January 1st, 2023, marked the genesis of Florida’s newest intermediate appellate court, the Sixth District Court of Appeal (“DCA”).[i] In spectacular fashion, Florida’s judicial landscape changed overnight: circuit and county courts, once bound by Fifth District or Second District, now found themselves within the purview of the Sixth District. Before long, trial judges faced a question: in the event of a circuit split, what law applies in their jurisdiction? Unfortunately, the Sixth DCA announced in a recent opinion that this new court is not bound by their sister courts’ opinions and are only bound by the jurisprudence of the Florida Supreme Court and the Sixth DCA itself.[ii] But with the Florida Supreme Court’s severely limited jurisdiction and the newly established Sixth DCA’s quantifiable lack of caselaw, that means that the Sixth DCA has nearly no binding, mandatory authority that controls its decisions, creating a veritable free-for-all for appellate lawyers to exploit. But the Sixth DCA has misclassified the jurisprudence of the Second and Fifth DCAs. The Second and Fifth DCA opinions issued prior to January 1, 2023, are not opinions of sister courts; rather, they are opinions of predecessor courts, which are binding authority, and the Sixth DCA should recognize that they are bound by their predecessor courts’ opinions. To hold otherwise would purge the Sixth DCA of established caselaw, allowing for the relitigation of issues that should have been protected by the principles of stare decisis and res judicata.

In the case, CED Captial Holdings 2000 EB, LLC v. CTCW-Berkshire Club, LLC, the Sixth DCA heard arguments regarding whether a billing lawyer needed to testify personally when requesting an award of attorney’s fees.[iii] However, to complicate the matter, the Florida DCAs are currently split regarding this evidentiary issue. The Third and Fifth districts have held that an attorney need not testify if there is other evidence of the work performed, and the First, Second, and Fourth districts have held that an attorney must testify about the services performed when asking for an award of attorney’s fees.[iv] The appellant argued that the Sixth DCA should follow the Third and Fifth districts, while the appellee argued that the Sixth district should follow the First, Second, and Fourth districts. Because both of the Sixth DCA’s predecessor courts had taken opposing views of the issue, the Sixth DCA had no clear precedent to draw from, prompting the court to declare the following:

the Sixth District Court of Appeal is not bound by the precedent of any of its sister courts, including the Second and Fifth District. Instead, in the absence of a Florida Supreme Court decision on point, our consideration of whether sworn testimony from counsel must be introduced as evidence of the work performed is analyzed by returning to first principles.[v]

On the surface, this ruling makes sense because the Sixth DCA cannot follow the precedence of both the Second and Fifth districts when they so obviously conflict with each other; however, upon closer inspection, the holding fails to limit itself to situations where the predecessor courts are split. Rather, this holding appears to apply regardless of whether the Second and Fifth districts are split or not. The court appears to justify this ruling by citing cases showing the traditional rules for appellate courts in Florida.

Florida’s traditional rules for appellate courts flow from the court hierarchy outlined by the Florida Constitution: “[t]he judicial power shall be vested in a supreme court, district courts of appeal, circuit courts and county courts.”[vi]According to this hierarchy, the supreme court’s decisions bind all other courts in Florida, the district courts bind the circuit and county courts, and the circuit courts bind the county courts. And for courts that sit at the same hierarchical level, established jurisprudence dictates that “an appellate court is not bound by any of the decisions issued by its sister appellate courts.”[vii] But, under the diagonal rule of mandatory authority, lower courts are bound by the decision of all courts above them in the judicial hierarchy; however, if two districts have conflicting caselaw, the lower court applies the rulings of the court in whose jurisdiction the lower court resides.[viii] However, nothing about traditional Florida jurisprudence dictates that a new DCA is not bound by its predecessor courts; additionally, American courts have almost always been bound by the predecessor courts.

Since the ratification of the Constitution, the United States, and the many courts therein, have applied English common law from their predecessor courts, the same law that was applied prior to the revolutionary war. Florida’s very own statutes command this application of predecessor court law: “[t]he common and statute laws of England . . . down to the 4th day of July, 1776, are declared to be of force in this state . . . .”[ix] Of course, the application of this common law comes from the directive of the legislature, not the rules, traditions, or holdings of any Florida court, but other State courts have long held that the body of English common law bound them prior to the enactment of such statutes.

For example, in South Carolina, after the passage of a general law instructing the courts of the colony of South Carolina to apply English Common law, a court espoused the following in 1812:

our act of assembly, passed in the year 1712, says the common law of England shall be in as full force and virtue in this state as in England. And, even if it did not, I do not know by what other law we should be governed; for the common law is as much the law of this country as of England.[x]

And furthermore, the South Carolina Supreme Court stated that “the statute, making the common law of force in this state, is merely declaratory in its nature,”[xi] because the common law of England was already in force prior to that act in 1712, which itself predated the United States Constitution by nearly eighty years.

            However, far more recent events also show newly established appellate courts applying precedential value to the decisions of their predecessor courts. Prior to October 1, 1981, Florida and its neighbor states to the north and west were all considered part of the Federal Fifth Circuit Court of Appeals, but then, Congress enacted the Fifth Circuit Court of Appeals Reorganization Act of 1980, which established the Eleventh Circuit Court of Appeals in Florida, Alabama, and Georgia.[xii] This new circuit court found itself in much the same situation that the Sixth DCA currently finds itself in; jurists litigating in the district courts of Florida, Alabama, and Georgia found themselves uncertain as to what caselaw, if any, bound the eleventh circuit’s decisions. In response to the confusion, the new eleventh circuit issued an opinion quelling the confusion.

This court . . . has taken this case en banc to consider what case law will serve as the established precedent of the Eleventh Circuit at the time it comes into existence. We hold that the decisions of the United States Court of Appeals for the Fifth Circuit . . . as that court existed on September 30, 1981, handed down by that court prior to the close of business on that date, shall be binding as precedent in the Eleventh Circuit, for this court, the district courts, and the bankruptcy courts in the circuit.[xiii]

Thus, in a swift, decisive fashion, the new circuit established that it would continue to follow its predecessor court’s caselaw while slowly developing its own. This rule prevented any sudden shifts in the caselaw, and maintained judicial stability, protecting stare decisis and res judicata.

            The Sixth DCA need not cast aside more than a century of judicial precedent from its predecessor courts, plunging local jurists into agonizing uncertainty regarding the Sixth DCA precedent. Instead of abandoning the Fifth and Second District’s caselaw, the Sixth DCA should adopt a similar approach to the Eleventh Circuit’s approach—incorporating caselaw and precedent from its predecessor court up to the creation of the Eleventh Circuit itself. Only in situations where the established precedent from the Second and Fifth Districts conflict, should the Sixth DCA consider the matter as a case of first impression. Luckily, the Sixth DCA has not yet released its opinion in CTCW-Berkshire Club, LLC, for publication, meaning that the court still retains the right to withdraw the opinion and substitute a new one. The court should do just that, and clarify that only where Second and Fifth District case law conflicts does it not apply to the Sixth DCA. If the Sixth DCA fails to withdraw its opinion, to all who litigate within its jurisdictional boundaries: beware the jurisprudenceless court, for there you will find litigants more than happy to argue issues long settled by the courts, for it only takes one district to create a circuit split.

[i] See In re Implementation of a Sixth District Court of Appeal and Realignment of the Jurisdictional Boundaries of Other Appellate Districts, Florida Administrative Order No. AOSC22-81, 1 (Nov. 1, 2022) (“Effective January 1, 2023, chapter 2022-163, Laws of Fla., authorizes a sixth district court of appeal; realigns the jurisdictional boundaries of the existing First, Second, and Fifth district courts of appeal; and authorizes seven new appellate judgeships.”).

[ii] See CED Cap. Holdings 2000 EB, LLC v. CTCW-Berkshire Club, LLC, No. 6D23-1136, 2023 WL 1487713, *3 (Fla. 6th DCA Feb. 3, 2023) (“[T]he Sixth District Court of Appeal is not bound by the precedent of any of its sister courts, including the Second and Fifth District.”).

[iii] See id. at *2.

[iv] See id. at *1–2. Compare Cozzo v. Cozzo, 186 So. 3d 1054, 1055–56 (Fla. 3d DCA 2015) (finding that invoice time sheets were sufficient, admissible proof of billable hours for attorney’s fees purposes), and Nants v. Griffin, 783 So. 2d 363, 366 (Fla. 5th DCA 2001) (holding that the attorney performing the work need not testify at hearing if other evidence is introduced at the hearing detailing the services performed), with Henderson v. OneWest Bank, FSB, 217 So. 3d 209, 210 (Fla. 1st DCA 2017) (holding that absent a stipulation or waiver, the party seeking fees should present testimony from the lawyer who performed the services or an authorized representative of the law firm), and Pridgen v. Agoado, 901 So. 2d 961, 962 (Fla. 2d DCA 2005) (holding that an award of attorney’s fees requires evidence in the form of testimony by the attorney performing services), and Tutor Time Merger Corp. v. MeCabe, 763 So. 2d 505, 506 (Fla. 4th DCA 2000) (holding that an award of fees must be supported by expert evidence, including the testimony of the attorney who performed the services).

[v] CTCW-Berkshire Club, LLC, 2023 WL 1487713 at *3 (emphasis added).

[vi] Fla. Const. Art. V § 1.

[vii] Point Conversions, LLC v. WPB Hotel Partners, LLC, 324 So. 3d 947, 960 (Fla. 4th DCA 2021); see also Bunkley v. State, 882 So. 2d 890, 924 (Fla. 2004) (Pariente, J., dissenting) (“A district court decision is never binding on . . . another district court.”).

[viii] See Va. Ins. Reciprocal v. Walker, 765 So. 2d 229, 233 (Fla. 1st DCA 2000); see also Soto v. State, 711 So. 2d 1275, 1276 n. 2 (Fla. 4th DCA 1998) (explaining that the decision of the Fourth DCA, in the absence of other binding precedent, bound the trial courts within the Second DCA); see also Miller v. State, 980 So. 2d 1092, 1094 (Fla. 2d DCA 2008) (“And, because the district courts of appeal in Florida are intended to be courts of final appellate jurisdiction, the opinion of a district court is binding on all trial courts in the state. . . . If there is unresolved conflict between the district courts, the trial court is bound by the precedent in its own appellate district.”) (internal citations omitted).

[ix] Fla. Stat. § 2.01 (2023).

[x] Shecut v. McDowel, 5 S.C.L. (1 Tread.) 35, 39 (S.C. Ct. L. 1812) (emphasis added).

[xi] State v. Charleston Bridge Co., 101 S.E. 657, 660 (S.C. 1919) (emphasis added).

[xii] Compare 28 U.S.C. §41 (listing the eleventh circuit as comprised of Alabama, Florida, and Georgia), with Fifth Circuit Court of Appeals Reorganization Act of 1980, Pub. L. No. 96-452, 94 Stat. 1994 (1980) (codified at 28 U.S.C. § 41) (reorganizing the Fifth Circuit into two circuits: the new Fifth Circuit and the newly founded Eleventh Circuit).

[xiii] Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc) (emphasis added).