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Cypen & Cypen
MARCH 6, 2003

Stephen H. Cypen, Esq., Editor

Never Forget - September 11, 2001


George Mamak, a police officer employed by the City of Palm Beach Gardens, applied for service-connected disability. Although his application was denied at the informal stage, the Board of Trustees ultimately granted his disability pension. Mamak had entered into a fee arrangement with attorney Beers. But Mamak refused to pay Beers, who then sued him for the agreed-upon fee. In defense, Mamak counterclaimed that Beers had breached the fee agreement by failing to seek attorney’s fees from the Board. (This latter claim is passing strange, since Beers had written to the Board claiming an entitlement to attorney’s fees, which the Board denied.) Meanwhile, back at the lawsuit, the trial court ordered Mamak to pay Beers a substantial fee, purportedly in accordance with the agreement (which was partially contingent). Then, somehow when the case should have been over, the trial court allowed Mamak to amend his counterclaim to seek recovery of fees from the Board. The trial court found as a matter of law that the Board was liable for Mamak’s fees under section 185.40, Florida Statutes, now appearing as section 185.05(5), Florida Statutes: “In any judicial proceeding or administrative proceeding under chapter 120 brought under or pursuant to the provisions of this chapter, the prevailing party shall be entitled to recover the costs thereof, together with reasonable attorney’s fees.” On appeal by the Board to the Fourth District court of Appeal, the court framed the question as “Whether the proceeding before the Board was a ‘judicial proceeding’ which, if it were, would entitle Mamak to recover his fees and costs.” Mamak and Beers both acknowledged that the proceeding before the Board was not a judicial proceeding. They contended, however, that the hearing before the Board was “quasi-judicial,” and therefore the statute should be construed to include the hearing before the Board. The appellate court disagreed, and reversed. A plain reading of the statute indicates that the prevailing party in any judicial proceeding under chapter 185, Florida Statutes, is entitled to attorney’s fees and costs. Had the legislature intended to include “quasi-judicial” proceedings, it could easily have done so. The court went on to hold that the plain meaning of “judicial proceeding” does not include proceedings before the Board. Significantly, by separate order, the court awarded the Pension Board its attorney’s fees pursuant to the same statute, “conditioned on the trial court determining that appellant [Board] is the prevailing party.” This latter caveat makes no sense to us, in that there is seemingly no way to determine that the Board did not prevail. Palm Beach Gardens Police Pension Fund Board of Trustees v. Mitchell J. Beers, P.A., Case Nos. 4D01-4059, 4D01-4100 and 4D02-1945 (Fla. 4th DCA, March 5, 2003). We are pleased to have represented seven of our regular-pension board clients as “friends-of-the-court” in this case

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