IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
CHRISTOPHER PARKER- NOT FINAL UNTIL TIME EXPIRES TO
CYRUS, FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Petitioner,
CASE NO. 1D14-1740
v.
JUSTICE ADMINISTRATIVE
COMMISSION,
Respondent.
_____________________________/
Opinion filed March 5, 2015.
Petition for Writ of Certiorari – Original Jurisdiction.
Christopher Parker-Cyrus of Law Office of Christopher Parker-Cyrus, Gainesville, for
Petitioner.
Pamela Jo Bondi, Attorney General, Tallahassee; Ana Cristina Martinez, General
Counsel, and Christian D. Lake, Assistant General Counsel, of The Justice
Administrative Commission, Tallahassee, for Respondent.
ROWE, J.
Petitioner raises two challenges to the trial court’s order limiting his attorney’s
fees award to double the statutory flat fee for representing an indigent defendant. First,
Petitioner argues that the trial court’s initial order departed from the essential
requirements of the law by failing to include findings as to the reasonableness of the
number of hours Petitioner expended in determining whether the fee award was
confiscatory. Second, Petitioner argues for the first time in his reply that the trial court’s
amended order departed from the essential requirements of the law because the court
failed to give a reasonable explanation for the amount of fees awarded. Because the
trial court in an amended order provided the parties with factual findings to support its
fee award and because Petitioner abandoned any challenge to those factual findings by
failing to raise any arguments attacking the amended order until his reply, we deny the
petition for writ of certiorari.
Petitioner was appointed to represent a defendant who was charged with false
imprisonment and armed home invasion robbery with a mask. Over a year after
Petitioner was appointed and just prior to jury selection, the prosecutor offered to amend
the information and nolle prosse the original charges if the defendant would agree to
plead no contest to a charge of accessory after the fact. The defendant accepted the
offer. Subsequently, Petitioner filed a motion for attorney’s fees pursuant to section
27.5304, Florida Statutes, seeking payment of $24,802.50 for the 330.7 hours he
expended representing the defendant. The Justice Administrative Commission (“the
JAC”) contested only $97.50 of the total as non-billable administrative work.
At the hearing on the motion, the trial court expressed concern that granting
Petitioner’s fee request would consume the Eighth Judicial Circuit’s entire budget for
paying private court-appointed counsel and asked if counsel wanted to defer seeking
fees until the beginning of the next fiscal year. Petitioner declined, electing to proceed
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with the hearing. Seven months later, on April 8, 2014, the trial court entered an order
awarding Petitioner $4,000.00 in attorney’s fees without making any factual findings.
One day later, the JAC filed a “Request for Written Findings in Relation to Order
Approving Payment of Attorney’s Fees.” In the request, the JAC reminded the trial
court of its obligation to make findings as to the reasonable number of hours expended
by Petitioner during the course of his representation before determining the
appropriateness of the fee. 1
Twelve days later, on April 21, 2014, Petitioner sought review in this Court of
the attorney’s fees award, arguing that the trial court departed from the essential
requirements of the law when it failed to determine whether the hours expended by
counsel were reasonable before it concluded whether the fee was confiscatory.
Petitioner asked this Court to quash the trial court’s order and “remand the case for
further proceedings to determine the reasonable number of hours worked on this case
and the appropriate reasonable fee.” The very next day, on April 22, 2014, the trial
court granted the JAC’s motion for written findings and entered an amended order
containing detailed findings regarding the reasonableness of the number of hours
expended by Petitioner on the case. Notwithstanding the fact that Petitioner was on
1
Appellate courts uniformly require circuit courts to make factual findings regarding
the reasonable number of hours expended by counsel when counsel seeks a fee award
in excess of the statutory rate pursuant to section 27.5304, Florida Statutes. See Watts
v. Justice Admin. Comm’n, 115 So. 3d 431 (Fla. 2d DCA 2013); Still v. Justice Admin.
Comm’n, 82 So. 3d 1168 (Fla. 4th DCA 2012); Zelman v. Justice Admin. Comm’n, 78
So. 3d 105 (Fla. 1st DCA 2012).
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notice a day after his petition was filed that the trial court had entered an amended order,
Petitioner never sought leave to amend his petition for writ of certiorari to address the
factual findings contained in the amended order. Instead, Petitioner waited to challenge
the trial court’s amended findings for the first time in his reply to the JAC’s response.
This was improper.
An argument may not be raised for the first time in a reply. Jones v. State, 966
So. 2d 319, 330 (Fla. 2007); Tillery v. Fla. Dep’t of Juvenile Justice, 104 So. 3d 1253,
1255-56 (Fla. 1st DCA 2013); United Auto. Ins. Co. v. Hollywood Injury Rehab. Ctr.,
27 So. 3d 743, 744 n. 1 (Fla. 4th DCA 2010) (noting that issues raised for the first time
in the reply during certiorari proceedings will not be considered); Fla. R. App. P.
9.210(d) (“The reply brief shall contain argument in response and rebuttal to argument
presented in the answer brief.”) In fact, a party abandons any issue that was not raised
in the initial petition. Hall v. State, 823 So. 2d 757, 763 (Fla. 2002); J.A.B. Enter. v.
Gibbons, 596 So. 2d 1247, 1250 (Fla. 4th DCA 1992) (“[A]n issue not raised in an
initial brief is deemed abandoned and may not be raised for the first time in a reply
brief.”). “Without strict adherence to this rule, the appellees are left unable to respond
in writing to new issues presented by the appellants, and the filing deadline imposed on
the appellants for their initial brief is rendered meaningless.” Snyder v. Volkswagen of
America, Inc., 574 So. 2d 1161, 1161-62 (Fla. 4th DCA 1991).
As noted by the dissent, this Court liberally allows parties to amend their
pleadings, but the burden should be on the parties to make such a request. See Ostrum
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v. Dep’t of Health & Rehab. Servs. of State of Fla., 663 So. 2d 1359, 1361 (Fla. 4th
DCA 1995) (discussing the traditional role of appellate judges as neutral decision-
makers rather than as advocates for a party). However, instead of requesting leave to
amend, Petitioner chose to wait until he filed his reply to challenge the trial court’s
amended order. Although the JAC addressed the amended final order in its response to
the petition, this does not mean that the JAC waived its right to respond to Petitioner’s
arguments nor its right to defend the amended order. Granting the petition for writ of
certiorari in this case would be a violation of due process because it would deprive the
JAC of the opportunity to respond to the new argument raised by Petitioner in the
reply. See Dep’t of Highway Safety & Motor Vehicles v. Dellacava, 100 So. 3d 234,
236 (Fla. 5th DCA 2012) (holding that the Department was denied due process when
the circuit court granted certiorari relief on an issue that was raised for the first time in
the petitioner’s reply). For these reasons, we decline to reach the merits of Petitioner’s
procedurally-barred arguments. See McAllister v. Breakers Seville Ass’n, Inc., 981 So.
2d 566, 575 (Fla. 4th DCA 2008) (declining to reach the merits of an argument that was
not raised until the reply brief). Finally, because the amended order cured the
deficiencies complained of in the petition for writ of certiorari, we hold that Petitioner
failed to meet his burden to demonstrate a departure from the essential requirements of
the law.
PETITION DENIED.
THOMAS, J., CONCURS; MAKAR, J., DISSENTING WITH OPINION.
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MAKAR, J., dissenting.
Attorney Christopher Parker-Cyrus claims the trial court erred by considering
the circuit court’s annual budget as a factor in determining the reasonableness of his
request for attorneys’ fees and then, after his petition in this Court was lodged, by
issuing an amended order that, although foreswearing reliance on the budget,
nonetheless departed from the essential requirements of the law.
As background, Parker-Cyrus was appointed to represent a defendant charged
with various felonies. After the representation concluded, Parker-Cyrus moved for
payment of his legal fees pursuant to section 27.5304(12), Florida Statutes, stating
that he worked 330.7 hours, which amounted to $24,802.50 at $75 per hour. As part
of the efforts, Parker-Cyrus hired a DNA expert and a private investigator, filed
approximately thirty motions and attended hearings, and took twenty-nine
depositions. His motion appended a record of hours billed, an expert witness
affidavit attesting to the reasonableness of his fees, and an objection letter from the
Justice Administrative Commission’s (JAC) that contested only $97.50, or 1.3 hours
at $75 per hour, as non-billable administrative work.
During the hearing on the fee motion, the trial court explained that if Parker-
Cyrus’s fee motion was granted, it would “essentially . . . consume the balance of
our legislative allocation for the entire fiscal year for this circuit . . . . So no one else
would be able to make a request.” Parker-Cyrus was given two options: proceed with
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the hearing or wait until the next fiscal year when the trial court could review the
new budget and determine how much money was available to allocate for the
lawyers. The following exchanged occurred at the hearing:
MR. PARKER-CYRUS: Yes, Judge. Are you stating you’ll be
considering not just the merits of the motion and the law that applies,
but also what amount you have that might be distributed otherwise?
THE COURT: Correct. Yes. I think I have to. I have a budget
constraint. It’s not one that I like. All right? I don’t, but I do, it’s a fact.
MR. PARKER-CYRUS: What it sounds like you’re saying, Judge, that
if I wait till next June, that even at that point—
THE COURT: You may get more money. You may get money—I don’t
know how much I would award now. I can’t answer that question. I’m
not going to prejudge your case. But it would be my intention that for
those that wait until next June, I would probably figure out the balance
of what I have in the budget and allocate all the funds that are
remaining, which may be more money, may be less money, I don’t
know. I’m sorry.
Parker-Cyrus chose to proceed with his fee request rather than wait.
Following the hearing, seven months passed before the trial court entered an
order finding that the case required extraordinary and unusual efforts by Parker-
Cyrus and an award above the statutory flat fee of $2,000, but not to exceed 200%
of that flat fee, was justified. The trial court awarded the statutory maximum: $4,000.
It also concluded that the award was not confiscatory, which prompted Parker-Cyrus
to file a petition for certiorari in this Court.
Before the JAC filed its response to the petition in this Court, the trial court
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entered an amended order finding that even though the hourly rate of $75 per hour
was reasonable, the number of hours expended was highly unreasonable. The trial
court explained that the case was not complex and thirty motions was highly
excessive. In addition, because Parker-Cyrus was experienced and highly skilled,
and the case did not go to trial, he should have expended far less time. The trial court
explained that the number of victim depositions justified the “extraordinary and
unusual” finding and was the basis for increasing the fee from $2,000 to $4,000. The
trial court also reduced the number of hours from 330.7 to 80, which resulted in an
effective hourly rate of $50 per hour, which has been held as a non-confiscatory
rate. See Watts v. Justice Admin. Comm’n, 115 So. 3d 431, 433 (Fla. 2d DCA 2013)
(granting defense counsel’s petition for certiorari because the hourly rate worked out
to be $37.40 and also because counsel “provided unrebutted evidence that twice the
statutory fee would be confiscatory based on his testimony that he invested more
than that in overhead and in time which was taken away from other clients on a time-
consuming case involving reluctant witnesses.”).
Before turning to the merits of the trial court’s order, the question of
jurisdiction over the amended order arises. Ordinarily, when a trial court enters an
amended or supplemental order that directly relates to an order pending certiorari
review in this Court, the petitioner should be afforded an opportunity to file an
amended petition that addresses the new order. That is because Rule 9.040(d),
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entitled “Amendment,” provides that “[a]t any time in the interest of justice, the
court may permit any part of the proceeding to be amended so that it may be disposed
of on the merits.” Fla. R. App. P. 9.040(d) (2015). The rule has been given liberal
application in this Court. See, e.g., Spence v. Tucker, 107 So. 3d 444, 445 (Fla. 1st
DCA 2012) (abuse of discretion to disallow amendment to petition for certiorari
simply because respondent “responded to appellant's mandamus petition before
appellant sought leave to amend”); Lovette v. McNeil, 8 So. 3d 411, 413 (Fla. 1st
DCA 2009) (error for trial court, acting in appellate capacity, to fail to address merits
of claims raised in amended petition). Unlike in Spence, Parker-Cyrus did not
request that he be given leave to file an amended petition, perhaps because the JAC
directly addressed both the initial and amended order in its responsive brief. While
it is much preferred that a petitioner formally request leave to file an amended
petition, no apparent prejudice arises where a respondent accedes to certiorari review
of an amended trial court order by addressing its merits and no party has raised an
objection. That is what occurred here. The JAC conceded the original order was
deficient for lack of factual findings, but contends the amended order should be
upheld. It notes that Parker-Cyrus has not filed an amended petition, but makes no
further argument that he should have done so. Perhaps formality would be served by
this Court issuing a show cause order why Parker-Cyrus should not be required to
submit an amended petition, and I would support allowing him to do so (the interests
9
of justice would not be served by disposing of the pending petition without leave to
amend and thereby avoiding the merits).
Turning to whether the trial court departed from the essential requirements of
law in fashioning its fee award, the starting point is section 27.5304(12), Florida
Statutes, which provides in pertinent part:
(d) If the chief judge or designee finds that counsel has proved by
competent and substantial evidence that the case required extraordinary
and unusual efforts, the chief judge or designee shall order the
compensation to be paid to the attorney at a percentage above the flat
fee rate, depending on the extent of the unusual and extraordinary effort
required. The percentage shall be only the rate necessary to ensure that
the fees paid are not confiscatory under common law. The percentage
may not exceed 200 percent of the established flat fee, absent a specific
finding that 200 percent of the flat fee in the case would be confiscatory.
If the chief judge or designee determines that 200 percent of the flat fee
would be confiscatory, he or she shall order the amount of
compensation using an hourly rate not to exceed $75 per hour for a
noncapital case and $100 per hour for a capital case.
This Court has noted that “trial courts have inherent power to depart from statutory
fee guidelines in extraordinary and unusual cases when necessary to ensure that
attorneys who represent indigent criminal defendants are not compensated in an
amount which is confiscatory of their time, energy, and talents.” Zelman v. Justice
Admin. Comm’n, 78 So. 3d 105, 107 (Fla. 1st DCA 2012) (citing Makemson v.
Martin Cnty., 491 So. 2d 1109 (Fla. 1986)). In Makemson, the Florida Supreme
Court stated that “[i]n order to safeguard that [criminal defendant]’s rights, it is our
duty to firmly and unhesitatingly resolve any conflicts between the treasury and
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fundamental constitutional rights in favor of the latter.” 491 So. 2d at 1113.
Based on this language, the trial court’s initial order—beyond failing to have
requisite factual findings—raises a yellow flag because of the trial court’s central
focus on budgetary concerns. Reversal would be required, but an amended order was
issued that specifically disclaimed the fee award was based on budgetary concerns.
Instead, the amended order focused upon the number of victim depositions and
contained the reasonableness findings for the number of hours expended.
Nonetheless, the amended order falls short under applicable caselaw.
In Zelman, which has parallels to this case, the trial court denied defense
counsel’s request for $17,280 in fees ($75/hr x 230.4 hrs) because it exceeded the
statutory maximum of $3,000. 78 So. 3d at 106. Defense counsel presented expert
testimony that the hours billed were reasonable and also that the “mere award of
double the flat rate” would be confiscatory because it resulted in an hourly rate of
$13.40. Id. The JAC objected to 6.1 hours, or $457.50. Id. The trial court entered an
order finding that the case required extraordinary and unusual effort, but that double
the statutory flat fee would not be confiscatory; instead, the “amount of
extraordinary and unusual effort required was limited.” Id. at 106. On review in this
Court, we agreed with defense counsel that the trial court erred by not following the
principles of White v. Board of County Commissioners of Pinellas County, 537 So.
2d 1376 (Fla. 1989), in which the trial court denied defense counsel’s request for
11
attorney’s fees in excess of the statutory maximum of $3,500. In White, counsel
expended at total of 134 reasonable and necessary hours over a period of 3 1/2
months. The supreme court granted review and quashed the Second District’s
decision denying the petition. In doing so, the supreme court explained that “[i]n
determining whether to exceed the statutory maximum fee cap, the focus should be
on the time expended by counsel and the impact upon the attorney’s availability to
serve other clients, not whether the case was factually complex.” 537 So. 2d at 1380.
After noting that the fee award equaled a fee of $26.12 per hour, the court concluded
that defense counsel suffered a double forfeiture in that “[n]ot only did he receive
token compensation for his efforts, but his private practice suffered as a result of his
service in this case.” Id.
The principles announced in Zelman and later in Watts, which are based
on White and Makemson, apply here. Parker-Cyrus stated in his motion that his work
on the case precluded him from taking other work at a higher hourly rate, and the
JAC only challenged 1.3 hours of the 330.7 hours billed—it did not dispute the
expert witness testimony that merely awarding double the statutory flat rate of
$4,000 would be confiscatory of Parker-Cyrus’ time because it would result in an
hourly rate of $12.10, assuming all 330.7 hours were paid. The trial court correctly
noted that it must “determine the reasonableness of the hours spent” but it
equivocated on the value of Parker-Cyrus’s evidentiary presentation, only a small
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portion of which was contested, by accepting it yet later rejecting it as “self-serving.”
In doing so, it made it appear that the $4,000 award was an amount that it “backed
into” by reducing both (a) the hourly rate (without explanation and even though it
found that $75 per hour was reasonable), and (b) the number of hours expended (a
number that appears arbitrarily selected). To illustrate this point, $4,000 divided by
the reasonable $75 hourly rate would result in 53.3 hours expended, a number wholly
unexplained in the record; and $4,000 divided by 330.7 hours would create a $12.10 2
hourly rate, a “token” amount under White and possibly confiscatory (given that
$13.40 per hour was considered confiscatory in Zelman).
Because the trial court departed from applicable caselaw, I would grant the
petition and remand for proceedings consistent with the principles contained therein.
2
$12.10 per hour assumes the 330.7 hours were expended, but if the court only
considered 329.4 hours, then the rate would increase marginally to $12.14 per
hour.
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