Mintz Truppman, P.A., etc. v. Cozen O'Connor, PLC ( 2022 )

Supreme Court of Florida
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No. SC20-1225
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MINTZ TRUPPMAN, P.A., etc.,
Petitioner,
vs.
COZEN O’CONNOR, PLC, et al.,
Respondents.
August 25, 2022
COURIEL, J.
The question in this case is whether the Third District Court of
Appeal in Cozen O’Connor, PLC v. Mintz Truppman, P.A., 306 So. 3d
259 (Fla. 3d DCA 2020), did the right thing when it issued a writ of
prohibition to prevent a circuit court from exercising jurisdiction
over claims that, one party says, the other party was collaterally
estopped from advancing.1 We decide that it did not.
1. We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.
I
Daphne Query had a pipe burst in her home, causing
substantial damage. She hired Mintz Truppman, P.A. (Mintz) to
represent her in a lawsuit against Lexington Insurance Company
(Lexington), which was represented by Cozen O’Connor, PLC
(Cozen). Lexington removed the case to the United States District
Court for the Southern District of Florida, and the parties decided
to settle. The judge overseeing the case approved the settlement
and “retain[ed] jurisdiction to enforce the terms of the settlement
and to determine the amount of attorneys’ fees.” Amended Final
Order of Dismissal at 1, Query v. Lexington Ins. Co., No. 15-21951
(S.D. Fla. July 1, 2016) (Amended Final Order of Dismissal). When
Query and Lexington could not settle their dispute about attorney’s
fees at mediation, they submitted it to the court for resolution.
Mintz argued that it was entitled to $828,056 in fees. As a
basis for this demand, the firm stated that Lexington agreed to pay
Query 100% of her losses from the property damage she sustained,
that is, $125,000.2 Lexington and Cozen denied that Query
2. That sure sounds like the kind of result only a lawyer could
love. Mintz calculated its request for attorney’s fees using the
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received 100 percent of what she demanded. To prove their point,
Lexington and Cozen filed Query’s initial settlement demand, which
had apparently asked for more,3 with the court—a fateful decision.
Two weeks later, Mintz filed this lawsuit in state court, arguing
essentially that Lexington and Cozen had violated the
confidentiality requirements applicable to the mediation by filing
“lodestar method”: “the number of hours reasonably expended . . .
multiplied by a reasonable hourly rate,” with the rate determined by
twelve factors, such as “the novelty and difficulty of the question”
and “the skill requisite to perform the legal service properly,” which
are listed in the American Bar Association’s Model Rules of
Professional Conduct, rule 1.5 (2021). See Fla. Patient’s Comp. Fund
v. Rowe, 472 So. 2d 1145, 1150 (Fla. 1985) (citing Fla. Code of Pro.
Resp. DR 2-106(b) (1977)); Hensley v. Eckerhart, 461 U.S. 424, 430
n.3 (1983) (citing Model Code of Pro. Resp. DR 2-106 (Am. Bar Ass’n
1980)). The firm said one lawyer did 285.6 hours of work at a rate
of $680 per hour, another did 36.1 hours at $250 per hour, another
did 175.4 hours at $575 per hour, and another did 191.2 hours at
$575 per hour—so, $414,028. Mintz asked the court to then
double that because, by representing Query in exchange for fees
contingent on the outcome of the case, it undertook significant risk.
See Fla. Patient’s Comp. Fund, 472 So. 2d at 1151 (“When the
prevailing party’s counsel is employed on a contingent fee basis, the
trial court must consider a contingency risk factor when awarding a
statutorily-directed reasonable attorney fee.”); see also Standard
Guar. Ins. Co. v. Quanstrom, 555 So. 2d 828, 834 (Fla. 1990) (“[I]f
the trial court determines that success was unlikely at the outset of
the case, it may apply a multiplier of 2.0 to 2.5.”).
3. How much, we cannot confidently say based on the record
before us.
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Query’s initial settlement demand. Lexington and Cozen each
moved to dismiss the case, and the circuit court denied the motions
without elaboration. Then Lexington and Cozen went to the Third
District Court of Appeal for relief: Cozen filed a petition for a writ of
prohibition or a writ of certiorari, which Lexington joined. They
argued that the circuit court had exceeded its jurisdiction when it
entertained an issue that had been pled by a party without
standing, 4 and had, anyway, already been resolved in federal
court—that is, Cozen’s collateral estoppel defense.5 Lexington
petitioned for a writ of certiorari,6 arguing that the circuit court
4. Cozen argued that Mintz was not a “party” to the Query-
Lexington mediation, so it did not have access to the remedies that
section 44.406 offers “part[ies]” for breaches of mediation
confidentiality. § 44.406(1), Fla. Stat. (“Any mediation participant
who knowingly and willfully discloses a mediation communication
in violation of s. 44.405 shall, upon application by any party to a
court of competent jurisdiction, be subject to remedies . . . .”
(emphasis added)).
5. Even though Mintz, in this state court litigation, invokes
questions of mediation confidentiality that it did not raise in federal
court, Cozen argues that the “gravamen of Mintz’s state court action
is to recover additional attorneys’ fees.” Cozen, 306 So. 3d at 263.
6. In Florida, the common law writ of certiorari allows circuit
courts and district courts of appeal to review nonfinal orders of
lower tribunals. Art. V, §§ 4(b)(3), 5(b), Fla. Const.; Fla. R. App. P.
9.030(b)(2), (c)(2). Appellate review is not available for most
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departed from the essential requirements of the law by refusing to
dismiss Mintz’s claims. Lexington, like Cozen, argued that Mintz
lacked standing to bring its claims, but it also said it was immune
to suit because it filed Query’s settlement demand during the
course of a judicial proceeding. See Levin, Middlebrooks, Mabie,
Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So. 2d 606,
608 (Fla. 1994) (“[W]e find that absolute immunity must be afforded
to any act occurring during the course of a judicial proceeding . . .
so long as the act has some relation to the proceeding.”).
The Third District agreed with Lexington and Cozen on the
collateral estoppel defense and dismissed all their other arguments
as moot. Cozen, 306 So. 3d at 263. The court explained it had
“little difficulty concluding that Lexington and Cozen [had]
established each of the four elements of collateral estoppel.” Id. at
nonfinal orders; writs of certiorari are thus an “extraordinary
remedy” and may be granted for review of a nonfinal order only
when the order, departing from the “essential requirements of law,”
will injure a party such as to leave “no adequate remedy on appeal.”
Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097, 1098-99 (Fla.
1987), superseded by statute on other grounds, § 768.72, Fla. Stat.
(2021).
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265. 7 Based on that conclusion, the Third District held that the
circuit court lacked jurisdiction to adjudicate Mintz’s claims, and it
issued a writ of prohibition to prevent the circuit court from
proceeding. Id.
Mintz appealed to this Court.
II
Prohibition is an extraordinary writ, extremely narrow in
scope, by which a superior court may prevent an inferior court from
exceeding its jurisdiction. English v. McCrary, 348 So. 2d 293, 296
(Fla. 1977); see also State ex rel. B. F. Goodrich Co. v. Trammell, 192
So. 175, 176 (Fla. 1939) (“[T]he writ of prohibition is that process by
which an inferior court is restrained by a superior court from
7. The Third District outlined the following four elements:
1) [T]he issue at stake is identical to the one involved in
the prior litigation; 2) the issue has been actually
litigated in the prior suit; 3) the determination of the
issue in the prior litigation was a critical and necessary
part of the judgment in that action; and 4) the party
against whom the earlier decision is asserted had a full
and fair opportunity to litigate the issue in the earlier
proceeding.
Cozen, 306 So. 3d at 264 (quoting Baxas Howell Mobley, Inc. v. BP
Oil Co., 630 So. 2d 207, 209 (Fla. 3d DCA 1993)).
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usurping jurisdiction over parties or subject matter with which it
has not been vested by law, or when action is threatened which
would be in excess of and beyond its jurisdiction.”).
We have consistently said that the purpose of the writ is to
prevent a court’s action beyond the scope of its jurisdiction, not to
correct an erroneous exercise of jurisdiction. See McCrary, 348 So.
2d at 296-97 (“It is preventive and not corrective in that it
commands the one to whom it is directed not to do the thing which
the supervisory court is informed the lower tribunal is about to do.
Its purpose is to prevent the doing of something, not to compel the
undoing of something already done.”); State ex rel. Sarasota Cnty. v.
Boyer, 360 So. 2d 388, 391-92 (Fla. 1978) (“Prohibition is
preventive and not corrective. It cannot be used to revoke an order
already entered.”) (footnote omitted); State ex rel. R. C. Motor Lines,
Inc. v. Boyd, 114 So. 2d 169, 170 (Fla. 1959) (“We have several
times announced that prohibition is a preventive rather than a
corrective remedy. . . . The very name of the writ suggests its
proper use. It is used to prohibit the doing of something, rather
than to compel the undoing of something already done.”); State ex
rel. Jennings v. Frederick, 189 So. 1, 3 (Fla. 1939) (“It appears well
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settled that, ‘Another distinguishing feature of the writ is that it is a
preventive rather than a corrective remedy, and it issues only to
prevent the commission of a future act, and not to undo an act
already performed.’ ” (citing James L. High, A Treatise on
Extraordinary Legal Remedies, Embracing Mandamus, Quo
Warranto, and Prohibition § 766 (3d ed. 1896))).
That is not how the writ of prohibition was used here. 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. 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, 8 the writ could be used to
end-run our rules on appeals generally and interlocutory appeals in
particular. Florida’s district courts may review only those
8. “An affirmative defense is a defense which admits the cause
of action, but avoids liability, in whole or in part, by alleging an
excuse, justification, or other matter negating or limiting liability.”
State Farm Mut. Auto. Ins. Co. v. Curran, 135 So. 3d 1071, 1079
(Fla. 2014) (quoting St. Paul Mercury Ins. Co. v. Coucher, 837 So. 2d
483, 487 (Fla. 5th DCA 2002)).
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interlocutory orders allowed by the rules of this Court. Art. V, §
4(b)(1), Fla. Const. We have found only some categories of nonfinal
orders, such as those concerning venue or personal jurisdiction,
appropriate for interlocutory appeal. Fla. R. App. P. 9.130. Here,
rule 9.130 would likely bar interlocutory appeal of the circuit
court’s nonfinal order denying Lexington’s and Cozen’s motion to
dismiss. See Bd. of Cnty. Commr’s of Madison Cnty. v. Grice, 438
So. 2d 392, 394 (Fla. 1983) (“An order on a motion to dismiss may
not be final, but an order which actually dismisses the complaint
is.” (citing Gries Inv. Co. v. Chelton, 388 So. 2d 1281, 1282 (Fla. 3d
DCA 1980) (“An order granting a motion to dismiss is not final and
not appealable.”))).
In the cases where we have found a writ of prohibition to be an
appropriate remedy, it has not been deployed to reverse a trial
court’s order on the merits of a case on the basis of an affirmative
defense. We have found it properly issued where a court has
proposed to act in excess of its subject matter jurisdiction. For
example, in Nicoll v. Baker, 668 So. 2d 989 (Fla. 1996), we found
that the Second District Court of Appeal was right to issue the writ
where a claim for alimony was not cognizable under the Uniform
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Reciprocal Enforcement of Support Act, section 88.031, Florida
Statutes (1993), and thus the circuit court lacked jurisdiction to
enforce it. 668 So. 2d at 989.
Similarly, in State ex rel. McKenzie v. Willis, 310 So. 2d 1 (Fla.
1975), we held that a writ of prohibition was properly issued to
protect the Florida Public Service Commission’s “judicial or quasi-
judicial powers” as provided by statute from an action in circuit
court—again, addressing a matter of limited subject matter
jurisdiction. Id. at 3 (“The controversies involved in the two suits
are resolvable by the Commission within its jurisdiction subject to
review by the Supreme Court. They do not lie within the
jurisdiction of the Circuit Courts.”).
The Third District’s issuance of the writ here is different; it is
closer to what we described in McCrary as an order “to compel the
undoing of something already done” by the trial court in the
exercise of a matter within its subject matter jurisdiction. 348 So.
2d at 297. The fact that it comes to us on review of the denial of a
motion to dismiss is not alone dispositive—Nicoll did, too. Nicoll,
668 So. 2d at 989. That procedural reality, plus the fact that the
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writ was used here to revisit the trial court’s weighing of an
affirmative defense, made its issuance improper.
III
We therefore quash the decision below and remand to the
Third District with instructions to deny Lexington’s and Cozen’s
claims for a writ of prohibition and adjudicate the arguments for
certiorari that it previously declared moot.
It is so ordered.
MUÑIZ, C.J., and CANADY, POLSTON, LAWSON, and
GROSSHANS, JJ., concur.
LABARGA, J., concurs in result.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.
Application for Review of the Decision of the District Court of Appeal
Direct Conflict of Decisions
Third District – Case Nos. 3D18-1975 and 3D18-1976
(Miami-Dade County)
Timothy H. Crutchfield of Mintz Truppman, P.A., North Miami,
Florida,
for Petitioner
Charles C. Kline and Reid Kline of Cozen O’Connor, Miami, Florida,
for Respondents Cozen O’Connor, P.C. and John David
Dickenson
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Thomas E. Scott and Alexandra Valdes of Cole Scott & Kissane,
P.A., Miami, Florida,
for Respondent Lexington Insurance Company
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