4/26/19- Miami- The Third District Court of Appeal, State of Florida, has a new building. Photo: J. Albert Diaz/ALM Third District Court of Appeal, State of Florida, has a new building. Photo: J. Albert Diaz/ALM

The chief judge of a Florida appellate court has found a panel with Miami-Dade Circuit Court’s appellate division erred in denying a Homestead physical therapy clinic’s motion for attorney fees against its former lawyer.

Third District Court of Appeal Chief Judge Kevin Emas wrote in an opinion issued Wednesday that the lower court inappropriately applied the law of the case doctrine — the rule binding trial courts to the decisions of appellate courts in legal proceedings — by not enforcing Florida Wellness & Rehabilitation Center Inc.’s motion for appellate attorney fees against Miami litigator Mark Feldman. The appeals panel held the circuit court incorrectly cited the Third DCA’s denial of a separate appeal by the rehabilitation center concerning attorney fees in justifying their ruling.

“[The Third DCA] denied the center’s motion for appellate attorney’s fees as a sanction. … However, we conditionally granted the motion for appellate attorney’s fees based on the offer of judgment statute,” the opinion said.

Feldman’s subsequent motion for clarification from the appellate court on its order partially granting and partially denying FW&RC’s motion for attorney fees was denied. Following the ruling, it fell on the trial court to determine the amount to be awarded to the physical therapy clinic by Feldman. According to the opinion, the attorney argued the Third DCA’s “denial of the fees-as-a-sanction motion in the certiorari proceedings constitutes the law of the case on the center’s entitlement to appellate attorney’s fees as a sanction,” preventing the lower court from proceeding further with regards to awarding fees. The FW&RC entered an appeal with the Third DCA after the trial court and the circuit court’s appellate division both denied its motion to enforce the prior award for attorney fees.

Emas said the central question of the case “is whether certiorari relief is warranted when the circuit court’s decision not to enforce its own mandate on an order awarding fees … is premised upon an incorrect application of the law of the case doctrine, or whether such action constitutes mere legal error, not subject to relief by second-tier certiorari.”

“If the failure to award nondiscretionary attorney’s fees constitutes a departure from the essential requirements of law for purposes of second-tier certiorari, it necessarily follows that the court’s failure to enforce its own mandate on an order awarding attorney’s fees must likewise constitute such a departure,” he said. The chief judge concluded the denial of FW&RC’s motion invalidated previous orders by the circuit court as well as the Third DCA, adding the appellate court’s ruling regarding the center’s motion for fees as a sanction did not “relieve the county court of its obligation, on remand, to enforce the circuit court’s mandate to determine the amount of attorney’s fees to be imposed.”

Read the appellate court’s order:

“We therefore grant the petition and quash the order of the circuit court, in its appellate capacity, denying the Center’s motion to enforce [the] mandate,” the opinion said, remanding the case to the circuit court for further proceedings.

FW&RC’s legal counsel, Miami attorney Ricardo Banciella, noted the ongoing nature of the case and declined to offer a statement on the appellate court’s ruling in an email to the Daily Business Review. Feldman did not respond to requests for comment by press time.

The ongoing legal battle between the two parties stems from Feldman’s filing of a charging lien against the FW&RC in Miami-Dade County Court. Feldman filed the lien after he’d been dismissed as the physical therapy’s attorney in a personal injury protection lawsuit brought against United Automobile Insurance Co. The case was later settled and voluntarily dismissed from the Southern District of Florida.


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