Mintz Truppman, P.A., etc. v. Cozen O'Connor, PLC

Supreme Court of Florida
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No. SC20-1225
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MINTZ TRUPPMAN, P.A., etc.,
Petitioner,

vs.

COZEN O’CONNOR, PLC, et al.,
Respondents.

August 25, 2022

COURIEL, J.

The question in this case is whether the Third District Court of

Appeal in Cozen O’Connor, PLC v. Mintz Truppman, P.A., 306 So. 3d

259 (Fla. 3d DCA 2020), did the right thing when it issued a writ of

prohibition to prevent a circuit court from exercising jurisdiction

over claims that, one party says, the other party was collaterally

estopped from advancing.1 We decide that it did not.

1. We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.
I

Daphne Query had a pipe burst in her home, causing

substantial damage. She hired Mintz Truppman, P.A. (Mintz) to

represent her in a lawsuit against Lexington Insurance Company

(Lexington), which was represented by Cozen O’Connor, PLC

(Cozen). Lexington removed the case to the United States District

Court for the Southern District of Florida, and the parties decided

to settle. The judge overseeing the case approved the settlement

and “retain[ed] jurisdiction to enforce the terms of the settlement

and to determine the amount of attorneys’ fees.” Amended Final

Order of Dismissal at 1, Query v. Lexington Ins. Co., No. 15-21951

(S.D. Fla. July 1, 2016) (Amended Final Order of Dismissal). When

Query and Lexington could not settle their dispute about attorney’s

fees at mediation, they submitted it to the court for resolution.

Mintz argued that it was entitled to $828,056 in fees. As a

basis for this demand, the firm stated that Lexington agreed to pay

Query 100% of her losses from the property damage she sustained,

that is, $125,000.2 Lexington and Cozen denied that Query

2. That sure sounds like the kind of result only a lawyer could
love. Mintz calculated its request for attorney’s fees using the
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received 100 percent of what she demanded. To prove their point,

Lexington and Cozen filed Query’s initial settlement demand, which

had apparently asked for more,3 with the court—a fateful decision.

Two weeks later, Mintz filed this lawsuit in state court, arguing

essentially that Lexington and Cozen had violated the

confidentiality requirements applicable to the mediation by filing

“lodestar method”: “the number of hours reasonably expended . . .
multiplied by a reasonable hourly rate,” with the rate determined by
twelve factors, such as “the novelty and difficulty of the question”
and “the skill requisite to perform the legal service properly,” which
are listed in the American Bar Association’s Model Rules of
Professional Conduct, rule 1.5 (2021). See Fla. Patient’s Comp. Fund
v. Rowe, 472 So. 2d 1145, 1150 (Fla. 1985) (citing Fla. Code of Pro.
Resp. DR 2-106(b) (1977)); Hensley v. Eckerhart, 461 U.S. 424, 430
n.3 (1983) (citing Model Code of Pro. Resp. DR 2-106 (Am. Bar Ass’n
1980)). The firm said one lawyer did 285.6 hours of work at a rate
of $680 per hour, another did 36.1 hours at $250 per hour, another
did 175.4 hours at $575 per hour, and another did 191.2 hours at
$575 per hour—so, $414,028. Mintz asked the court to then
double that because, by representing Query in exchange for fees
contingent on the outcome of the case, it undertook significant risk.
See Fla. Patient’s Comp. Fund, 472 So. 2d at 1151 (“When the
prevailing party’s counsel is employed on a contingent fee basis, the
trial court must consider a contingency risk factor when awarding a
statutorily-directed reasonable attorney fee.”); see also Standard
Guar. Ins. Co. v. Quanstrom, 555 So. 2d 828, 834 (Fla. 1990) (“[I]f
the trial court determines that success was unlikely at the outset of
the case, it may apply a multiplier of 2.0 to 2.5.”).

3. How much, we cannot confidently say based on the record
before us.
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Query’s initial settlement demand. Lexington and Cozen each

moved to dismiss the case, and the circuit court denied the motions

without elaboration. Then Lexington and Cozen went to the Third

District Court of Appeal for relief: Cozen filed a petition for a writ of

prohibition or a writ of certiorari, which Lexington joined. They

argued that the circuit court had exceeded its jurisdiction when it

entertained an issue that had been pled by a party without

standing, 4 and had, anyway, already been resolved in federal

court—that is, Cozen’s collateral estoppel defense.5 Lexington

petitioned for a writ of certiorari,6 arguing that the circuit court

4. Cozen argued that Mintz was not a “party” to the Query-
Lexington mediation, so it did not have access to the remedies that
section 44.406 offers “part[ies]” for breaches of mediation
confidentiality. § 44.406(1), Fla. Stat. (“Any mediation participant
who knowingly and willfully discloses a mediation communication
in violation of s. 44.405 shall, upon application by any party to a
court of competent jurisdiction, be subject to remedies . . . .”
(emphasis added)).

5. Even though Mintz, in this state court litigation, invokes
questions of mediation confidentiality that it did not raise in federal
court, Cozen argues that the “gravamen of Mintz’s state court action
is to recover additional attorneys’ fees.” Cozen, 306 So. 3d at 263.

6. In Florida, the common law writ of certiorari allows circuit
courts and district courts of appeal to review nonfinal orders of
lower tribunals. Art. V, §§ 4(b)(3), 5(b), Fla. Const.; Fla. R. App. P.
9.030(b)(2), (c)(2). Appellate review is not available for most
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departed from the essential requirements of the law by refusing to

dismiss Mintz’s claims. Lexington, like Cozen, argued that Mintz

lacked standing to bring its claims, but it also said it was immune

to suit because it filed Query’s settlement demand during the

course of a judicial proceeding. See Levin, Middlebrooks, Mabie,

Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So. 2d 606,

608 (Fla. 1994) (“[W]e find that absolute immunity must be afforded

to any act occurring during the course of a judicial proceeding . . .

so long as the act has some relation to the proceeding.”).

The Third District agreed with Lexington and Cozen on the

collateral estoppel defense and dismissed all their other arguments

as moot. Cozen, 306 So. 3d at 263. The court explained it had

“little difficulty concluding that Lexington and Cozen [had]

established each of the four elements of collateral estoppel.” Id. at

nonfinal orders; writs of certiorari are thus an “extraordinary
remedy” and may be granted for review of a nonfinal order only
when the order, departing from the “essential requirements of law,”
will injure a party such as to leave “no adequate remedy on appeal.”
Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097, 1098-99 (Fla.
1987), superseded by statute on other grounds, § 768.72, Fla. Stat.
(2021).

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265. 7 Based on that conclusion, the Third District held that the

circuit court lacked jurisdiction to adjudicate Mintz’s claims, and it

issued a writ of prohibition to prevent the circuit court from

proceeding. Id.

Mintz appealed to this Court.

II

Prohibition is an extraordinary writ, extremely narrow in

scope, by which a superior court may prevent an inferior court from

exceeding its jurisdiction. English v. McCrary, 348 So. 2d 293, 296

(Fla. 1977); see also State ex rel. B. F. Goodrich Co. v. Trammell, 192

So. 175, 176 (Fla. 1939) (“[T]he writ of prohibition is that process by

which an inferior court is restrained by a superior court from

7. The Third District outlined the following four elements:

1) [T]he issue at stake is identical to the one involved in
the prior litigation; 2) the issue has been actually
litigated in the prior suit; 3) the determination of the
issue in the prior litigation was a critical and necessary
part of the judgment in that action; and 4) the party
against whom the earlier decision is asserted had a full
and fair opportunity to litigate the issue in the earlier
proceeding.

Cozen, 306 So. 3d at 264 (quoting Baxas Howell Mobley, Inc. v. BP
Oil Co., 630 So. 2d 207, 209 (Fla. 3d DCA 1993)).

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usurping jurisdiction over parties or subject matter with which it

has not been vested by law, or when action is threatened which

would be in excess of and beyond its jurisdiction.”).

We have consistently said that the purpose of the writ is to

prevent a court’s action beyond the scope of its jurisdiction, not to

correct an erroneous exercise of jurisdiction. See McCrary, 348 So.

2d at 296-97 (“It is preventive and not corrective in that it

commands the one to whom it is directed not to do the thing which

the supervisory court is informed the lower tribunal is about to do.

Its purpose is to prevent the doing of something, not to compel the

undoing of something already done.”); State ex rel. Sarasota Cnty. v.

Boyer, 360 So. 2d 388, 391-92 (Fla. 1978) (“Prohibition is

preventive and not corrective. It cannot be used to revoke an order

already entered.”) (footnote omitted); State ex rel. R. C. Motor Lines,

Inc. v. Boyd, 114 So. 2d 169, 170 (Fla. 1959) (“We have several

times announced that prohibition is a preventive rather than a

corrective remedy. . . . The very name of the writ suggests its

proper use. It is used to prohibit the doing of something, rather

than to compel the undoing of something already done.”); State ex

rel. Jennings v. Frederick, 189 So. 1, 3 (Fla. 1939) (“It appears well
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settled that, ‘Another distinguishing feature of the writ is that it is a

preventive rather than a corrective remedy, and it issues only to

prevent the commission of a future act, and not to undo an act

already performed.’ ” (citing James L. High, A Treatise on

Extraordinary Legal Remedies, Embracing Mandamus, Quo

Warranto, and Prohibition § 766 (3d ed. 1896))).

That is not how the writ of prohibition was used here. The

Third District undid the trial court’s exercise of jurisdiction in

denying Lexington’s and Cozen’s motions to dismiss on the basis of

an affirmative defense. That matters because, were we to permit

litigants to seek prohibition in every case in which a trial judge

denies a motion to dismiss based on collateral estoppel, res

judicata, or any other affirmative defense, 8 the writ could be used to

end-run our rules on appeals generally and interlocutory appeals in

particular. Florida’s district courts may review only those

8. “An affirmative defense is a defense which admits the cause
of action, but avoids liability, in whole or in part, by alleging an
excuse, justification, or other matter negating or limiting liability.”
State Farm Mut. Auto. Ins. Co. v. Curran, 135 So. 3d 1071, 1079
(Fla. 2014) (quoting St. Paul Mercury Ins. Co. v. Coucher, 837 So. 2d
483, 487 (Fla. 5th DCA 2002)).

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interlocutory orders allowed by the rules of this Court. Art. V, §

4(b)(1), Fla. Const. We have found only some categories of nonfinal

orders, such as those concerning venue or personal jurisdiction,

appropriate for interlocutory appeal. Fla. R. App. P. 9.130. Here,

rule 9.130 would likely bar interlocutory appeal of the circuit

court’s nonfinal order denying Lexington’s and Cozen’s motion to

dismiss. See Bd. of Cnty. Commr’s of Madison Cnty. v. Grice, 438

So. 2d 392, 394 (Fla. 1983) (“An order on a motion to dismiss may

not be final, but an order which actually dismisses the complaint

is.” (citing Gries Inv. Co. v. Chelton, 388 So. 2d 1281, 1282 (Fla. 3d

DCA 1980) (“An order granting a motion to dismiss is not final and

not appealable.”))).

In the cases where we have found a writ of prohibition to be an

appropriate remedy, it has not been deployed to reverse a trial

court’s order on the merits of a case on the basis of an affirmative

defense. We have found it properly issued where a court has

proposed to act in excess of its subject matter jurisdiction. For

example, in Nicoll v. Baker, 668 So. 2d 989 (Fla. 1996), we found

that the Second District Court of Appeal was right to issue the writ

where a claim for alimony was not cognizable under the Uniform
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Reciprocal Enforcement of Support Act, section 88.031, Florida

Statutes (1993), and thus the circuit court lacked jurisdiction to

enforce it. 668 So. 2d at 989.

Similarly, in State ex rel. McKenzie v. Willis, 310 So. 2d 1 (Fla.

1975), we held that a writ of prohibition was properly issued to

protect the Florida Public Service Commission’s “judicial or quasi-

judicial powers” as provided by statute from an action in circuit

court—again, addressing a matter of limited subject matter

jurisdiction. Id. at 3 (“The controversies involved in the two suits

are resolvable by the Commission within its jurisdiction subject to

review by the Supreme Court. They do not lie within the

jurisdiction of the Circuit Courts.”).

The Third District’s issuance of the writ here is different; it is

closer to what we described in McCrary as an order “to compel the

undoing of something already done” by the trial court in the

exercise of a matter within its subject matter jurisdiction. 348 So.

2d at 297. The fact that it comes to us on review of the denial of a

motion to dismiss is not alone dispositive—Nicoll did, too. Nicoll,

668 So. 2d at 989. That procedural reality, plus the fact that the

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writ was used here to revisit the trial court’s weighing of an

affirmative defense, made its issuance improper.

III

We therefore quash the decision below and remand to the

Third District with instructions to deny Lexington’s and Cozen’s

claims for a writ of prohibition and adjudicate the arguments for

certiorari that it previously declared moot.

It is so ordered.

MUÑIZ, C.J., and CANADY, POLSTON, LAWSON, and
GROSSHANS, JJ., concur.
LABARGA, J., concurs in result.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.

Application for Review of the Decision of the District Court of Appeal
Direct Conflict of Decisions

Third District – Case Nos. 3D18-1975 and 3D18-1976

(Miami-Dade County)

Timothy H. Crutchfield of Mintz Truppman, P.A., North Miami,
Florida,

for Petitioner

Charles C. Kline and Reid Kline of Cozen O’Connor, Miami, Florida,

for Respondents Cozen O’Connor, P.C. and John David
Dickenson
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Thomas E. Scott and Alexandra Valdes of Cole Scott & Kissane,
P.A., Miami, Florida,

for Respondent Lexington Insurance Company

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