Opinion
Case No. 2D01-529.
Opinion filed February 25, 2004.
Appeal from the Circuit Court for Hillsborough County, Ralph Steinberg, Judge.
William E. McDaniels and Thomas G. Hentoff of Williams Connolly LLP, Washington, D.C., Patricia Fields Anderson, P.A., St. Petersburg, and Gary D. Roberts and Theodore A. Russell of Fox Group Legal Department, Los Angeles, California, for Appellant.
Michael S. Finch, St. Petersburg, and Stuart C. Markman, Robert W. Ritsch, and Katherine Earle Yanes of Kynes, Markman Felman, P.A., Tampa, for Appellee.
Roy C. Young of Young, vanAssenderp, Varnadoe Anderson, P.A., Tallahassee, for Amicus Curiae The Florida Chamber of Commerce.
Robert Corn-Revere and Brad C. Deutsch of Hogan Hartson, LLP, Washington, D.C., for Amicus Curiae, Belo Corp., Cox Television, Inc., Gannett Co., Inc., Media General Operations, Inc., and Post-Newsweek Stations, Inc.
This court entered an order granting appellate attorney's fees to the appellant, New World Communications of Tampa, Inc., d/b/a WTVT-TV, a subsidiary of Fox Television. Thereafter, the appellee, Jane Akre, sought rehearing, clarification, rehearing en banc, and certification of a question of great public importance. We grant Akre's requests for rehearing and clarification and deny her requests for rehearing en banc and certification.
WTVT appealed a final judgment entered against it for violating Florida's private sector whistle-blower's statute, section 448.102, Florida Statutes (1997). The final judgment was entered pursuant to a jury verdict awarding Akre $425,000 in damages. We reversed after concluding that Akre had failed to state a claim under the whistle-blower's statute. We also granted WTVT's motion for appellate attorney's fees under section 448.104, Florida Statutes (1997), which states, "[a] court may award reasonable attorney's fees, court costs, and expenses to the prevailing party."
In her motion for rehearing, Akre argues that because section 448.104 authorizes an award of attorney's fees to prevailing defendants as well as to prevailing plaintiffs, this court should apply the standard articulated in Christiansburg Garment Co. v. Equal Employment Opportunity Commission, 434 U.S. 412, 421 (1978). In Christiansburg, the Court had to determine the proper standard for an award of attorney's fees to a prevailing defendant in an action brought under Title VII of the Civil Rights Act of 1964. Title VII gives courts discretion to award fees to the prevailing party, as does section 448.104, but it does not give any indication of when a court should award fees to a prevailing plaintiff or a prevailing defendant.
The Christiansburg Court concluded that equitable considerations embodied in Title VII justified applying different standards depending on whether the prevailing party was a plaintiff or a defendant. The Court found that while fees should be awarded to every prevailing plaintiff unless special circumstances would make such an award unjust, fees should only be awarded to a prevailing defendant when the plaintiff's action was "frivolous, unreasonable, or without foundation."Christiansburg, 434 U.S. at 420.
We do not agree with Akre's contention that this same standard should apply to an action brought under Florida's whistle-blower's statute. We are not persuaded that the reasons cited by the Christiansburg Court for applying different standards to prevailing plaintiffs and defendants apply to cases brought under section 448.103. To the extent that this question has been addressed by other courts, they have likewise concluded that the Christiansburg standard is not applicable to fee awards under section 448.104. See Gamb v. Hilton Hotels Corp., No. 95-466-CIV-ORL-19, 1997 WL 893874 (M.D. Fla. Sept. 26, 1997), aff'd, 132 F.3d 46 (11th Cir. 1997); McGregor v. Bd. of County Comm'rs, 130 F.R.D. 464 (S.D. Fla. 1990), aff'd, 956 F.2d 1017 (11th Cir. 1992).
Nevertheless, because section 448.104 is not mandatory, we must consider whether to exercise our discretion and make such an award in this case. Under the circumstances of this appeal, we conclude that WTVT is not entitled to appellate attorney's fees. Akre came to this court as an appellee defending a final judgment entered in her favor at the conclusion of a jury trial. We do not believe that it is either realistic or good policy to require an appellee who has obtained a favorable jury verdict to abandon it on appeal or risk an award of attorney's fees if it is reversed.
We reach this conclusion even though the whistle-blower aspect of Akre's case was without legal merit from its inception. This court has held that because all final judgments have a presumption of correctness, attempting to uphold one is not frivolous. Cf. Dep't of Highway Safety Motor Vehicles v. Salter, 710 So.2d 1039 (Fla. 2d DCA 1998). Accordingly, even the lack of legal merit in Akre's position does not convince us that we should exercise our discretion to award appellate attorney's fees to WTVT.
We are aware of the Fourth District's decision in Forum v. Boca Burger, Inc., 788 So.2d 1055 (Fla. 4th DCA 2001), review granted, 817 So.2d 844 (Fla. 2002). We have concluded that it is not pertinent to our decision because Salter still represents this district's position regarding whether defense of a judgment on appeal can ever be considered frivolous. Additionally, we find nothing in Forum that expressly repudiates that principle, which was the law in the Fourth District when Forum was decided. See Coral Springs Roofing Co. v. Campagna, 528 So.2d 557 (Fla. 4th DCA 1988). Rather, the holding in Forum is directed to the proper construction of a 1999 amendment to section 57.105, Florida Statutes, that the Fourth District concluded broadened the circumstances under which a fee award could be made under that statute.
We emphasize that we are only considering the issue of a proper exercise of discretion for an award of appellate attorney's fees. On remand, the trial court will have to make its own determination regarding whether to award trial court attorney's fees to WTVT as the prevailing party. To be entitled to such an award, however, WTVT does not have to demonstrate that Akre's suit was frivolous.
No further motions for rehearing will be entertained.
CASANUEVA, J., and GREEN, OLIVER L., SENIOR JUDGE, Concur.