11 Fla. L. Weekly Supp. 704b
Attorney’s fees — Insurance — Personal injury protection — Justiciable issues — Timeliness of motion filed after voluntary dismissal of case — Version of section 57.105(4) under which insurer sought fees, which allows opportunity to cure frivolous claim and effectively precludes relief thereunder after resolution of case, is inapplicable because it did not become effective until after PIP suit was filed — Had statute been applicable, trial court’s decision to deny fees would still be correct because insurer failed to follow requirements of statute — Applicable earlier version of statute which does not contain cure provision allows motions thereunder to be filed after resolution of case, but motion filed more than 30 days after service of notice of voluntary dismissal is untimely under rule 1.525
EXPLORER INSURANCE COMPANY, Appellant, vs. UNITED PRESCRIPTION SERVICES, INC., as assignee of ANGELA CHIN, Appellee. Circuit Court, 13th Judicial Circuit (Appellate) in and for Hillsborough County. Case No. 03-7655, Division X. L.C. Case No. 02-9479. May 17, 2004. Claudia R. Isom, Judge. Review of final order of the County Ct., Hillsborough County. Counsel: Karen A. Barnett and Deborah L. Appel, Barnett & Associates, P.A., Tampa, for Appellant. Mark Tischhauser, Tampa, for Appellee.
Appellant appeals a final judgment denying it attorney’s fees pursuant to section 57.105, Florida Statutes. Based upon our review, we affirm the decision of the trial court.
The facts are as follows. Appellant’s insured, Angela Chin was insured under this policy of insurance on December 16, 2000, when she was involved in a motor vehicle accident. After the accident, she sought treatment and services from various medical providers, including Appellee. Angela Chin’s medical providers, including Appellee, submitted claims to Appellant for the services and treatment provided to Ms. Chin. Appellant made payments for reasonable and necessary services and treatment provided to Ms. Chin.
Appellee submitted two Health Insurance Claim forms (hereinafter “claim forms”) to Appellant for prescriptions provided to Ms. Chin on February l and February 12, 2001. Appellee remitted payment to Appellee within 30 days of receiving these claim forms. A month later, Appellee submitted the same two claim forms to Appellant. Appellant again paid the claims. Appellant later determined that it had overpaid Appellee by $95.64.
On March 22, 2001, Appellant paid all remaining personal injury protection insurance benefits available under Ms. Chin’s policy of insurance in the total amount of $10,000.00. Appellee, as the alleged assignee of Ms. Chin, filed an action in the County Court for Hillsborough County on April 23, 2002 seeking payment of personal injury protection benefits under Ms. Chin’s insurance policy. Appellee alleged in its Complaint that the amount at issue in the litigation did not exceed $99.99. The evidence presented in the trial court showed Appellee only sought to recover benefits for prescriptions provided to Ms. Chin on May 11, 2001. The total amount at issue for the prescriptions provided to her on May 11, 2001 was $61.34, or 80 percent of $76.67.
Appellant filed a Motion for Summary Judgment and then an Amended Motion for Summary Judgment. Appellant argued that it was entitled to summary judgment because Appellant’s insurance benefits had been exhausted prior to suit and because no monies were owed to Appellee.
On August 28, 2002, prior to hearing on the motion for summary judgment, Appellee filed Plaintiff’s Notice of Voluntary Dismissal Without Prejudice. On October 9, 2002, Appellant served its Motion for Entitlement to Attorney’s Fees upon Appellee, seeking attorney’s fees pursuant to §57.105 of the Florida Statutes. The trial court heard argument on the motion on May 7, 2003, and on July 29, 2003, the trial court denied Appellant’s request for attorney’s fees and costs under §57.105 of the Florida Statutes. Appellant timely filed this appeal. The standard of review for a trial court’s award of attorney’s fees is abuse of discretion. Gahn v. Holiday Property Bond, Ltd., 826 So.2d 423 (Fla. 2d DCA 2002).
On a procedural level, Appellant argues that it was entitled to seek Section 57.105 fees after Appellee took a voluntary dismissal of its complaint, and on a substantive level that the case was completely unsupported by material facts necessary to support the claim at the time suit was initiated. Appellee counters that Appellant incorrectly sought relief under the newer version of the statute and that it precludes motions for Section 57.105 fees after a suit is voluntarily dismissed. Appellee also asserts that Appellant is precluded from seeking relief in this Court under the correct version of the statute under the invited error doctrine.
On a substantive level, we can conceive of no better reason than the absence of a case in controversy upon which to base an award of section 57.105 attorney’s fees. However, our holding in this case is based on procedural grounds.
Appellant filed for attorney’s fees pursuant to 57.105 (2002). Appellee is correct that subsection (4) of this version of Section 57.105, which provides an avenue for the party presenting a frivolous claim to cure, effectively precludes relief thereunder after resolution of the case. Having become effective July 1, 2002 — after the instant suit was filed — it is inapplicable to this case. Had it been applicable, the trial court’s decision to deny fees would still be correct because Appellant failed to follow the requirements of subsection (4).
Here, the earlier version was still applicable to the motion. It does not contain the cure provision found in the 2002 statute, thus allowing motions thereunder to be filed after resolution of the case. Notwithstanding the foregoing, however, Appellant’s motion for attorney’s fees was untimely. Pursuant to Florida Rule of Civil Procedure 1.525, which became effective January 1, 2001, Appellant was required to serve its motion for fees within 30 days of service of the Notice of Voluntary Dismissal. Rule 1.525 is applicable to Section 57.105 fees to the extent relief may be sought after final judgment or dismissal. See generally Fisher v. John Carter and Associates, Inc., 864 So.2d 493 (Fla. 4th DCA 2004). The Notice of Voluntary Dismissal was served on August 26, 2002, and filed August 28, 2002. Appellant did not serve its motion for fees until October 9, 2002, more than 30 days after the notice and dismissal.
Although the specific time-of-service issue was not raised on appeal, the decision of the trial court should be upheld if there is any basis which would support the judgment in the record. See Dade County School Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla. 1999). “[T]here must have been support for the alternate theory or principle of law in the record before the trial court.” Robertson v. State, 829 So.2d 901 (Fla. 2002). See also First Union Nat. Bank v. Turney, 839 So.2d 774 (Fla. 1st DCA 2003) and Home Depot U.S.A. Co., Inc. v. Taylor, 676 So.2d 479, 480 (Fla. 5th DCA 1996).
The untimeliness of the motion for fees is clearly evident in the record. On an issue of law, this court is not bound by the reasoning of a trial court if the record reveals an alternative basis upon which to uphold the order or judgment. Hester v. Gatlin, 332 So.2d 660 (Fla. 2d DCA1976). Because the result is correct, we cannot conclude that the trial court abused its discretion.
It is therefore ORDERED that the decision of the trial court is AFFIRMED. In light of our decision it is further ORDERED that Appellant’s motion for appellate attorney’s fees and costs is DENIED. (Levins and Stoddard, JJ., concur.)
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