43
Fla. L. Weekly D26aTop of Form
Fla. L. Weekly D26aTop of Form
Workers’
compensation — Attorney’s fees — Trial court lacks jurisdiction to review
portion of order entered by judge of compensation claims following remand from
appellate court finding claimant entitled to attorney’s fees for defeating
fraud defense asserted by e/c where JCC reserved jurisdiction to determine
amount of fees
compensation — Attorney’s fees — Trial court lacks jurisdiction to review
portion of order entered by judge of compensation claims following remand from
appellate court finding claimant entitled to attorney’s fees for defeating
fraud defense asserted by e/c where JCC reserved jurisdiction to determine
amount of fees
LEVY COUNTY TRANSIT/ GALLAGHER
BASSETT SERVICES, Appellants, v. ANTOINETTE KOKENZIE, Appellee. 1st District.
Case No. 1D17-3098. Opinion filed December 21, 2017. An appeal from an order of
the Judge of Compensation Claims. Marjorie Renee Hill, Judge. Date of Accident:
March 13, 2015. Counsel: Christopher J. DuBois and Mary E. Cruickshank of
DuBois & Cruickshank, P.A., Tallahassee, for Appellants. Mark N. Tipton,
Ocala, for Appellee.
BASSETT SERVICES, Appellants, v. ANTOINETTE KOKENZIE, Appellee. 1st District.
Case No. 1D17-3098. Opinion filed December 21, 2017. An appeal from an order of
the Judge of Compensation Claims. Marjorie Renee Hill, Judge. Date of Accident:
March 13, 2015. Counsel: Christopher J. DuBois and Mary E. Cruickshank of
DuBois & Cruickshank, P.A., Tallahassee, for Appellants. Mark N. Tipton,
Ocala, for Appellee.
(PER CURIAM.) In this workers’
compensation appeal, the employer/carrier (E/C) challenges the portion of the
order entered by the judge of compensation claims (JCC) on remand from Levy
County Transit/Gallagher Bassett Servs. v. Kokenzie, 220 So. 3d 1251 (Fla.
1st DCA 2017) (Kokenzie I), finding the claimant entitled to attorney’s
fees for defeating the fraud defense asserted by the E/C. We dismiss the appeal
for the reasons that follow.
compensation appeal, the employer/carrier (E/C) challenges the portion of the
order entered by the judge of compensation claims (JCC) on remand from Levy
County Transit/Gallagher Bassett Servs. v. Kokenzie, 220 So. 3d 1251 (Fla.
1st DCA 2017) (Kokenzie I), finding the claimant entitled to attorney’s
fees for defeating the fraud defense asserted by the E/C. We dismiss the appeal
for the reasons that follow.
In Kokenzie I, we affirmed
the JCC’s rejection of the fraud defense asserted by the E/C but we reversed
the award of temporary partial disability (TPD) benefits to the claimant
because the JCC’s finding that the workplace injury was the major contributing
cause of the claimant’s injuries was not supported by competent substantial
evidence. Id. at 1252. We remanded “for entry of an order consistent with
th[e] opinion,” id. at 1253, and on remand, the JCC entered an order
rejecting the fraud defense and denying the claim for TPD benefits. The order
also granted the claimant’s claim for attorney’s fees for successfully
defeating the fraud defense, but reserved jurisdiction to determine the amount
of the fee award if the parties were unable to agree upon the amount.
the JCC’s rejection of the fraud defense asserted by the E/C but we reversed
the award of temporary partial disability (TPD) benefits to the claimant
because the JCC’s finding that the workplace injury was the major contributing
cause of the claimant’s injuries was not supported by competent substantial
evidence. Id. at 1252. We remanded “for entry of an order consistent with
th[e] opinion,” id. at 1253, and on remand, the JCC entered an order
rejecting the fraud defense and denying the claim for TPD benefits. The order
also granted the claimant’s claim for attorney’s fees for successfully
defeating the fraud defense, but reserved jurisdiction to determine the amount
of the fee award if the parties were unable to agree upon the amount.
On appeal, the E/C argues that JCC
erred in determining that the claimant was entitled to attorney’s fees because
the claimant failed to secure any past benefits and no future benefits will
ever be due because the claimant failed to prove that the injury was
work-related. The claimant responds that we lack jurisdiction to review the
portion of the order determining her entitlement to fees because the JCC
reserved jurisdiction on the amount of the fees.
erred in determining that the claimant was entitled to attorney’s fees because
the claimant failed to secure any past benefits and no future benefits will
ever be due because the claimant failed to prove that the injury was
work-related. The claimant responds that we lack jurisdiction to review the
portion of the order determining her entitlement to fees because the JCC
reserved jurisdiction on the amount of the fees.
Although the E/C may well be correct
on the merits, we agree with the claimant that we lack jurisdiction to review
the issue at this time. Indeed, this court has repeatedly held that a
determination of entitlement to attorney’s fees is not appealable where
jurisdiction is reserved to determine the amount of the fees. See, e.g.,
Stanley Steemer Int’l v. Smith , 139 So. 3d 507 (Fla. 1st DCA 2014); Dep’t
of Corr. v. Ferguson, 98 So. 3d 669, 670 (Fla. 1st DCA 2012); Polk
Cty. Bd. of Cty. Comm’rs v. Lyon-Spires, 85 So. 3d 582 (Fla. 1st DCA 2012);
Zampell Refractories, Inc. v. Welch, 61 So. 3d 1160 (Fla. 1st DCA 2011);
Dep’t of Children & Families v. Monroe, 744 So. 2d 1163, 1164 (Fla.
1st DCA 1999); Se. Recycling v. Cottongim, 728 So. 2d 342, 342-43 (Fla.
1st DCA 1999); Wometco Enters. v. Cordoves, 650 So. 2d 1117 (Fla. 1st
DCA 1995). Although the other portions of the order entered on remand are
appealable, see Commercial Carrier Corp. v. LaPointe, 723 So. 2d 912,
914 n. 1 (Fla. 1st DCA 1999), they were not challenged by either party.
Accordingly, because this appeal only concerns the determination of entitlement
to attorney’s fees, we dismiss the appeal for lack of jurisdiction.
on the merits, we agree with the claimant that we lack jurisdiction to review
the issue at this time. Indeed, this court has repeatedly held that a
determination of entitlement to attorney’s fees is not appealable where
jurisdiction is reserved to determine the amount of the fees. See, e.g.,
Stanley Steemer Int’l v. Smith , 139 So. 3d 507 (Fla. 1st DCA 2014); Dep’t
of Corr. v. Ferguson, 98 So. 3d 669, 670 (Fla. 1st DCA 2012); Polk
Cty. Bd. of Cty. Comm’rs v. Lyon-Spires, 85 So. 3d 582 (Fla. 1st DCA 2012);
Zampell Refractories, Inc. v. Welch, 61 So. 3d 1160 (Fla. 1st DCA 2011);
Dep’t of Children & Families v. Monroe, 744 So. 2d 1163, 1164 (Fla.
1st DCA 1999); Se. Recycling v. Cottongim, 728 So. 2d 342, 342-43 (Fla.
1st DCA 1999); Wometco Enters. v. Cordoves, 650 So. 2d 1117 (Fla. 1st
DCA 1995). Although the other portions of the order entered on remand are
appealable, see Commercial Carrier Corp. v. LaPointe, 723 So. 2d 912,
914 n. 1 (Fla. 1st DCA 1999), they were not challenged by either party.
Accordingly, because this appeal only concerns the determination of entitlement
to attorney’s fees, we dismiss the appeal for lack of jurisdiction.
DISMISSED. (WETHERELL, MAKAR, and
KELSEY, JJ., CONCUR.)
KELSEY, JJ., CONCUR.)
* * *