A recent Law 360 story by Nathan Hale, “Fla. Tribe Wins Atty Fees in Malicious Prosecution Suit,” reports that the Miccosukee Tribe of Indians of Florida won its bid to collect attorney fees after fending off a malicious prosecution lawsuit from Miami law firm Lewis Tein PL, as a state appeals court found that the tribe had previously made a good-faith offer to settle the case.  The Third District overturned findings from the trial court that the tribe's offer, which the firm rejected, was made in bad faith because it was for a nominal amount and not made until nine months into the litigation.

"Here, the tribe had a well-founded, good faith, and legally correct belief that sovereign immunity divested the trial court of subject matter jurisdiction," the appeals court said in its opinion, adding, "Given these circumstances, the nominal offers had a reasonable foundation, namely the tribe's nominal exposure."

The tribe moved to recover attorney fees after successfully arguing that sovereign immunity shielded it from the damages claims brought by Lewis Tein and name partners Michael Tein and Guy Lewis.  The lawyers, who had served as outside counsel for the tribe, accused the Miccosukee of spending five years attempting to smear their reputations with a series of meritless lawsuits accusing them of participating in a purported embezzlement and kickback scheme with former tribal leaders, among other allegations.

The fees bid was based on state law that entitles a party to recover reasonable costs and fees if it has served a demand or offer for judgment that is rejected by the other side and it later obtains a judgment of at least 25% more than the amount rejected, according to the opinion.

The tribe offered to settle the case for $7,500 — $2,500 each to Lewis, Tein and their firm — shortly after the parties made oral arguments before the Third District on the tribe's appeal of the trial court's denial of its motion to dismiss.  About three months later, the appeals court dismissed the case on the grounds of sovereign immunity. Lewis Tein ultimately petitioned the U.S. Supreme Court but was denied review.  The tribe moved for fees in the state circuit court, but was denied based on the court's finding that it had made the settlement offer in bad faith.

In its opinion, the Third District also said that the trial court erred in finding the timing of the tribe's offer signaled bad faith.  It noted that the relevant law anticipates offers being made well after the inception of a case, specifying that potential awards should be for fees "incurred from the date the offer was served."  The judges also noted that the offers were made within time restrictions contained in the law and after a major event in the case.

"The tribe may well have left the oral argument believing the appellate court was persuaded by its arguments.  While we do not comment on the reliability of a prediction of the outcome of an appeal based on the discussion at oral argument, these circumstances do not support a finding that the timing of the offers reflected bad faith," the panel said.  The panel remanded the case to the trial court to determine the fees.

Attorney Curtis B. Miner of Colson Hicks Eidson PA, who is representing Lewis, Tein and their firm, lamented the decision Thursday, given the tribe's past conduct toward his clients, which resulted in millions of dollars in sanctions against the tribe and several of its attorneys.  "In its original opinion the Third District Court of Appeal stated that Lewis and Tein had to 'suffer from the squeeze' of the doctrine of tribal sovereign immunity, which left them with no recourse for the tribe's actions.  It is disappointing that, after all the Miccosukee Tribe has put Lewis and Tein through, that it would seek to have them suffer further through the imposition of attorney's fees," he told Law360.