The British rock sensation The Who recorded an inquisitive song Who Are You (Polydor 1978). It conveniently included the band name "who" about 150 times. The kids back then were enthralled with the hook that is the title of this post "Who are you, Who, Who, Who, Who?" As the song fades toward the final chorus, the inquiry becomes more pointed. That line was even more popular with the kids I knew, but I digress.
The appellate court recently rendered an interesting order in Villaverde v. Jorge Castillo, American Airlines and Sedgwick CMS, Case 1D2022-1804; L.T. No.: 12-023578MGK; (Fla. 1st DCA November 27, 2024). The case was originally decided in July 2024, but that decision was withdrawn following the appellant's motion for rehearing, though that motion was denied. On its own motion, the court substituted a new decision.
The original proceedings were before a JCC. Dissatisfied with the outcome, the claimant's former attorney in the trial proceedings files a notice of appeal seeking review. As the court succinctly described,
"In other words, Toni L. Villaverde, PLLC (Villaverde), identified itself as the appellant, in spite of the fact that it was not a party to the proceedings below."
That is a critical point. Before seeking relief on one's behalf one might aptly question "Who are you, Who, Who, Who, Who?" And if the answer to that question is not "a party," then your plea may have more complications than you might expect. Parties, you see, are those with an interest in a case, be it on the prosecution or the defense. Everyone else involved is ancillary, from the experts to the lay witnesses, lawyers, and the rest. There are parties and there is everyone else.
The former attorney in the trial proceedings before the JCC was seeking attorney fees. The:
"orders appealed established the costs and attorney’s fees to which Villaverde was entitled based on its lien of Castillo’s workers’ compensation claim."
Despite this interest in the outcome, that is, a pecuniary property interest in recompense, the court reminded:
"Villaverde is Castillo’s former attorney, not a party to the administrative proceeding."
And because the attorney was not a party to the "administrative proceeding," the court concluded, the attorney was "not a party here." The court directed attention to Fla. R. App. P. 9.020(g)(1), and the specific language there regarding "appellant":
"an appellant is '[a] party who seeks to invoke the appeal jurisdiction of the court[]'"
Concluding that the appellant was not a party, the court dismissed the appeal and declined to review the trial judge's conclusions and orders.
In a separate order in the same case, the court addressed an:
"original fee motion (that) sought reasonable fees under section 57.105, Florida Statutes, as sanctions against Appellant."
The order notes that there is a specific appellate rule of procedure regarding sanctions, Fla. R. App. P. 9.410. That rule is quoted in the order, as regards "the safe harbor provision of Florida Rule of Appellate Procedure 9.410(b)(3)–(4)," which the court reminds is mandatory ("Failure to comply with the safe harbor provision cannot be cured. See Fla. R. App. P. 9.410(b)(4)").
This is discussed from the perspective of procedure. The court describes method of seeking sanctions, dictated by the appellate rule. The rule uses "shall" and "must," and thus seems mandatory. However, there are no consequences dictated. Some might perhaps question whether these provisions are mandatory or merely directive, despite the seeming mandatory language. Nonetheless, the conclusion is seemingly of mandatory result here. See also The "Shall" in Workers' Compensation Referral (February 2021).
In addition to this procedural discussion, the court addresses a similar substantive point related to the first order (above). Just as there is importance in who one is and rule definition, there is importance in the plain statutory language of what a particular conflict is. The court concludes that:
"section 57.105 does not establish a path for attorneys’ fees in this case."
The substantive point as regards fees "under section 57.105(1)" is that this "statute applies only to civil proceedings—not administrative actions. See § 57.105(1), Fla. Stat." That conclusion as regards this statute and workers' compensation is not new. See Express and Direct Conflict (May 2019); see also Lane v. Workforce Business Services, Inc., 151 So. 3d 537 (Fla. 1st DCA 2014).
Thus, there are multiple lessons for the practitioner. There are important considerations of who you are, what kind of proceeding you are engaged in, and how you move forward. There are substantive statutory laws, plain procedural rules, and precedents that bear careful consideration and attention. For the scholar, there are perhaps significant points in these orders that bear study and contemplation in broader contexts.
