11 Fla. L. Weekly Supp. 697a
Insurance — Personal injury protection — Attorney’s fees — Contingency risk multiplier — No abuse of discretion in awarding 2.4 multiplier where trial court found, based on provider/assignee’s unrebutted evidence, that chance of success at outset was less than 50%, that provider/assignee had pure contingency risk contract with attorney, and that applicable criteria and factors set forth in Rowe and Quanstrom warranted multiplier — Relief from judgment — Standing — Insurer’s argument in motion for relief from judgment that trial court lacked subject matter jurisdiction because there was no proper assignment of benefits to give provider standing lacks merit where motion was filed year and a half after entry of judgment, after payment of outstanding bill at issue, after agreement on lodestar attorney’s fees, and after award of multiplier — Motion also lacks merit because original dispute was action for breach of contract related to assignment to provider, provider’s standing was established once trial court found assignment valid, and time for appeal of that decision has passed — No abuse of discretion in denying motion for relief from judgment alleging that provider’s conduct was fraudulent and knowingly deceptive where motion was filed more than one year after entry of judgment — If insurer wishes to pursue fraud claim, it should be brought in civil action separate from instant action for assignment of claim for medical services provided — Appellate attorney’s fees awarded to provider
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a foreign corporation, Appellant, v. NU-BEST DIAGNOSTIC LABS, as assignee of Darlene Pierre, Appellee. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Case No. CVA 102-2. L.C. Case No. SCO98-7796. April 23, 2004. Appeal from the County Court, for Orange County, C. Jeffery Arnold, Judge. Counsel: Robert H. Oxendine and Gerard P. Duignan, Tampa, for Appellant. Donald McKeever and Bob Shea, McKeever, Albert & Barth, Winter Park, for Appellee.
(Before COHEN, SMITH, M., and GRINCEWICZ, JJ.)
FINAL ORDER AFFIRMING “FINAL JUDGMENT AWARDINGPLAINTIFF’S ATTORNEY’S FEES AND COSTS” AND FINALORDER AFFIRMING ORDER DENYING“DEFENDANT/APPELLANT’S AMENDED MOTION FORRELIEF FROM JUDGMENT” AND ORDER GRANTING APPELLEE’S MOTION FOR APPELLATE ATTORNEY’S FEES ANDORDER DENYING APPELLANT’S “MOTION FOR SANCTIONSPURSUANT TO SECTION 57.105, FLORIDA STATUTES”
(PER CURIAM.) Appellant, State Farm Mutual Automobile Insurance Company (State Farm), appeals the December 17, 2001, order which determined the multiplier and amount of attorney’s fees and costs to be awarded Appellee, Nu-Best Diagnostic Labs, as assignee of Darlene Pierre, (Nu-Best). State Farm also appeals the September 3, 2002, order Denying State Farm’s Amended Motion for Relief from Judgment. This Court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(c)(1)(A). We dispense with oral argument. Fla. R. App. P. 9.320.
Procedural and Factual Background
In the original action, Nu-Best brought suit against State Farm claiming breach of contract for State Farm’s nonpayment of a $650.00 cervical spine videofluoroscopy (motion x-ray) study performed on May 27, 1998. Nu-Best claimed standing to sue under a document appointing it as attorney-in-fact of State Farm’s insured, Darlene Pierre. On November 30, 1999, the trial court found this document executed by Pierre constituted a de facto assignment of benefits.
Discovery ensued and the case proceeded to trial. At the conclusion of the trial, the jury rendered a verdict in favor of Nu-Best finding that performance of the videofluoroscopy was medically necessary and awarding $650.00 in damages, plus interest. In its Final Judgment of February 14, 2001, the trial court reserved jurisdiction to determine attorney’s fees and costs. On March 26, 2001, State Farm issued a check to Nu-Best in satisfaction of the Final Judgment. No appeal of this Final Judgment was taken.
A fee hearing was held on October 17, 2001. Prior to the hearing, the parties agreed to a lodestar amount of $75,000.00, leaving the multiplier issue, costs, and expert fees as the only matters to be determined by the trial court. On December 17, 2001, the trial court issued its written order awarding a multiplier of 2.4 resulting in a total award of fees and costs in the amount of $207,746.49. On January 14, 2002, State Farm filed its Notice of Appeal of this final order awarding fees.
During the pendency of the appeal on the fee issue, State Farm filed an Amended Motion for Relief from Judgment pursuant to Florida Rule of Civil Procedure 1.540. This Court relinquished jurisdiction to the trial court, which held a hearing on the matter on August 28, 2002, and issued its order denying the Amended Motion on September 3, 2002; thereafter, this consolidated appeal proceeded.
Standard of Review
State Farm first appeals the lower court’s award of an attorney’s fee multiplier. Such an award is reviewed under an abuse of discretion standard. It is well settled that the determination of an award of attorney’s fees is within the sound discretion of the trial court and will not be disturbed on appeal absent a showing of a clear abuse of that discretion. DiStefano Construction, Inc. v. Fidelity and Deposit Company of Maryland, 597 So. 2d 248, 250 (Fla. 1992); Centex-Rooney Construction Co., Inc. v. Martin County, 725 So. 2d 1255, 1258 (Fla. 4th DCA 1999). The test for whether discretion has been abused is one of reasonableness. “[I]f reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion.” Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980).
Second, State Farm seeks relief, pursuant to Florida Rule of Civil Procedure 1.540, from the trial court’s September 3, 2002, order Denying State Farm’s Amended Motion for Relief from Final Judgment. Whether relief should be granted pursuant to Rule 1.540 is a fact-specific question, and the trial court’s ruling should not be disturbed on appeal absent a gross abuse of discretion. LPP Mortgage Ltd. v. Bank of America, N.A., 826 So. 2d 462 (Fla. 3d DCA 2002); Tilden Groves Holding, Corp. v. Orlando/Orange County Expressway, 816 So. 2d 658 (Fla. 5th DCA 2002). The discretion reposed in the trial judge by Rule 1.540 is of the broadest scope and in order to reverse a judge’s ruling thereunder, there must be a showing of a gross abuse of discretion. Edwards v. City of Fort Walton Beach, 271 So.2d 136 (Fla. 1972).
Further, review of an order denying relief requested under Rule 1.540(b) does not include review of the merits of the final decree sought to be vacated. The only concern is whether the trial court abused its discretion in denying relief from final judgment. Sheilds v. Flinn, 528 So. 2d 967 (Fla. 3d DCA 1988).
Discussion Award of the Contingency Fee Multiplier
State Farm argues that the trial court improperly awarded a contingency fee multiplier. Specifically, State Farm contends: 1) that there was no contingency fee agreement between Nu-Best and its counsel; 2) that the contingency fee contract introduced into evidence was actually entered into between Nu-Best’s counsel and another corporate entity; 3) that the evidence presented by Nu-Best in support of its claim for a contingency fee multiplier at the attorney’s fee hearing was insufficient to support an award of a contingency fee multiplier; and 4) that the trial court’s award of a 2.4 multiplier was not supported by the requisite findings of fact.
Nu-Best counters that the trial court did not abuse its discretion and properly awarded a contingency fee multiplier in the Final Judgment dated December 17, 2001. Specifically, contends Nu-Best, the trial court found the existence of a contingency fee agreement between Nu-Best and its counsel and Nu-Best presented unrebutted evidence to support an award of a 2.4 multiplier.
The court has discretion to apply a contingency risk multiplier to the lodestar amount in a case where the attorney for the plaintiff has agreed to accept a fee set by the trial court. Standard Guarantee Insurance Company v. Quanstrom, 555 So. 2d 828 (Fla. 1990). The current range and guidelines for determining the application of a contingency risk multiplier when success is unlikely at the outset of the case is a multiplier of 2.0-2.5. Quanstrom, 555 So. 2d at 834.
In entering the December 17, 2001, Final Judgment determining the multiplier and amount of attorney’s fees and costs to be awarded to Nu-Best, the trial court found that the chances of success for Nu-Best at the outset of the case was less than 50/50 and, after considering all of the factors and criteria set forth in Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985) and Quanstrom, found the applicable factors warranted a multiplier of 2.4. The trial court also found that Nu-Best had a pure contingency fee contract with its attorney. Consequently, the trial court awarded the agreed upon lodestar amount of $75,000.00, plus the multiplier of 2.4, court costs in the amount of $8,620.47, and pre-judgment interest from the date of the verdict, January 24, 2001, through entry of final judgment at ten percent, and an expert fee in the amount of $3,000.00, resulting in a total award of $207,746.49 to be recovered from State Farm.
Here, the trial court made the specific finding that Nu-Best’s chance of success at the outset was less than fifty percent. Moreover, Nu-Best presented expert testimony regarding the application of a contingency risk multiplier, as well as the appropriate amount of the multiplier. The evidence was unrebutted by State Farm.
Order Denying Amended Motion for Relief from Judgment
State Farm argues that the final judgment entered by the trial court is void because the trial court lacked subject matter jurisdiction since Nu-Best did not have legal standing to sue State Farm. State Farm’s argument is based on its position that there was no proper assignment of benefits to Nu-Best. State Farm also maintains that Nu-Best’s conduct was fraudulent and knowingly deceptive. Nu-Best counters that the trial court properly denied State Farm’s Amended Motion for Relief from Judgment because the record lacks any evidence that the trial court grossly abused its discretion.
It is axiomatic that subject matter jurisdiction is indispensable to a court’s power to adjudicate rights between parties. The lack of subject matter jurisdiction can be raised as a defense at any time, including after entry of final judgment or for the first time on appeal. Dept. of Revenue v. Daystar Farms, Inc., 803 So. 2d 892, 895 (Fla. 5th DCA 2002). Here, however, State Farm argues that Nu-Best lacked standing (and, therefore, the trial court lacked subject matter jurisdiction) a year and a half after the jury trial and the entry of final judgment, after payment of the outstanding medical bill at issue, after agreement of a lodestar amount for attorney’s fees, and after the trial court decided that a 2.4 multiplier was warranted in this case.
State Farm’s argument concerning a lack of subject matter jurisdiction also lacks merit because the original dispute in this case was an action for breach of contract related to the assignment of the right to receive payment of $650 from State Farm on behalf of the insured. There is no doubt that the county court had subject matter jurisdiction in this case. Chase Bank of Texas Nat’l Assn v. Dept. of Insurance, 860 So. 2d 472 (Fla. 1st DCA 2003) (finding that subject matter jurisdiction is the power lawfully conferred on the court to deal with the general subject involved in the action). Once the court found that the insured had made a proper assignment to Nu-Best, standing to bring suit was also established and the time to appeal that decision has long since passed.1 See Nedeau v. Gallagher, 851 So. 2d 214 (Fla. 1st DCA 2003) (finding that standing depends on whether a party has a sufficient stake in a justiciable controversy, with a legally cognizable interest which would be affected by the outcome of the litigation and which is not conjectural or merely hypothetical).
Turning to State Farm’s argument that Nu-Best’s conduct was fraudulent and knowingly deceptive: as noted previously, since review of an order denying relief requested under Rule 1.540(b) does not include review of the merits of the final decree sought to be vacated, the only concern is whether the trial court abused its discretion in denying relief from final judgment. Sheilds, 528 So. 2d 967. State Farm has failed to show any abuse of discretion on the part of the trial court in rendering the September 3, 2002, order, and improperly reargues the issue of standing, which was decided by the trial court four and one-half years ago and was not appealed at that time. Nor did State Farm appeal from the February 14, 2001, Final Judgment following the jury trial. Furthermore, State Farm’s original Motion for Relief from Judgment was not filed until May 28, 2002, fifteen and one-half months after the final judgment was entered.
Rule 1.540 provides, in pertinent part:
On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, decree, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party . . . .
. . . .
The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than 1 year after the judgment, decree, order, or proceeding was entered or taken.
Fla. R. Civ. P. 1.540(b).
Thus, even though State Farm’s motion was filed outside the one-year time limit, it was heard on its Amended Motion for Relief on August 28, 2002, and the motion was denied by written order on September 3, 2002. The original action here was for an assignment of claim for medical services provided. If State Farm wishes to pursue a claim of fraud, it should be brought via a separate civil action.
Attorney’s Fees
Nu-Best’s motion for attorney’s fees pursuant to sections 627.428 and 57.105, Florida Statutes, and Florida Rule of Appellate Procedure 9.400 is granted. State Farm’s “Motion for Sanctions Pursuant to Section 57.105, Florida Statutes,” is denied.
Conclusion
State Farm has failed to establish that the trial court clearly abused its discretion in rendering the December 17, 2001, judgment regarding the application and amount of the contingency risk multiplier. The trial court correctly applied all of the factors and criteria set forth in Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985) and Standard Guarantee Insurance Company v. Quanstrom, 555 So. 2d 828 (Fla. 1990) to substantiate the award of a 2.4 contingency fee multiplier. Further, State Farm offered no rebuttal to the evidence presented by Nu-Best at the hearing on fees.
State Farm has also failed to demonstrate that the trial court grossly abused its discretion in issuing the September 3, 2002, order Denying State Farm’s Amended Motion for Relief from Judgment.
Accordingly, it is hereby ORDERED and ADJUDGED that:
1) The trial court’s December 17, 2001, “Final Judgment Awarding Plaintiff’s Attorney’s Fees and Costs” is AFFIRMED;
2) The trial court’s September 3, 2002, order denying “Defendant/Appellant’s Amended Motion for Relief from Judgment” is AFFIRMED;
3) Appellee Nu-Best’s Motion for Attorneys’ Fees is GRANTED, the assessment of which is REMANDED to the lower court;
4) Appellee Nu-Best shall have costs taxed in its favor, if it files a proper motion pursuant to Florida Rule of Appellate Procedure 9.400(a) with the lower tribunal within thirty days of the issuance of the mandate in this matter;
5) Appellant State Farm’s “Motion for Sanctions Pursuant to Section 57.105, Florida Statutes,” is DENIED.
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1All of State Farm’s cited cases dealing with standing are cases brought in the administrative law context, usually involving citizen’s groups and land use, which is very different from a contract dispute wherein a party has provided a service for which it is seeking payment. The first case relied upon by State Farm is Askew v. Hold the Bulkhead-Save Our Bays, Inc., 269 So. 2d 696 (Fla. 2d DCA 1972), which was overruled by Save Sand Key, Inc. v. United States Steel, 281 So. 2d 572 (Fla. 2d DCA 1973), which was itself overruled by United States Steel v. Save Sand Key, Inc., 303 So. 2d 9 (Fla. 1974) (holding that standing to sue on the part of a nonprofit citizens’ group was not present absent an allegation of a special injury differing in kind from that suffered by the public generally).
Next, State Farm, at the hearing on its Amended Motion for Relief from Judgment, stated to the trial court, “So I’d also like to cite for the Court, South Broward Hospital District versus the Department of Health & Rehabilitative Services, 385 So. 2d 1094. This is a Fourth District case, 1980, in which the Court squarely held:
As a matter of accepted Florida law that standing is equated with subject matter jurisdiction.”
Appellee’s Answer Brief, Appendix 6, p. 20, hearing transcript.
Actually, the court in South Broward Hospital held that the medical center which had unsuccessfully applied for a certificate of need had standing to request a review of HRS’s decision. The statement referred to by State Farm is not the holding, but is in the dissenting opinion, which reads, “[s]tanding is equated with subject matter jurisdiction” and cites to Askew, which, as noted, was overruled. 385 So. 2d at 1097.
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