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Florida Justices: Attorney Fee Dispute Can Move Forward

September 1, 2022 | Posted in : Fee Dispute

A recent Law 360 story by Carolina Bolado, “Fla. Justices Allow Mintz Truppman To Pursue Fee Fight” reports that the Florida Supreme Court on Thursday reopened the way for Mintz Truppman PA to pursue a state court lawsuit against Lexington Insurance Co. and Cozen O'Connor over an attorney fee award, ruling that an intermediate appellate court improperly issued a writ prohibiting the suit.

The justices said the Third District Court of Appeal's decision barring a state court lawsuit — which sought damages based on claims that Lexington and Cozen O'Connor violated Florida's Mediation Confidentiality and Privilege Act by disclosing certain details from their mediation in federal litigation — was an improper use of the writ of prohibition because it was used to undo an action by the trial court in a matter within its subject matter jurisdiction.

"The Third District undid the trial court's exercise of jurisdiction in denying Lexington's and Cozen's motions to dismiss on the basis of an affirmative defense," the justices said in their opinion. "That matters because, were we to permit litigants to seek prohibition in every case in which a trial judge denies a motion to dismiss based on collateral estoppel, res judicata, or any other affirmative defense, the writ could be used to end-run our rules on appeals generally and interlocutory appeals in particular."

Justice John Couriel authored the decision, in which he was joined by five other justices. Justice Jorge Labarga concurred, though he declined to write a separate opinion.

The law firms and insurance company were fighting over a Third District decision that found that Mintz Truppman was essentially trying to augment a federal court's final ruling on an attorney fee award that came in well below its full request.

The Third District granted a writ of prohibition to Cozen O'Connor and Lexington, finding that the state circuit court lacks authority to hear Mintz Truppman's claims that Cozen O'Connor and Lexington violated Florida Statute 44.406, which provides for mandatory civil remedies against mediation participants who willfully disclose a mediation communication.

Mintz Truppman argued that the 44.406 claim is a new one separate from the federal court dispute, but Lexington's counsel argued that Mintz Truppman had deliberately ignored that claim in federal court because it wanted to take it to a different forum.

The dispute arose from Mintz Truppman's representation of Daphne Query in a 2014 suit against Lexington over a coverage claim for water damage caused by a broken pipe in her home. Query originally filed her suit in Miami-Dade County court, but Lexington, which was represented by Cozen O'Connor, removed the case to federal court.

The parties settled the property damage portion of Query's claim in June 2016 but were unable to reach a deal on attorney fees she was owed.

In her motion for attorney fees and costs, Query proposed a 2.0 contingency risk multiplier and sought a total award of about $828,000 for Mintz Truppman and Kramer Green Zuckerman Greene & Buchsbaum PA, the firm Mintz Truppman brought on as co-counsel when the case moved to federal court.

In October 2016, Cozen O'Connor filed Lexington's response, which argued for a fee award of $70,000 to $85,000. The response rebutted Query's assertion that she had obtained 100% of her property damage claim in their settlement, which was supported by an attachment of Mintz Truppman's premediation demand letter that the Third District said was not in the record but apparently showed Query had sought more than the $125,000 settlement amount.

Query did not move to strike Lexington's response or raise any mediation confidentiality objection with the federal court at the time, the Third District noted. However, in November 2016, Mintz Truppman filed the current suit in state court, raising its claims that Cozen O'Connor and Lexington violated mediation confidentiality.

The federal court ultimately entered a final judgment in March 2017 that found a fee multiplier was not warranted and awarded Query about $259,500 in attorney fees and costs, plus about $9,500 in prejudgment interest.

Neither party appealed the final judgment, and Lexington paid Query the property damage settlement and fee award amounts in full, the Third District said.

In their petition to the Third District for a writ of prohibition, Lexington and Cozen O'Connor conceded that a Florida circuit court would generally have jurisdiction to hear Mintz Truppman's mediation confidentiality claim, but they argued that the gravamen of the case was to recover additional attorney fees that Mintz Truppman claimed it was entitled to for its representation of Query in the federal case.

In April 2021, the appellate panel agreed, saying that Mintz Truppman "seeks to relitigate in state court a fee claim that the federal court determined with finality."