
    Robert John WINICKI, Appellant, v. Robert A. MALLARD, et al., Appellees.
    No. AT-178.
    District Court of Appeal of Florida, First District.
    Nov. 21, 1983.
    Certiorari Denied Feb. 21, 1984. See 104 S.Ct. 1286.
    See also, 436 So.2d 926.
    
      Robert John Winicki, pro se.
    Barbara Staros Harmon, Asst. Atty. Gen., Tallahassee, for appellees Randy Miller and Jim Smith, Atty. Gen.
    Linda Logan Bryan, Asst. Gen. Counsel, Jacksonville, for appellees Robert A. Mallard and Lynwood Roberts.
   ON REHEARING

THOMPSON, Judge.

Winicki, an attorney litigant proceeding pro se, filed a complaint in circuit court requesting that the five-year consecutive residency requirement of §§ 196.-031(3)(d), .031(3)(e), Fla.Stat. be declared violative of the United States Constitution. He alleged that the Florida court had jurisdiction in matters relating to property transactions, that his suit was a civil action for monetary and injunctive relief pursuant to 42 U.S.C. § 1983 and that he was entitled to costs and attorney’s fees pursuant to 42 U.S.C. § 1988. The circuit court ruled that §§ 196.031(3)(d), .031(3)(e) violated the right to equal protection under the United States Constitution, and the defendants appealed to this court. This court affirmed the circuit court for the reason enunciated in and on the authority of Osterndorf v. Turner, 426 So.2d 539 (Fla.1982). In Ost-erndorf the Supreme Court found,' based solely on the equal protection clause of the Florida Constitution, that the durational residency requirement of §§ 196.-031(3)(d), .031(3)(e) was unconstitutional. The lower court denied Winicki’s motion for attorney fees, citing Cofield v. City of Atlanta, 648 F.2d 986 (5th Cir.1981), and Winicki appealed this denial. The denial of attorney fees was per curiam affirmed without written opinion by this court. Winicki seeks rehearing, which for the reasons below we deny.

Winicki contends that the sole issue in this case is whether 42 U.S.C. § 1988 provides for an award of attorney fees to a prevailing party who is a licensed attorney representing himself. Winicki argues that it is clear from Cazalas v. United States Department of Justice, 709 F.2d 1051 (5th Cir.1983) that Co field did not prohibit the award of attorney fees to a licensed attorney representing himself but expressly left this issue open. Although Cofield, which involved a non-attorney pro se litigant and left open the question of whether attorney fees should be awarded under the Civil Rights Attorney’s Fees Awards Act to an attorney litigant proceeding pro se, does not support the trial court’s denial of Winicki’s motion for attorney fees, we conclude the trial court properly denied the motion for attorney fees. See generally Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1980).

Under 42 U.S.C. § 1988 the court, in its discretion, may allow the prevailing party a reasonable attorney’s fee. In cases such as Cazalas, dealing with entitlement to a fee award in Freedom of Information Act (5 U.S.C. § 552) cases, two of .the factors considered by the courts is whether the pro se attorney litigant has performed a service to the public generally or whether it is a personal benefit to the pro se litigant. Although this clearly was not a Freedom of Information Act case, it seems that the test of whether the pro se attorney litigant has performed a service which would benefit the public generally or whether he has merely performed a service which would benefit himself personally would be important in a case such as this case. Although Winicki modestly claims credit for having the courts declare the act unconstitutional, the fact remains that there were at least two other cases, both brought by attorney litigants, proceeding pro se, involving exactly the same question already before Florida appellate courts when Winicki filed his complaint. See Maguire v. Schultz, 426 So.2d 1303 (Fla. 2d DCA 1983); Osterndorf v. Turner, 411 So.2d 330 (Fla. 5th DCA 1982). Additionally, Osterndorf was on certiorari to the Supreme Court of Florida before the circuit court opinion in this case was obtained. It was obvious that Osterndorf would decide the precise constitutional question raised by Winicki long before a final decision could be reached in his ease. The only benefit that could possibly be derived from pursuing his case would be a personal benefit to protect his own interest. Accordingly, even if the question should be decided in accordance with federal cases interpreting federal law, the attorney’s fees were properly denied because of the lack of public benefit derived from Winicki’s actions. Otherwise, all of the attorneys in the state with standing could file suits pro se to declare a state law unconstitutional and, if one is successful, all could collect substantial fees.

In addition, the plaintiff elected to file this action in the state court alleging violation of the federal law and federal constitution. The correctness of the lower court’s finding that §§ 196.031(3)(d), .031(3)(e) was unconstitutional was expressly upheld by this court on the basis of Osterndorf, which was based solely on the Florida Constitution, not on the United States Constitution or -42 U.S.C. § 1983. Under these circumstances, Florida law, not federal law should apply and there is no basis for the award of an attorney’s fee under Florida law in this case.

Winicki made it clear in his motion for attorney’s fees that he was exposing his federal statutory right to attorney’s fees to. the circuit court only because of the possible application of 28 U.S.C. § 1341, or the doctrines of abstention and that he intended, should the state court hold against him, to return to the federal district court for disposition of his federal claims. If he has a claim for attorney’s fees in federal court, which it does not appear he would even under federal law, then he is free to pursue it.

Rehearing denied.

WIGGINTON, J., concurs.

ERVIN, C.J., dissents.

ERVIN, Chief Judge,

dissenting.

I respectfully dissent. The trial court, adopting the reasoning of Cofield v. City of Atlanta, 648 F.2d 986 (5th Cir.1981), summarily denied Winicki’s motion for attorney’s fees without reaching the merits of that motion. On further reflection, I am unable to agree with the majority’s affirmance of the denial and would, instead, reverse and remand the case to the lower court to decide on the merits whether the motion should be granted.

Cofield reflects the general view that a pro se, non-attorney litigant- may not recover attorney’s fees under the various federal statutes providing therefor. For example, attorney’s fees have been denied such litigants when sought in civil rights cases pursuant to 42 U.S.C. § 1988, see Cofield; Pitts v. Vaughn, 679 F.2d 311 (3d Cir.1982); Owens-El v. Robinson, 694 F.2d 941 (3d Cir. 1982); as well as in suits brought under the Freedom of Information Act (FOIA), see Clarkson v. Internal Revenue Service, 678 F.2d 1368 (11th Cir.1982), and under the federal Privacy Act, see Barrett v. Bureau of Customs, 651 F.2d 1087 (5th Cir.1981).

A different result has been reached, however, in cases wherein the litigant is an attorney appearing in propria persona. The various state courts that have sustained the propriety of awarding attorney’s fees to a pro se attorney litigant are divided on the issue, see Annotation 78 A.L.R.3d 1119 (1977), but the weight of authority appears to support the award of such fees if permitted by statutory authority. Following what it terms the “narrow majority of jurisdictions”, Florida’s Third District Court of Appeal upheld an award of attorney’s fees to an attorney appearing on his own behalf in an action seeking damages for securities violations under Chapter 517, Florida Statutes. Quick & Reilly, Inc. v. Perlin, 411 So.2d 978, 980 (Fla. 3d DCA 1982). Federal courts, faced with the same issue, have similarly awarded fees to pro se attorney litigants if allowed by federal statutes, despite the courts’ denial of such fees to non-attorney litigants. See Cuneo v. Rumsfeld, 553 F.2d 1360 (D.C.Cir.1977) (pro se attorney litigant in FOIA suit entitled to fees); Ellis v. Cassidy, 625 F.2d 227 (9th Cir.1980) (pro se attorney defendants entitled to fees under § 1988 as prevailing parties in frivolous and vexatious lawsuit). Indeed, several courts, in denying fee requests from non-attorney pro se litigants, have suggested a different result would be required if the litigant had been an attorney. See Pitts, 679 F.2d at 313; Barrett, 651 F.2d at 1089; Owens-El, 694 F.2d at 943; Clarkson, 678 F.2d at 1371.

As the majority acknowledges, the above distinction between attorney and non-attorney pro se litigants has likewise been recognized by the Fifth Circuit Court of Appeals. Cofield, upon which the trial court relied, while observing that the successful pro se plaintiff was not an attorney, denied the request for fees, finding that the congressional purpose in enacting section 1988 was “to enable and encourage a wronged person to retain a lawyer.” 648 F.2d at 988. In the case at bar, we previously affirmed without opinion the lower court’s order denying attorney’s fees, which was in turn based upon the analysis stated in Cofield. The lower court’s order never reached the merits of the question of Winicki’s entitlement to such fees.

Appellant, on motion for rehearing, has brought to our attention the case of Cazalas v. United States Department of Justice, 709 F.2d 1051 (5th Cir.1983), which is a more recent refinement of the Cofield rule, wherein the court held that an award of attorney’s fees may appropriately be granted to an attorney acting in propria persona. The opinion distinguished between prior decisions in which the question of the propriety of awarding fees to pro se attorney litigants had not been decided, expressly noting that Cofield had “left open the same question under the Civil Rights Attorney’s Fees Awards Act.” 709 F.2d at 1055 n. 8.

Despite the Fifth Circuit’s unambiguous acknowledgment that a distinction should be drawn between attorney and non-attorney pro se litigants when assessing the propriety of attorney’s fee awards, and that court’s specific statement that Cofield did not decide the issue as it relates to the propriety of such awards under section 1988, the majority would now affirm the trial court’s denial of fees by referring to Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979), evidently for the proposition that “[e]ven when based on erroneous reasoning, a conclusion or decision of a trial court will generally be affirmed if the evidence or an alternative theory supports it.” Id. at 1152. The majority itself then proceeds to advance such a theory by addressing the merits of Winicki’s claim and thereupon concludes, on several grounds, that his claim is without merit.

The obvious distinction between Apple-gate and the case at bar is that the trial court in Applegate, before which a non-jury trial was held, reached the merits of the dispute, albeit without benefit of a court reporter’s presence. Because the appellant was unable to bring forward an adequate record to support its contention that reversible error had occurred, there was no recourse for an appellate court to do other than affirm the trial court’s decision. In the case before us, however, there is nothing to suggest that the trial court considered or determined the merits of Win-icki’s claim. In my judgment it is therefore improper at this juncture for the majority to acknowledge that Cofield does not support the trial court’s denial of fees, but then affirm on the merits of the claim, when the merits were never considered by the lower court and therefore could not be considered as an alternative basis for its decision to deny his request for attorney’s fees.

I would therefore grant rehearing and reverse the trial court’s denial of Winicki’s motion for attorney’s fees under section 1988, and remand for the purpose of allowing that court to exercise its discretion on the merits of the issue as to whether Win-icki is entitled to recover a reasonable attorney’s fee. 
      
      . The majority relies on federal cases interpreting the Freedom of Information Act (specifically 5 U.S.C. § 552), requiring as a precondition to an award of fees that an attorney perform a service to the public generally. This requirement may not be applicable, however, to actions instituted under section 1988. Coñeld itself questions the persuasiveness of opinions construing the Freedom of Information Act and those involving the civil rights statutes:
      For example, it seems to us that actions brought under the Freedom of Information Act are likely to be brought by pro se litigants; damages are generally not involved and the relief sought is simply the release of information. Furthermore, section 552(a)(4)(F) may suggest that an award of attorney’s fees may be in part punitive, “a useful sanction for unfounded resistance to a disclosure request....” Lovell v. Alderete, 630 F.2d at 437 (Thomas A. Clark, Circuit Judge, dissenting). There is no suggestion that an award of section 1988 attorney’s fees should be in any way punitive.
      648 F.2d at 988 n. 4.
     