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FLORIDA
APPELLATE COURT REVERSES FEE AWARD AGAINST TRUSTEES:
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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