Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: EMPLOYMENT – essential requirements of law - Florida Statutes, section 57.105 – Court cannot conclude that City’s interpretation that its Code precluded it from awarding fees and costs to Petitioner is a departure from the essential requirements of law – assuming City concluded that it did have authority to award fees and costs, Petitioner is precluded from seeking fees pursuant to 57.105 as Petitioner failed to follow the procedure set forth in subsection (4) – Petition denied.  Patterson  v. City of St. Petersburg, Appeal No. 05-0066AP-88A (Fla. 6th Cir. App. Ct. May 30, 2006). 









vs.                                                                                                Appeal No. 05-0066AP-88A








            THIS CAUSE came before the Court on the Petition for Writ of Certiorari, the Response, and the Reply.  Upon consideration of the same and being otherwise fully advised, the Court finds that the Petition must be denied as set forth below.

            The Petitioner, Elmer Daniel Patterson (Patterson), seeks review of the Order, entered July 25, 2005, in which the Civil Service Board of the City of St. Petersburg (Board) held that it did not have the authority to grant Patterson’s Motion to Tax Costs and Attorney’s Fees Under Florida Statute 57.105(1).  In reviewing the administrative action taken by the Board, this Court must determine whether Patterson was afforded procedural due process, whether the essential requirements of law were observed, and whether the Board’s findings and judgment are supported by competent substantial evidence.  See Haines City Community Development v. Heggs, 658 So.2d 523, 530 (Fla. 1995)(setting forth the standard of certiorari review of administrative action). 

            This is the second time this matter is before this Court.  In April 2001, Patterson filed a Petition for Writ of Certiorari seeking review of his termination from the City of St. Petersburg.  In the Order Granting Amended Petition for Writ of Certiorari, entered November 8, 2001, this Court (albeit a different judge) ruled that Patterson had been wrongfully terminated and ordered that Patterson be reinstated to his former position, or its equivalent, with back pay.  The Order also specifically stated:  “ORDERED AND ADJUDGED that the Petitioner’s Motion for Costs is denied.  The Petitioner may file its Motion for Costs with the lower tribunal.”  The City filed a Petition for Writ of Certiorari with the Second District Court of Appeal, which was denied without an opinion.  On November 13, 2002, the Circuit Court issued its Mandate.  Patterson provided the City with a statement of his costs and the City paid the costs in their entirety.

            On May 12, 2003, six months after the Mandate was issued, Patterson filed with the Board a Motion to Tax Costs and Attorney’s Fees Under Florida Statute Section 57.105(1).  In response, the City advised the Petitioner that neither the City Charter nor the City Code granted the Board the authority to award costs, damages, or attorney’s fees and reminded Patterson that costs had already been paid.  On August 13, 2003, Patterson filed a Petition for Writ of Mandamus in the trial court, wherein Patterson asked the trial court to direct the Board to convene to consider his Motion.  The trial court ruled that the Board should convene to consider the Motion.  The trial court clarified that the Board needed to determine the viability of the motion, whether the motion was timely filed, whether the Board had jurisdiction, and, if so, whether Patterson was entitled to anything.  The trial court granted the Petition for Writ of Mandamus, directing the Board to “timely convene and hold a hearing to consider Petitioner’s Motion for Attorney’s Fees and Costs.”  The City appealed this decision to the Second District Court of Appeal.  The Second District affirmed the trial court and directed the Board to “convene and consider Petitioner Patterson’s motion for attorney’s fees and costs.”

            The Board convened on July 25, 2005, to consider the Motion.  At the outset, the Board decided to bifurcate the hearing, first considering whether the Board had authority to award attorney’s fees and costs, and, if so, next consider the merits of the Motion.  Patterson argued that the language of the trial court’s Order granting mandamus relief and the Second District’s per curiam affirmance established that the Board already had authority to award attorney’s fees and costs.  The City’s position was these orders simply directed the Board to convene to consider the Motion, including whether the Board had such authority to award fees and cost.  The City further argued that there was no provision in the City’s Code, nor any legislative authority, for the Board to award fees and costs pursuant to Florida Statutes, § 57.105.  The Board concluded that it did not have the authority to grant Patterson his legal fees and costs.

            Patterson’s argument is that the Board erred in concluding it did not have authority to award fees and costs.  The Court finds that, under the facts of this case, certiorari relief must be denied.  Initially, it is undisputed that Patterson did not file a motion for attorney’s fees in his first Petition, only a motion for costs.  To be awarded appellate attorneys fees, a party is required to file a motion setting forth the grounds for such fees not later than the time for service of the reply brief.  See Fla. R. App. P. Rule 9.400(b).  The failure to timely file a motion for attorneys fees generally precludes the award of appellate fees to the prevailing party.  See id.; see also Respiratory Care Services v. Murray D. Shear, 715 So.2d 1054, 1056 (Fla. 5th DCA 1998)(explaining that even when a fee award is mandatory, a motion for appellate fees must be filed pursuant to rule 9.400(b)).  Hence, even if the Board determined that it did have the authority to award § 57.105 fees, it would not have had the authority to award appellate attorney’s fees. 

            As provided in Rule 9.400, appellate fees and costs are treated separately.  Unlike attorneys fees, costs are taxed in favor of the prevailing party by the lower tribunal on motion served within 30 days of the mandate.  See  Rule 9.400(a).  The motion for costs need not be filed with the appellate court.  When a prevailing party improperly requests costs from this Court, the practice is to deny the motion and direct the party to file the motion with the lower tribunal, in compliance with Rule 9.400(a), as was done in this case.  It is undisputed that Patterson did file his request for costs and that the City paid the costs in full.

            Over six months later, Patterson filed his Motion for § 57.105 attorney’s fees and costs.  The Court finds that the Board followed the ruling of the Second District Court of Appeal; it convened and considered Patterson’s Motion.  While the Board could have determined that its Code is broad enough to permit it to entertain post-appeal motions for fees and costs,[1] the Court cannot conclude that the Board departed from the essential requirements of law in concluding otherwise.  See Palm Beach County Canvassing Board v. Harris, 772 So.2d 1273, 1283 (Fla. 2000)(explaining that courts will defer to an agency’s interpretation of statutes and rules the agency is charge with enforcing unless contrary to law).  The Court finds, under the facts of this case, that it must defer to the City’s interpretation that its Code, the validity of which is not being challenged by either party, did not permit it to award fees and costs.

            Lastly, the Court notes that, assuming the Board ruled that it did have authority to award fees pursuant to § 57.105 and that § 57.105 applies in the administrative context, it appears that Patterson failed to follow the procedure in place for requesting such fees, as there is nothing in the record to indicate that a motion was served as required by subsection (4).  See e.g. Lessard v. State, Department of Highway Safety and Motor Vehicles, 13 Fla. L. Weekly Supp. 19 (Fla. 9th Cir. App. Ct. Aug. 2, 2005)(denying claim for § 57.105 fees when licensee failed to give hearing officer 21-day opportunity to withdraw decision prior to filing motion for fees).  The notice requirement set forth in § 57.105(4), with an effective date of July 1, 2002, applied to Patterson’s Motion, dated May 12, 2003.  The primary purpose of the 21-day service requirement before a party can file a motion seeking sanctions is to give the pleader a last clear chance to withdraw a frivolous claim or defense.  See Maxwell Building Corp. v. Euro Concepts, LLC, 874 So.2d 709, 711 (Fla. 4th DCA 2004).  While the Court recognizes the possible impracticality or futility of following the procedural requirements of § 57.105(4) in an administrative proceeding such as Patterson’s termination, the Court finds that the notice requirements must still be adhered to if a party wishes to seek fees pursuant to this statute.  It is therefore, 

            ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is hereby denied.

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ________ day of May 2006.



                                                JOHN A. SCHAEFER

                                                Circuit Judge, Appellate Division




_______________________________                      ______________________________

LAUREN LAUGHLIN                                              JAMES CASE

Circuit Judge, Appellate Division                                   Circuit Judge, Appellate Division

Copies furnished to:

Scot E. Samis, Esquire

Post Office Box 1511

St. Petersburg, FL  33731


Ernest Mueller, Assist. City Attorney

Post Office Box 2842

St. Petersburg, FL  33713


Diane Bailey, Esquire

150 Second Avenue N., Suite 900

St. Petersburg, FL  33701

[1] Code Section 22-30(b), entitled “Civil Service Board,” provides:  “It shall be the duty of the Civil Service Board to hear and review grievances submitted by classified employees resulting from alleged adverse employer action. . . In the event of an appeal, the Civil Service Board shall meet within a reasonable period of time and continue until the grievance is disposed of.”