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First Union National Bank v. Turney2/6/2003
4 So. 2d at 174. The context of the facts relevant to the determination of that evidentiary dispute in Turney I is simply different in kind from the present attorney's fee dispute. Respectfully, I do not believe that the majority has satisfied the threshold requirement for the "tipsy coachman" doctrine -- "the record before the trial court must support the alternative theory or principle of law." State Farm Fire & Casualy Co. v. Levine, 27 Fla. L. Weekly S1043, S1044 (Fla. Dec. 19, 2002).
Beyond the case law cited in this dissenting opinion, I must point out that both this court and the Florida Supreme Court have denied motions for attorney's fees filed by Turney in this matter and relying upon the identical theory now adopted by the majority. See First Union National Bank v. Turney, Case No. SC02-197 (Fla. Sept. 30, 2002) (unpublished order denying Turney's motion for attorney's fees after Turney succeeded in convincing the supreme court to decline to accept jurisdiction); First Union National Bank v. Turney, Case No. 1D00-2803 (Fla. 1st DCA Jan. 17, 2002) (unpublished order denying appellate attorney's fees and citing Scherer). I find it particularly significant that in the supreme court matter, Turney filed a motion for appellate attorney's fees relying upon section 737.627 and specifically alleging "the bad acts . . . found by the jury were committed, in part, after said statute was enacted." See Turney, Case No. SC02-197 (Appellee Turney's Motion for Attorney's Fees filed February 26, 2002). Now that the supreme court has rejected Turney's argument, I am at a loss to understand how the majority feels it is empowered to accept this argument. I would reverse the order awarding appellee attorney's fees.
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