Attorneys' fees on appeal: misapplication of the law of the case doctrine raises procedural and substantive due process concerns.

• Author: Fleurantin, Larry R.

The aim of this article is to inform the reader and update practitioners about the misapplication of the law of the case doctrine that raises procedural and substantive due process concerns when appellate courts determine entitlement to appellate attorneys' fees without the benefit of a trial court record. The article briefly reviews the law of the case doctrine. Next, the authors examine some of the cases that apply the law of the case doctrine to proposals for settlements. Based on the current state of the law, it is critical for a party to avail oneself of the opportunity to challenge the legal sufficiency of a proposal for settlement at the proper time to avoid being bound by the law of the case.

The authors contend that an appellate court should not grant or deny entitlement to appellate fees (1) without the benefit of the trial court's ruling on the validity of a proposal for settlement or contractual agreement because entitlement may depend on the trial court's resolving factual issues. Thus, ruling on entitlement to appellate fees without the benefit of a developed trial court record raises procedural and substantive due process concerns. The authors conclude that if the appellate court decides to grant a motion for appellate fees in reviewing the final judgment, then the court should grant fees conditioned upon the trial's court finding that the proposal for settlement or contractual agreement is valid.

The Law of the Case Doctrine

The Florida Supreme Court's seminal case clarifying the law of the case doctrine is Florida Dept. of Transp. v. Juliano, 801 So. 2d 101, 105 (Fla. 2001). In Juliano, the court explained the doctrine as follows:

The doctrine of the law of the case 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. Under the law of the case doctrine, a trial court is bound to follow prior rulings of the appellate court as long as the facts on which such decision are based continue to be the facts of the case. Moreover, even as to those issues actually decided, the law of the case doctrine ... provides that an appellate court has the power to reconsider and correct an erroneous ruling that has become the law of the case where a prior ruling would result in a "manifest injustice." (2)

In Delta Property Management v. Profile Investments, Inc., 87 So. 3d 765 (Fla. 2012), the Florida Supreme Court was asked to resolve a conflict between a decision from the First District and its own decision in Juliano. Adhering to its prior decision in Juliano, the court concluded that the law of the case doctrine is inapplicable to a legal question that was not previously decided on appeal. (3)

Application of the Law of the Case Doctrine to Proposals for Settlement

Generally, when an appellate court has already determined that [section]768.79 of the offer of judgment statute is applicable and awarded appellate attorneys' fees to a prevailing party, the law of the case doctrine prevents a trial court from revisiting the issues of enforceability of the offer and entitlement to attorneys' fees. That was how the First District applied the law of the case doctrine in Crouch v. Public Service Commission, 993 So. 2d 148 (Fla. 1st DCA 2008). It is unclear in the opinion whether the offer of judgment statute applies in whistle-blower actions. What is clear is that the applicability of the offer of judgment statute has been determined through the law of the case doctrine when the court awarded appellate fees to the appellee. The First District found it unnecessary to apply the manifest injustice exception in Crouch, reasoning that the Florida Supreme Court reviewed Crouch and already determined that the offer of judgment statute was applicable and awarded appellate attorneys' fees to the appellee. (4)

Florida courts are reluctant to revisit a prior ruling finding a proposal for settlement enforceable unless enforcing the prior ruling through the law of the case will cause manifest injustice. The burden is on the complaining party to show that an exception applies, and that it is necessary to alter the law of the case, especially when the legal principles on which the ruling was made or the facts of the case are no longer the same.

One instructive case that deals with the complicated issues in enforcing a legally insufficient proposal for settlement through the law of the case doctrine is Specialty Restaurants Corp. v. Elliott, 924 So. 2d 834 (Fla. 2d DCA 2005). In that case, SRC filed a motion for appellate attorneys' fees and costs based on the proposal for settlement served on Elliott pursuant to [section]768.79 and Rule 1.442. (5) Although Elliott opposed the motion on the ground that the motion failed to state a substantive basis for entitlement, the response failed "to challenge the legal sufficiency of the proposal for settlement." (6) The appellate court affirmed the summary judgment, granted appellate fees to SRC based on the unchallenged...