County Civil Court:  ATTORNEY’S FEES – settlement of claim – Florida Statute, section 627.428(1), provides that an insured is entitled to attorney’s fees upon rendition of judgment in insured’s favor – Civil Rule of Procedure Rule 1.525 requires a party to seek attorney’s fees within 30 days after filing of the judgment – trial court erred in denying insured’s attorney’s fees based on reasonable time rule – trial court’s decision must be affirmed since no final judgment had yet been entered - order affirmed, in part.  Chuong v. Progressive Express Ins. Co., Appeal No. 05-0068AP-88A (Fla. 6th Cir. App. Ct. Oct. 4, 2006). 

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

ROBERT CHUONG, D.M.D., M.D., P.A.,

(ASSIGNOR:  MONTEFORTE, LAUREN),

                                    Appellant,

vs.                                                                                     Appeal No. 05-0068AP-88A

                                                                                         UCN522005AP000068XXXXCV

 

 

PROGRESSIVE EXPRESS INSURANCE

COMPANY,

                                    Appellee.

____________________________________________/

 

Appeal from Order Denying Attorney’s Fees and Costs

Pinellas County Court

Judge Henry J. Andringa

 

Susan L. Lawson, Esquire

Susan W. Fox, Esquire

Attorneys for Appellant

 

Betsy E. Gallagher, Esquire

Michael C. Clarke, Esquire

Attorneys for Appellee

 

 

 

ORDER AND OPINION

 

            THIS CAUSE came before the Court on appeal, filed by Robert Chuong, D.M.D., M.D., P.A. (Chuong), from the Order Denying Attorney’s Fees and Costs, entered August 10, 2005, in favor of Progressive Express Insurance Company (Progressive).  Upon review of the briefs, the record and being otherwise fully advised, the Court affirms, in part, the trial court’s ruling as set forth below.

            The underlying cause of action commenced when Choung filed suit, on July 30, 2003, against Progressive to recovery PIP benefits based on an assignment from Progressive’s insured, Lauren Monteforte.  The parties settled the case in November 2003.  The settlement letter, dated November 12, 2003, states:

Please place your signature and the date below to confirm our agreement to settle this matter for $ 600 for all remaining PIP benefits and $ 223.84 in interest due plus reasonable attorney’s fees and costs to be agreed upon or decided by the court . . . A Voluntary Dismissal With Prejudice will be entered in lieu of a release form and shall specifically state that this is [sic] settlement is for all dates of service from August 8, 2002 through February 4, 2003. 

 

On June 15, 2004, Choung filed Plaintiff’s Motion for Attorney’s Fees and Costs

arguing that he was entitled to attorney’s fees and costs pursuant to Florida Statute, section 627.428, and citing to Wollard v. Lloyd’s and Companies of Lloyd’s, 439 So.2d 217 (Fla.  1983).  Progressive responded that Choung was not entitled to attorney’s fees and costs as he had failed to timely file a motion for such fees pursuant to Florida Rule of Civil Procedure, Rule 1.525.  Before the hearing was held on Choung’s Motion for Attorney’s Fees and Costs, Choung filed several more motions, including a Motion for Entry of Final Judgment Pursuant to Settlement Agreement/Confession of Judgment.

On July 25, 2005, the trial court considered the parties’ arguments on Plaintiff’s Motion for Attorney’s Fees and Costs.  Thereafter, on August 10, 2005, the trial court entered an order denying the Motion making the following findings:

            A.  The case was settled in November/December, 2003.

            B.  Plaintiff did not move for fees until June 15, 2004.

            C.  The fees were not sought within a reasonable time.

D.  The Court makes no finding as to whether the fees are time barred by     

      Fla.R.Civ.P. 1.525.

 

From this order, Chuong filed his Notice of Appeal. 

            Before this Court, Choung argues that the trial court erred in refusing to enter final judgment or enforce the settlement agreement and in finding that Choung’s motion for attorney’s fees and costs was untimely prior to the entry of final judgment or dismissal.  Progressive responds that the trial court correctly determined that Choung’s motion was not filed in a reasonable time nor filed within thirty days of judgment as required by the Florida Rules of Civil Procedure, Rule 1.525. 

This Court’s standard of review is de novo.  See Graef v. Dames & Moore Group, Inc., 857 So.2d 257, 258 (Fla. 2d DCA 2003).  The Court finds that, even in the absence of a transcript, the trial court’s ruling is erroneous.  See Kanter v. Kanter, 850 So.2d 682, 684 (Fla. 4th DCA 2003).  However, as further set forth below, the trial court’s ruling must be sustained.

            Florida Statutes, section 627.428(1), provides that an insured is entitled to attorney’s fees upon rendition of judgment in the insured’s favor.  The insurer’s settlement of the claim operates as the functional equivalent of a confession of judgment or verdict in favor of the insured which entitles the insured to attorney’s fees pursuant to section 627.428(1).  See Wollard, 439 So.2d at 218; see also United Automobile Insurance Company v. Zulma, 661 So.2d 947, 949 (Fla. 4th DCA 1995).  Section 627.428 does not set forth a specific time-frame in which an insured must file a motion for fees.  Prior to the enactment of Rule 1.525,[1] which went into effect on January 1, 2001, a party was required to file a motion for fees within a “reasonable time” after final judgment was entered.  See Stockman v. Downs, 573 So.2d 835, 838 (Fla. 1991); see also Swift v. Wilcox, 924 So.2d 885, 887 (Fla. 4th DCA 2006); Bass v. State Farm Life Insurance Company, 649 So.2d 924, 925 (Fla. 3d DCA 1995).

However, Rule 1.525 has eliminated the reasonable time rule and established bright-line requirements that govern the timeliness of post-trial motions for fees.  See Swift, 924 So.2d at 887; see also Landmark at Hillsboro Condominium Assocation, Inc. v. Canelora, 911 So.2d 1272, 1273 (Fla. 4th DCA 2005); Gulf Landings Association, Inc. v. Hershberger, 845 So.2d 344, 346 (Fla. 2d DCA 2003).  Rule 1.525 states:  “Any party seeking a judgment taxing costs, attorneys’ fees, or both shall serve a motion no later than 30 days after the filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal.”  The Second District Court of Appeal has consistently enforced the bright-line rule while acknowledging that the consequences are sometimes harsh.  See Gulf Landings. 845 So.2d at 346; see also Italiano v. Italiano, 920 So.2d 694, 697-98 (Fla. 2d DCA 2006); Caldwell v. Finochi, 909 So.2d 976, 978 (Fla. 2d DCA 2005); Clampitt v. Britts, 897 So.2d 557, 558 (Fla. 2d DCA 2005); Lyn v. Lyn, 884 So.2d 181, 183-84 (Fla. 2d DCA 2004).

In this case, the Court finds that there is no basis to create an exception to the bright-line rule established by Rule 1.525 in PIP cases.[2]  The holding of Wollard does not dispose of these requirements.  Hence, the Court finds that the trial court erred, as a matter of law, in applying the reasonable time standard instead of the time requirements set forth in Rule 1.525. 

Nonetheless, the trial court’s decision must be affirmed.  See Robertson v. State, 829 So.2d 901, 907 (Fla. 2002)(explaining the tipsy coachman doctrine that allows an appellate court to affirm the trial court if the trial court’s ruling is supported by an alternative theory or principle of law).  Rule 1.525 provides that a motion for attorney’s fees must be filed 30 days “after the filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal.”  (emphasis added).  The record clearly shows that there has not been a final judgment filed with the Clerk of Court, nor a voluntary dismissal served, that would trigger the 30-day period for filing a motion for fees.  See Manimal Land Company v. Randall E. Stofft Architects, P.A., 889 So.2d 974, 975 (Fla. 4th DCA 2004)(holding that motion for Rule 1.525 fees must be filed within thirty days of filing a final judgment with the clerk).  The Clerk’s docket also reflects that the case is still open. 

  Further, the parties’ settlement agreement demonstrates the parties’ intent that if the matter of attorney’s fees could not be resolved it would be submitted to the trial court, such that additional judicial labor was anticipated.  See Rollins Fruit Company, Inc. v. Wilson, 923 So.2d 516, 520 (Fla. 2d DCA 2005)(stating that “[a] judgment is not final where further judicial labor is required or contemplated to end the litigation between the parties”).  Hence, even if the trial court had ruled favorably on Choung’s motion for attorney’s fees, such decision would also have been reversible error since a motion for fees can only be filed after the entry of the final judgment.[3]  See Italiano, 920 So.2d at 696; Lyn, 884 So.2d at 184.  However, Choung is not precluded from timely filing a motion for attorney’s fees once final judgment is entered.  See Rollins Fruit Company, Inc., 923 So.2d at 520. 

 

 

Therefore, it is,

            ORDERED AND ADJUDGED that the Order Denying Attorney’s Fees and Costs is affirmed, in part, as set forth above.  It is further

            ORDERED AND ADJUDGED that the Appellant’s Motion for Attorneys’ Fees is denied.

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ______ of September 2006.

 

 

                                                ________________________________

                                                JOHN A. SCHAEFER

                                                Circuit Judge, Appellate Division

 

 

 

 

 

 

______________________________                        ______________________________

LAUREN LAUGHLIN                                              BRANDT C. DOWNEY, III

Circuit Judge, Appellate Division                                   Circuit Judge, Appellate Division

 

Copies furnished to:

Judge Henry J. Andringa

 

Susan L. Lawson, Esquire

230 E. Davis Blvd., Suite 200

Tampa, FL  33606

 

Susan W. Fox, Esquire

112 N. Delaware Ave.

Tampa, FL  33606

 

Betsy E. Gallagher, Esquire

Michael C. Clark, Esquire

201 N. Franklin Street, Suite 2550

Tampa, FL  33602



[1] As this matter was litigated in County Court, not Small Claims Court, there is no dispute that the Florida Rules of Civil Procedure applied to the cause of action below.

[2] While there is no appellate case law specifically on the application of Rule 1.525 to section 627.428, the Court finds that at least one circuit appellate court has found that Rule 1.525 applies to PIP cases when the final judgment was entered after January 1, 2001.  See Term Personnel of Sarasota, Inc. v. Lamar, 11 Fla. L. Weekly Supp. 506 (Fla. 9th Cir. App. Ct. Feb. 17, 2004).

 

[3] While not applicable to the facts of this case, the Court notes that there is significant disagreement within the District Courts as to the parameters of Rule 1.525, including whether a motion for fees filed before entry of a final judgment is a valid motion.  See Italiano, 920 So.2d at 694; see also Bryne-Henry v. Hertz Corporation, 927 So.2d 66, 68 (Fla. 3d DCA 2006).  This Court is bound by the decisions of the Second District Court of Appeal.  See Auto Owners Insurance Company v. Marzulli, 788 So.2d 1031, 1034 (Fla. 2d DCA 2001).