11 Fla. L. Weekly Supp. 506a

Attorney’s fees — Insurance — Personal injury protection — Torts — Automobile accident — Injured passenger’s action against owner of vehicle which was not covered by personal injury protection policy — Timeliness of motion to tax fees — Where judgment and motion to tax fees were filed prior to effective date of rule 1.525, which established bright line requiring that motion to tax fees be filed within 30 days of filing of judgment, motion was only required to be filed within “reasonable time” — Delay of 50 days in filing not unreasonable — Further, defendant waived issue of timeliness not argued before lower tribunal — Prevailing plaintiff — As owner of vehicle not covered by PIP, defendant was personally liable for payment of benefits and had all rights and obligations of an insurer under PIP statute, including liability for award of costs and fees to prevailing plaintiff under section 627.428 — Plaintiff was not required to plead entitlement to attorney’s fees with specificity so long as basis for claim was specifically stated in post judgment motion for fees and costs — Justiciable issues — Where defendant consistently failed to respond to discovery attempts, default was entered due to defendant’s failure to file any response, second default was entered due to defendant’s failure to appear at mediation conference, and defendant’s repeated failure to appear for trial resulted in entry of final judgments in favor of plaintiff, there is sufficient evidence to support award of fees under section 57.105 — Contingency risk multiplier — No abuse of discretion in applying multiplier of 1.25 where application of multiplier was necessary to obtain counsel for impoverished plaintiff without stable residency, and chances of success were more likely than not at outset when neither plaintiff nor his counsel was aware that defendant did not have insurance

TERM PERSONNEL OF SARASOTA, INC., Appellant, v. GREGORY LAMAR, Appellee. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Case No. CVA1 02-45. L.C. Case No. CCO99-11768. February 17, 2004. Appeal from County Court for Orange County, C. Jeffery Arnold, Judge. Counsel: Edward P. Jordan II, Clermont, for Appellant. Gary E. Doane, Orlando, Appellee.

(Before Johnson, Thorpe, Conrad, JJ.)

ORDER AFFIRMING LOWER COURT’S ORDER

(PER CURIAM.)Appellant Term Personnel of Sarasota (“Term Personnel”), Defendant in the lower court, timely filed this appeal of the lower court’s final judgment awarding attorney fees and costs rendered on July 22, 2002, in favor of Gregory Lamar (“Lamar”). This Court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(c)(1)(A).

Factual and Procedural Background

On June 14, 1999, Lamar was injured while riding as a passenger in a motor vehicle allegedly owned by Term Personnel. At the time of the accident, Term Personnel did not have coverage for Personal Injury Protection benefits (“PIP”) on the vehicle as required by section 627.736, Florida Statutes. On November 17, 1999, Lamar filed suit against Term Personnel, wherein it alleged that Term Personnel failed to obtain PIP coverage for the vehicle and denied the payment of PIP benefits to which Lamar was entitled.¹

On December 22, 1999, the Clerk entered a default against Term Personnel for failure to file any responsive pleadings. On April 11, 2000, the lower court entered a default against Term Personnel for failure to appear for mediation pursuant to the parties’ stipulation to continue mediation. On May 4, 2000, Term Personnel filed a motion to dismiss and a motion to vacate default, alleging that it did not own the subject vehicle since ownership of the vehicle had been transferred to Mr. Ian Haythorne on April 7, 1999, two months before the motor vehicle accident.²

On May 15, 2000, when Term Personnel failed to appear for trial, the trial court entered a final judgment in favor of Lamar a total award of $3,310.30 with interest, and reserved jurisdiction to assess attorney’s fees and costs. However, that judgment was later vacated on July 20, 2000. On October 2, 2000, when Term Personnel again failed to appear for trial, the trial court entered a new final judgment within the same amount, and again reserved jurisdiction to set attorney’s fees and costs. Thereafter, on November 21, 2000, Lamar filed a post-judgment motion for taxation of attorney’s fees and costs. On December 18, 2000, Term Personnel filed a motion to set aside the final judgment which the trial court denied on May 1, 2001.

On June 17, 2002, the trial court awarded Lamar’s attorney a fee of $250 per hour for 41 hours, enhanced by a 1.25 risk multiplier. The trial court also taxed $185 in costs in favor of Lamar, and awarded $300 per hour for 5 hours to Lamar’s expert. On July 22, 2002, the trial court entered in favor of Lamar a total award of $14,497.50 to bear interest at 9% per annum from the date of the order. On August 1, 2002, Term Personnel filed its appeal of the trial court’s order.

Standard of Review

The uniqueness of the facts in this case present mixed questions of law and fact. Term Personnel seeks to have this Court reverse the lower court’s award of attorney’s fees as untimely filed. Graef v. Dames & Moore Group, Inc., 857 So. 2d 257, 258 n.1 (Fla. 2d DCA 2003) (finding that the standard of review on appeal “should be for abuse of discretion to determine whether the trial court erred by finding the filing timely under the circumstances”). In the alternative, Term Personnel seeks to have this Court reverse the award as excessive in light of the amount of recovery. See DiStefano Construction, Inc. v. Fidelity & Deposit Co. of Maryland, 597 So. 2d 248 (Fla. 1992) (stating that an award of attorney’s fees is a matter of judicial discretion that will not be disturbed on appeal absent a showing of clear abuse of discretion); Centex-Rooney Construction Co., Inc. v. Martin County, 725 So.2d 1255, 1258 (Fla. 4th DCA 1999).

Term Personnel also seeks to have this Court determine whether the lower court erred as a matter of law in its statutory interpretations by awarding attorney’s fees under section 627.248, Florida Statutes. Such interpretation is subject to a de novo review. See Cascella v. Canaveral Port Authority, 827 So. 2d 308 (Fla. 5th DCA 2002); Racetrac Petroleum, Inc. v. Delco Oil, Inc., 721 So. 2d 376 (Fla. 5th DCA 1998).

Discussion

Timeliness of Motion for Taxation of Attorney’s Fees

Term Personnel argues on appeal that Lamar’s post-judgment motion for attorney’s fees was untimely filed. Florida Rule of Civil Procedure 1.525 provides that a motion for taxation of attorney’s fees must be filed within 30 days after filing of the judgment. Fla. R. Civ. P. 1.525. However, this bright-line rule is inapplicable in this case because Rule 1.525 only became effective on January 1, 2001. In the present case, the final judgment was entered on October 2, 2000, and Lamar’s post-judgment motion for attorney’s fees was filed on November 21, 2000. Prior to the enactment of the bright-line rule found in Rule 1.525, post-judgment motions for attorney’s fees had to be filed within a “reasonable time.” See Bal Bay Realty, Ltd. v. Pepsomers Corp., 833 So. 2d 320, 321 n. 1 (Fla. 4th DCA 2003) (stating that “a determination of whether a post-judgment motion for attorney’s fees has been made in a reasonable time must be made based upon ‘all the facts and circumstances of a particular case’ ”).

Accordingly, a mere delay of 50 days in filing cannot be considered “unreasonable” under the facts of this particular case. See Shipley v. Belleair Group, Inc., 759 So. 2d at 28 (Fla. 2d DCA 2000) (finding motion for attorney’s fees filed 80 days after entry of final judgment not untimely). In addition, Term Personnel did not argue the timeliness of the motion at the lower tribunal, and therefore, this issue is waived. See Sanford v. Rubin, 237 So. 2d 134 (Fla. 1970) (holding that the party waived the right to challenge the allowance of attorney’s fees on appeal by failing to raise that issue at trial).

Section 627.736, Florida Statutes

Term Personnel’s second argument, that the trial court erred as a matter of law in awarding attorney’s fees, is based upon the assertion that it was not an “insurer” as contemplated by statutory definition or by implication. Section 627.733(4), Florida Statutes, provides in pertinent part that:

An owner of a motor vehicle with respect to which security is required by this section who fails to have such security in effect at the time of an accident shall have no immunity from tort liability, but shall be personally liable for the payment of benefits under section 627.736. With respect to such benefits, such an owner shall have all of the rights and obligations of an insurer under sections 627.730-627.7405.

§ 627.733(4), Fla. Stat. (2003) (emphasis supplied).

As the Supreme Court of Florida reasoned in Reid v. State Farm Fire & Casualty Co., 352 So. 2d 1172, 1173 (Fla. 1977), the purpose of the required security set forth in section 627.736, Florida Statutes, is to provide financial responsibility to pay any “no-fault” PIP benefits. As an owner of a motor vehicle, Term Personnel was required to obtain PIP benefits on the motor vehicle in which Lamar was riding as a passenger at the time of the accident. In the instant case, Term Personnel was the owner according to the vehicle registration at the time of the accident, and thus, it was subject to all of the rights and obligations of an insurer under sections 627.730-.7405, Florida Statutes.

The plain meaning and intention of section 627.736(8) make it clear that provisions of section 627.428, Florida Statutes, which mandate the award of costs and attorney’s fees to the prevailing insured, shall apply to PIP cases. See Nichols v. State Farm Mutual, 851 So. 2d 742, 750 (Fla. 5th DCA 2003) (holding that “Florida law is clear that in ‘any dispute’ which leads to judgment against the insurer and in favor of the insured, attorney’s fees shall be awarded to the insured”). In the instant case, Term Personnel’s failure to obtain coverage as the owner of the vehicle rendered it “self-insured.” Thus, Term Personnel was personally liable for all the benefits just as an insurance company would be.

Term Personnel argues that even if section 627.736 applies, Lamar would still not be entitled to attorney’s fees because it failed to plead entitlement to such fees with specificity under the statute. Term Personnel relies on Dealers Ins. Co. v. Haidco Investment Enterprises, Inc., 638 So. 2d 127 (Fla. 3d DCA 1994) and states that mere pleading in the “Wherefore” clause of the complaint is insufficient to meet the requirements of pleading with specificity for attorney’s fees set forth in Stockman v. Downs, 573 So. 2d 835 (Fla. 1991). Term Personnel also cites United Pacific Ins. Co. v. Berryhill, 620 So. 2d 1077 (Fla. 5th DCA 1993) to support its argument. However, the authorities cited by Term Personnel have been abrogated by the Supreme Court of Florida in Caufield v. Cantele, 837 So.2d 371, 378 (Fla. 2002), wherein it held that “the specific statutory or contractual basis for a claim for attorney’s fees need not be specifically pled, and that failure to plead the basis of such a claim will not result in waiver of the claim.” The Supreme Court of Florida also clarified its holding in Stockman, 573 So. 2d at 835, and stated that Stockman “does not expressly require a specific pleading of the statutory or contractual basis of a claim for attorney’s fees.” Caufield, 837 So. 2d at 377. Instead, Stockman suggests that merely pleading a claim for attorney’s fees is sufficient to put the opposing party on notice of a claim for fees and costs will be made at the conclusion of the matter, so long as the basis for the claim is specifically stated in the post-judgment motion for fees and costs. Caufield, 837 So. 2d at 378.

Accordingly, the analysis provided by Term Personnel in Dealers and United Pacific are altogether inapplicable to the instant case. Section 627.248 gives exclusive authority for an award of attorney’s fees in PIP case or in “any dispute” which leads to judgment against the insurer and in favor of the insured. See § 627.736(8), Fla. Stat. (2003). Consequently, as the prevailing party against Term Personnel, Lamar is entitled to attorney’s fees pursuant to section 627.428.

Section 57.105, Florida Statutes

Term Personnel asserts that merely losing on the pleadings is not a sufficient basis for an award of attorney’s fees under section 57.105, Florida Statues, and therefore, the award of attorney’s fees under section 57.105 is in error where there is no evidence of lack of justiciable issue. Section 57.105(1) specifically allows the prevailing party to recovery attorney’s fees from the opposing party at any time during a civil proceeding for raising unsupported claims and stonewall defenses. See § 57.105(1), Fla. Stat. (2003). As the First District Court of Appeal noted in Castaway Lounge of Bay County, Inc. v. Reid, 411 So. 2d 282 (Fla. 1st DCA 1982), section 57.105 was also intended to penalize stonewallers and foot-draggers alike.

In the instant case, the record shows that Term Personnel consistently failed to respond to discovery attempts by Lamar concerning the statutory benefits sought, including request for admissions on the necessity of the medical bills incurred by Lamar. Moreover, Term Personnel failed to file any response in the proceeding below, resulting in a default being entered. The lower court also entered a default against Term Personnel for failure to appear at a mediation conference. Further, Term Personnel failed to appear for trial on May 11, 2000, resulting in the trial court entering a final judgment in favor of Lamar. Lastly, Term Personnel failed again to appear for trial on October 2, 2000, resulting in the lower court entering another final judgment within the same amount in favor of Lamar.

The trial court’s assessment of these factors, coupled with other evidence presented at the fee hearing, plus the length and duration of the litigation, led to the trial court’s determination that an award for attorney’s fees was warranted under section 57.105. While the trial court did not address the specific factors upon which it relied to award the attorney’s fees, there is sufficient evidence in the record to support the court’s finding. The court’s finding, absent a transcript of the proceedings come to this Court clothed with the presumption of correctness. See Town of Jupiter v. Alexander, 747 So.2d 395, 400 (Fla. 4th DCA 1998) (stating that “the appellant court must determine whether, based upon the record, the proper analysis would have produced the result reached by the trial court”). Term Personnel presented no evidence to show that the trial court’s award of attorney’s fees was improper under section 57.105. See also Paul v. Charles, 816 So. 2d 837 (Fla. 5th DCA 2002) (citing Prymus v. Prymus, 753 So. 2d 742 (Fla. 3d DCA 2000) for the proposition that “without a transcript or proper substitute of the final hearing below ‘the presumption of correctness which attaches to [a] final judgment remains intact and . . . no abuse of discretion [can be found] in this regard’ ”).

Excessive Fees

Term Personnel’s final argument is that the amount of the award is excessive in light of the amount of the recovery has been addressed by the First District Court of Appeal in Baker v. Varela, 416 So.2d 1190 (Fla. 1st DCA 1982), wherein the First District held:

We do agree, in principal, that litigation expenses ought not to be out of proportion to the wrong sought to be redressed, or the benefits reasonably to be expected. But it is not realistic to expect or demand a balancing of expense and effort with the end results in every case. . . . A case that is unreasonably defended could well justify extraordinary prosecutorial efforts, and vice versa. However, no doubt that trial courts, as well as this court, will be sensitive to over-prepared and over-tried cases by either side, particularly when excessive costs or attorney’s fee demands are made.

Id. at 1192 (emphasis added).

At the fee hearing, Lamar presented testimony that the application of a risk multiplier was necessary to obtain competent counsel since Lamar was impoverished and did not have a stable residency. Moreover, the chances of winning were more likely than not at inception as neither Lamar nor his counsel was aware that Term Personnel did not have insurance at the initial conference. Therefore, the trial court correctly applied a 1.25 multiplier. See Standard Guaranty Ins. Co. v. Quanstrom, 555 So. 2d 828, 834 (Fla. 1990) (stating that the allowable multiplier is from 1.0 to 1.5 if the chance of success was more likely than not at the outset of the case); Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985).

Accordingly, Term Personnel has not demonstrated how the final award was unreasonable in light of the complexity and difficulty of the issues at the outset, and the number of reasonable hours expended in trying this case. Therefore, this court finds that the trial court did not abuse its discretion when determining that amount of the award.

Appellant’s Request for Oral Argument

Appellant has filed a request that oral argument be granted. While oral argument is discretionary with the Court, this Court finds that oral argument is unnecessary in this case and that oral argument be dispensed with pursuant to Florida Rule of Appellate Procedure 9.320.

Based upon the foregoing, it is hereby ORDERED AND ADJUDGED that the lower court’s order is AFFIRMED.

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¹Lamar did not own a motor vehicle of his own at the time of the accident, and therefore, sought PIP benefits from Term Personnel.

²Lamar’s Answer Brief states that Florida Department of Motor Vehicles official records show Term Personnel as the owner of the motor vehicle at the time of the accident. Additionally, this appeal involves the lower court’s award of attorney’s fees only. Term Personnel did not appeal the initial default entered against it in the action below.

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