Michael Moline
A state appeals court criticized a judge of compensation claims for denying a $20,000 attorney fee award because of unsubstantiated claims that the parties had colluded.
The 1st District Court of Appeal ordered Judge John Lazzara of Tallahassee to conduct a proper evidentiary hearing in the matter.
“Given the JCC’s failure to provide the parties with proper notice and the opportunity to be heard on the issues that the JCC found determinative in his ruling, we find the JCC violated claimant’s right of due process with entry of the final order here,” the court said in an unsigned opinion Tuesday.
“We, therefore, reverse and remand for a properly noticed evidentiary hearing,” the court said.
The case involved a claim for hearing loss by Jose Delgado against City Concrete Systems Inc. and FCCI Insurance Co. The parties had agreed upon the fee award, but waited until May 2016, after the Florida Supreme Court issued its much-anticipated Castellanos v. Next Door Co. ruling on attorney fees, to file it with the judge.
Lazzara conducted a telephone hearing to discuss it.
He was within his authority, a three-judge appeals panel said in an unsigned opinion.
But the court criticized Lazzara’s seven-page order “that assumed certain unestablished facts and strongly suggested that the attorneys engaged in collusion to commit fraud.”
Lazzara’s order says the judge held an evidentiary hearing, but “there is little support for this statement in the record,” the court said.
“The hearing transcript — only 10 pages long — does not in any way suggest an evidentiary hearing took place. The parties were not asked to submit evidence or present witnesses. During the hearing, the JCC questioned the attorneys about the basis for the fee, but did not indicate any issues of fraud or collusion.”
When the attorneys disputed the finding, Lazzara refused to consider their protests, “on the ground that time for submitting additional evidence had “long passed,” the court said.
