Theodore Ryan v. City of Boynton Beach, etc., and Frank Janots

157 So. 3d 417, 2015 Fla. App. LEXIS 1428, 2015 WL 444440
CourtDistrict Court of Appeal of Florida
DecidedFebruary 4, 2015
Docket4D13-3167
StatusPublished
Cited by2 cases

This text of 157 So. 3d 417 (Theodore Ryan v. City of Boynton Beach, etc., and Frank Janots) 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
Theodore Ryan v. City of Boynton Beach, etc., and Frank Janots, 157 So. 3d 417, 2015 Fla. App. LEXIS 1428, 2015 WL 444440 (Fla. Ct. App. 2015).

Opinion

STEVENSON, J.

This case has its genesis in eminent domain proceedings initiated by the City of Boynton Beach against Theodore Ryan. Presently, appellant Ryan alleges error in the denial of his motion seeking the award of both the attorney’s fees incurred in connection with a prior appeal and the trial level fees incurred in connection with litigating the parties’ competing motions for disbursement of the funds being held in the court’s registry. We reverse the order appealed and remand for further proceedings consistent with this opinion.

Ryan owned two parcels of property in Boynton Beach: his home (parcel 1) and a *419 vacant lot (parcel 2). In 1998, the City recorded two orders imposing fines for code violations originating on parcel 1, resulting in liens attaching to all real and personal property owned by Ryan, which included parcel 2. In 2008, the City initiated eminent domain proceedings with respect to parcel 2, which resulted in the entry of an order of taking and a final consent judgment in the amount of $99,000. The court reserved jurisdiction to determine the rights of Ryan, lienhold-ers, and other claimants “in respect to the compensation for the parcel,” and the City paid the $99,000 into the court’s registry. Ryan was awarded the attorney’s fees he incurred in connection with defending the eminent domain proceedings. The fee award resulted in an appeal by the City, see City of Boynton Beach v. Janots, 929 So.2d 1099 (Fla. 4th DCA 2006) <?Janots I ”), and Ryan was also awarded the fees he incurred in connection -with that appeal.

Some years later, in August of 2010, Ryan filed a motion seeking disbursement of the $99,000 still held in the court’s registry. In turn, the City filed its own motion, asserting it was entitled to withdraw the funds to satisfy’ its earlier-recorded code enforcement liens. The trial court denied the City’s motion, finding it had failed to file a “petition” or independent action as required by chapter 162, Florida Statutes, which governs enforcement of liens. The City appealed. This court reversed, finding “the City did not have to file a separate action to enforce its code enforcement liens against Parcel 2 and the trial court should have adjudicated the City’s lien claims under the authority of section 73.101,” and remanded for further proceedings. City of Boynton Beach v. Janots, 101 So.3d 864, 867 (Fla. 4th DCA 2012) (“Janots II ”). By order dated October 10, 2012, this court granted Ryan’s motion for appellate fees, directing the trial court to “consider the result obtained on appeal in setting the amount of fees.”

Following the appeal in Janots II, Ryan filed a motion in the trial court, asking the trial court to award him both the attorney’s fees incurred in connection with the appeal and the trial level fees incurred in connection with the parties’ motions for disbursement of the funds in the court’s registry. The trial court denied Ryan’s motion in its entirety and that ruling gave rise to the instant appeal.

Appellate Fees Incurred in Connection with Janots II

A party’s entitlement to the award of appellate fees is a matter for the appellate court, not the trial court, although the amount of fees is generally determined by the trial court. See, e.g., In re Estate of Udell, 501 So.2d 1286, 1288 (Fla. 4th DCA 1986). This court’s October 10, 2012 order granted Ryan’s motion for appellate fees and resolved the matter of Ryan’s entitlement to the fees incurred in connection with the appeal in Janots II in Ryan’s favor. This court’s ruling on Ryan’s entitlement to these appellate fees became the law of the case, and the trial court was not thereafter free to revisit the issue. See State v. McBride, 848 So.2d 287, 289-90 (Fla.2003) (stating law of the case doctrine “requires that ‘questions of law actually decided on appeal must govern the case in the same court and the trial court, through all subsequent stages of the proceedings’ ”) (quoting Fla. Dep’t of Transp. v. Juliano, 801 So.2d 101, 105 (Fla.2001)); McPherson v. Bittner, 126 So.3d 1230 (Fla. 4th DCA 2012) (applying law of the case doctrine to appellate court’s granting of motion for appellate fees); Fla. Diversified Films, Inc. v. Simon Roofing & Sheet Metal Corp., 118 So.3d 240 (Fla. 3d DCA 2013) (same). Thus, the trial court could not properly deny Ryan’s motion for appellate fees by *420 finding Ryan was not entitled to fees because the “appeal over how to obtain such funds ... [was] not directly related to the condemnation proceedings.”

Alternatively, the trial court found that Ryan’s motion for appellate fees was properly denied as the appellate court had mandated consideration of the result obtained on appeal and a zero award was reasonable “[s]ince Ryan did not prevail on appeal.” This rationale, though, is contrary to the governing fee statute. The award of appellate attorney’s fees in eminent domain proceedings is governed by section 73.131, Florida Statutes. The statute requires that the petitioner “pay all reasonable costs of the proceedings in the appellate court, including a reasonable attorney’s fee to be assessed by that court, except upon an appeal taken by a defendant in which the judgment of the lower court shall be affirmed.” § 73.131(2), Fla. Stat. There- are appellate decisions permitting consideration of the result obtained on appeal in setting the amount of appellate fees to be awarded. See Seminole Cnty. v. Boyle Inv. Co., 724 So.2d 645 (Fla. 5th DCA 1999); Lee Cnty. v. Tohari, 582 So.2d 104,105 n. 1 (Fla. 2d DCA 1991). Nonetheless, consistent with the language of section 73.131, the Florida Supreme Court has squarely held that a landowner cannot be denied his appellate attorney’s fees simply because he was not the prevailing party in the appeal. See Denmark v. State Dep’t of Transp., 389 So.2d 201, 201 (Fla.1980); State Rd. Dep’t v. Levato, 199 So.2d 714 (Fla.1967). Thus, while the trial court would have acted within the bounds of its discretion and this court’s order by awarding an amount less than that sought by Ryan, the zero award went too far, effectively converting section 73.131 to a prevailing party fee statute.

Trial Level Fees Incurred in Connection with Motions for Disbursement

Florida Statutes section 73.092(2) governs the award of fees incurred in the trial court, providing for the assessment of fees “incurred in defeating an order of taking, or for apportionment, or other supplemental proceedings, when not otherwise provided for.” Courts interpreting the statute have limited eminent domain fee awards to those fees incurred in resolving claims that arise as a direct result of the eminent domain proceedings. See State, Dep’t of Transp. v. Skidmore, 720 So.2d 1125, 1129-30 (Fla. 4th DCA 1998) (holding attorney’s fees incurred regarding claim that portion of the land that was the subject of the taking was illegally-filled sovereign submerged lands should not have been included in fee award as such issue was “merely incidental to” eminent domain proceeding) (citing Terry v. Conway Land, Inc., 508 So.2d 401, 406 (Fla. 5th DCA 1987), approved, 542 So.2d 362 (Fla.1989)); Seminole Cnty. v. Butler,

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157 So. 3d 417, 2015 Fla. App. LEXIS 1428, 2015 WL 444440, Counsel Stack Legal Research, https://law.counselstack.com/opinion/theodore-ryan-v-city-of-boynton-beach-etc-and-frank-janots-fladistctapp-2015.