                                      IN THE DISTRICT COURT OF APPEAL
                                      FIRST DISTRICT, STATE OF FLORIDA

JOHN O’CONNOR,                        NOT FINAL UNTIL TIME EXPIRES TO
                                      FILE MOTION FOR REHEARING AND
      Appellant,                      DISPOSITION THEREOF IF FILED

v.                                    CASE NO. 1D15-4986

INDIAN RIVER COUNTY
FIRE RESCUE/JOHNS
EASTERN COMPANY, INC.,

      Appellees.


_____________________________/

Opinion filed August 2, 2016.

An appeal from an order of the Judge of Compensation Claims.
Robert L. Dietz, Judge.

Date of Accident: January 10, 2015.

Michael J. Winer of the Law Office of Michael J. Winer, P.A., Tampa, and Geoffrey
Bichler of Bichler, Kelley, Oliver, Longo & Fox, PLLC, Maitland, for Appellant.

William H. Rogner of Hurley, Rogner, Miller, Cox, & Waranch, P.A., Winter Park,
for Appellees.




      ON MOTION FOR REHEARING AND REHEARING EN BANC
PER CURIAM.


      We grant Appellant’s motion for rehearing, withdraw our prior opinion of

May 20, 2016, and substitute this opinion in its place. Appellant’s motion for

rehearing en banc is denied.

      In this workers’ compensation appeal, Appellant appeals an order of the judge

of compensation claims (JCC) awarding costs to Appellees as the prevailing party

pursuant to section 440.34(3), Florida Statutes (hereafter “the costs order”). We

affirm the costs order because Appellant did not present any substantive argument

for its reversal. We also admonish Appellant’s counsel for their lack of candor

concerning the order at issue in this appeal.

                                Factual Background

      Appellant requested that the JCC approve an attorney’s fee retainer agreement

whereby Appellant’s union agreed to pay Appellant’s attorney’s fees to prosecute

his workers’ compensation exposure claim regardless of whether the attorneys were

successful in obtaining any benefits. The JCC entered an order (hereafter “the fee

order”) denying the request, and Appellant’s attorneys subsequently withdrew from

representing Appellant. Appellant then dismissed his pending petition for benefits

(PFB) and filed a petition for writ of certiorari in this court (Case No. 1D15-3562)

challenging the fee order.


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      After Appellant dismissed his PFB, Appellees sought prevailing-party costs,

which the JCC granted. While the petition for writ of certiorari was pending,

Appellant appealed the costs order to this court. Instead of arguing for reversal of

the costs order, however, Appellant’s briefs included arguments only for reversal of

the fee order. 1 Thereafter, we issued an order directing Appellant to show cause

why sanctions should not be imposed because Appellant failed to inform the court

that he had two pending proceedings in this court seeking review of the same

interlocutory order.

                                      Discussion

      The fee order was interlocutory and, thus, not subject to review on appeal

because it was not entered in the costs proceeding; rather, it was entered in the

proceeding that culminated in Appellant voluntarily dismissing his PFBs.

      Appellant relies on Jacobson v. S.E. Pers. Leasing, Inc., 113 So. 3d 1042 (Fla.

1st DCA 2013), for the position that the appeal of the costs order called up for review

the interlocutory fee order entered prior to his dismissal of his PFB. Jacobson does




1
  The only argument Appellant directed to the costs order was in the conclusion to
the reply brief in which Appellant asserted that the judgment was the “fruit” of a
previous order addressing the retainer agreements discussed below. This assertion,
however, did not address in any way the merits of the costs order. And, in any event,
an argument cannot be raised for the first time in a reply brief. See Plichta v. Plichta,
899 So. 2d 1283, 1287 (Fla. 2d DCA 2006) (“[I]ssues raised on appeal for the first
time in a reply brief are not properly before th[e] court and will not be considered.”).
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not support Appellant’s position, however, because that case involved a critically

different factual and procedural situation than exists here.

      In Jacobson, the claimant lost his claim for benefits on the merits and the

employer/carrier sought a costs judgment against him. The claimant then sought the

JCC’s approval of a retainer agreement that would allow him to pay with his own

funds his attorney’s fees for representing him in the costs proceeding. See 113 So.

3d at 1046-47. The JCC denied the request, claimant proceeded on his own, and

appealed the subsequent costs judgment. Thus, appellate review of the interlocutory

retainer order was proper in that case pursuant to Florida Rule of Appellate

Procedure 9.110(h) because the costs judgment called up for review all interlocutory

orders entered in the costs proceeding.

      This case also differs from the situation in Miles v. City of Edgewater, 190

So. 3d 171 (Fla. 1st DCA 2016). There, after the JCC entered orders denying

approval of fee retainer agreements similar to the ones in this case, the claimant’s

counsel withdrew and the claimant proceeded to a merits hearing pro se, and the

JCC ultimately entered a final order denying the claimant’s claim on the merits. The

claimant subsequently appealed the final order and, in that appeal, she argued that

the orders denying approval of the retainer agreement deprived her of various

constitutional rights. See 190 So. 3d at 175-77. Thus, as in Jacobson, but unlike




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here, the interlocutory retainer orders in Miles were entered in the proceeding that

culminated in the final order that gave rise to the appeal.

      Here, Appellant voluntarily dismissed his PFB, so there was no final order to

appeal or which subsumed any interlocutory orders leading up to it. And it was this

dismissal that entitled Appellees to prevailing-party costs, and the proceedings

leading to the costs judgment were ancillary. See Guckenberger v. Seminole Cty.,

979 So. 2d 407, 408-09 (Fla. 1st DCA 2008) (“‘Costs are statutory allowances

recoverable by the successful party as an incident to the main adjudication. They are

neither part of the damages claimed nor a penalty and need not be specially pleaded

or claimed.’” (quoting Golub v. Golub, 336 So. 2d 693, 694 (Fla. 2d DCA 1976)).

Thus, review of the fee order was limited to a petition for writ of certiorari, which

Appellant did in fact file, but which was denied while this appeal was still pending.

      The improper use of this appeal as a second chance to obtain review of the fee

order is troublesome, but it was not only Appellant’s attorneys’ mistaken, albeit

apparently good faith, belief that the fee order was reviewable in this appeal of the

costs order that led this court to order counsel to show cause why sanctions should

not be imposed. Rather, more concerning was counsel’s failure to adequately

apprise the court that Appellant had two pending proceedings in this court both

challenging the same order despite having multiple opportunities to do so.




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      Specifically, trial counsel twice amended the notice of appeal, but in each

version indicated only that Appellant was appealing the final order assessing costs.

Nothing in the notices indicated that the real reason for this appeal was to challenge

the earlier-entered fee order. Then, appellate counsel amended an earlier docketing

statement to refer to the petition for certiorari filed on Appellant’s behalf and

to Miles, which was then also pending before this court (and in which Appellant’s

counsel here was also counsel of record). In this filing, counsel simply stated that

the cases “involve the exact same issues” and nothing more. Appellate counsel later

moved to consolidate this case with Appellant’s petition for certiorari and Miles,

again asserting a commonality of issues. In no place did appellate counsel indicate

that Appellant was not actually challenging the costs order on appeal. Review of the

petition at that juncture would have revealed only that there was a pending challenge

to the fee order which, from all appearances, was unrelated to the costs order that

was purportedly the subject of the appeal in this case. If this appeal was in fact

challenging the same order being reviewed via the petition, trial or appellate counsel

should have sought consolidation at the onset of the appeal and explained why

consolidation would have been appropriate.

      This court did not become aware of the true focus of this appeal until the initial

brief was filed. The brief ignored the costs order altogether and instead challenged

only the fee order, setting forth the same general arguments that Appellant’s counsel

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had made in Miles. Thus, Appellant’s appellate counsel attempted to use this costs

order appeal to obtain a second presentation of his argument concerning the fee order

and, at every opportunity Appellant’s counsel had prior to filing the initial brief, they

failed to make it clear to this court that the appeal solely involved the fee order.

      In response to the show cause order, appellate counsel indicated that nothing

in the rules required counsel to indicate in the notice of appeal that Appellant was

actually appealing the fee order, not the costs order. Rather, counsel believed that

the notice of appeal included an earlier interlocutory order, and that the order at issue

did not need to be described because no “benefits” as such were at issue. See Fla. R.

App. P. 9.180(b)(4) (requiring the notice of appeal to include a “brief summary of

the type of benefits affected”). However, in the response to the show cause order

and again in the motion for rehearing, counsel recognized that although the rule may

not require listing any interlocutory order being challenged, under the facts here, the

better practice would have been to make it clear in the notice of appeal that the order

being challenged was the fee order and to move to consolidate at the outset with the

request making it clear that the only order actually being challenged was the fee

order which, in turn, involved the same issues as those raised in the petition and

in Miles. We accept counsel’s contrition.

      In our original opinion in this case, we sanctioned Appellant’s counsel for

their lack of candor by requiring them to pay the fees incurred by Appellees in this

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appeal. Upon reconsideration, however, we determine that the admonishment in this

opinion is a sufficient sanction.

                                    Conclusion

      Based on the foregoing, the costs order is AFFIRMED.


WETHERELL, ROWE, and OSTERHAUS, JJ., CONCUR.




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