, arguing that it was not statutorily obligated to pay fees, even though it had violated the public records law. The trial court agreed and denied the request for fees. Appellee appealed that order in Hewlings I.

In its answer brief in Hewlings I, Appellant argued that it was not obligated to pay fees because it never “refused” to comply with the request but simply did not “copy the records as quickly as [Appellee] wanted.” It further argued that, although it is obligated to furnish copies upon request and upon payment of costs, pursuant to section 119.07(4), Florida Statutes, a violation of that provision does not give rise to a claim for fees because the fee statute only authorizes fees when the agency fails to “permit a public record to be inspected and copied.” In other words, Appellant argued that it cannot be held responsible for payment of fees for refusal or delay in furnishing copies provided it “permits” the citizen requesting the record to personally inspect and personally copy the record herself, using her own camera or copy machine.

We rejected both arguments in Hewl-ings I. We held that an unreasonable delay in complying with a request was tantamount to a refusal to comply within the contemplation of section 119.12. Hewlings I, 87 So.3d at 841. Our conclusion was not unprecedented on this point. Office of State Attorney v. Gonzalez, 953 So.2d 759, 765 (Fla. 2d DCA 2007). Citing Woodard v. State, 885 So.2d 444, 445-46 (Fla. 4th DCA 2004), we also rejected Appellant’s second argument that it cannot be required to pay attorney’s fees when it fails to furnish copies.4. Hewlings I, 87 So.3d at 840.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

AFP 103 Corp. v. Common Wealth Trust Services, LLC, Etc.
District Court of Appeal of Florida, 2026
R.J. Reynolds Tobacco Co. v. Lewis
275 So. 3d 747 (District Court of Appeal of Florida, 2019)

Cite This Page — Counsel Stack

Bluebook (online)
152 So. 3d 812, 2014 Fla. App. LEXIS 20155, 2014 WL 6990570, Counsel Stack Legal Research, https://law.counselstack.com/opinion/orange-county-v-hewlings-fladistctapp-2014.