11 Fla. L. Weekly Supp. 706a
Attorney’s fees — Insurance — Personal injury protection — Justiciable issues — Where trial court awarded attorney’s fees to be paid by attorney and insured, and attorney moved for rehearing solely on his own behalf, motion for rehearing did not suspend rendition of final judgment awarding fees as to insured and, therefore, notice of appeal brought by attorney on insured’s behalf 30 days after denial of motion for rehearing was untimely — To extent that attorney appeals his liability under terms of judgment, attorney’s interests have not been properly brought before court where either party status was conferred on attorney by order awarding fees or attorney became party by asserting own interest when he moved for rehearing after withdrawal from representation of insured, yet appeal was filed only in name of insured — Appeal dismissed
WAYNE ALEXANDER, Appellant, vs. AUTO CLUB SOUTH, Appellee. Circuit Court, 13th Judicial Circuit (Appellate) in and for Hillsborough County. Case No. 03-5132, Division X. L.C. Case No. 98-7388-SC-J. March 15, 2004. James M. Barton, II, Judge. Review of a Final Order of the County Ct., Hillsborough County. Counsel: Timothy A. Patrick, Tampa, for Appellant. Gary Fiedler, Tampa, for Appellee.
Appellant appeals a final judgment awarding attorney’s fees and costs to Appellee pursuant to Section 57.105, Florida Statutes. For reasons discussed below, we dismiss the appeal for lack of jurisdiction.
The underlying matter in this case was a suit for breach of contract, unpaid benefits, and statutory interest under the personal injury protection (PIP) statute. Plaintiff Wayne Alexander was injured in an auto accident on or about February 22,1996. As a result of these injuries, he sought and received medical treatment. Alexander was covered by an insurance policy issued by Appellee, which included coverage for PIP benefits. Because of payment disputes, Alexander filed suit. During litigation, Appellee argued that Alexander did not possess standing to bring the suit because he had assigned his benefits to various medical providers. The lower court agreed and granted Appellee’s Motion for Final Summary Judgment. Appellee then filed a Motion for Attorney’s Fees and Costs pursuant to Florida Statute Section 57.105, which the trial court granted on August 15, 2000. On August 1, 2001, prior to the hearing to determine the amount of fees and costs, Alexander’s counsel, Timothy Patrick (Patrick), filed a motion to withdraw as Alexander’s attorney, which the trial court appears to have orally granted at a hearing on September 28, 2001. The trial court entered a written order granting the motion to withdraw on April 24, 2002.
On June 4, 2002, the lower court entered final judgment awarding Section 57.105 attorney’s fees and costs to Appellant in the total amount of $8,284.04 to be paid equally by both Alexander and Patrick, neither of whom appeared for the hearing. A copy of the judgment was provided to both Patrick and Alexander. In response to the judgment, Patrick filed, specifically and solely on his own behalf1, a Motion for Rehearing of the June 4, 2002 final judgment. The trial court judge denied the motion. Within 30 days, Patrick filed a Notice of Appeal, this time specifying that it was on behalf of only the insured Wayne Alexander, his former client. Appellee argues that this Court lacks jurisdiction to consider the appeal.
Based upon our review of the procedural aspects of this case, we agree that the appeal must be dismissed as untimely as to Alexander, and, to the extent that Patrick contests his own separate liability with respect to the final judgment, we determine that an appeal of those interests is not before this Court.
Coats v. Climatic Products Corp., 756 So.2d 1104, (Fla. 1st DCA 2000) is applicable here. Therein, the Court stated that by the very terms of Rule 9.020(h), rendition is suspended only between the “movant and any party against whom relief is sought by the motion. . .”. Additionally,
Subdivision (g)(1) [now (h)(1)] has been added to clarify the date of rendition when post judgment motions have been filed. If there is only one plaintiff and one defendant in the case, the filing of a post-judgment motion or motions by either party (or both parties) will postpone rendition of the entire final order as to all claims between the parties. If there are multiple parties on either or both sides of the case and less than all parties file post-judgment motions, rendition of the final order will be postponed as to all claims between moving parties and parties moved against, but rendition will not be postponed with respect to claims disposed of in the final order between parties who have no post-judgment motions pending between them with respect to any of those claims. See, e.g., Phillips v. Ostrer, 442 So. 2d 1084 (Fla. 3d DCA 1983) (at 1104, 1105). (Emphasis supplied.)
Id. Because Patrick moved for rehearing only on his own behalf, the motion for rehearing did not suspend rendition of the final judgment as to Alexander. Therefore, the notice of appeal brought on Alexander’s behalf is untimely.
To the extent Attorney Patrick appeals his liability under the terms of the order, we conclude that his interests have not been properly brought before this Court. The final judgment assessing attorney’s fees and costs against attorney and client conferred party status on Patrick with respect to its terms.2 In Avemco Insurance Company v. Tobin, 711 So. 2d 128 (Fla. 4th DCA 1998), rehearing denied, June 25, 1998, the Fourth District said: “[t]he mere fact that they (the attorneys) were not formal parties in the original. . .case does not mean that they could never become parties in a later collateral proceeding within the same action.” It also said “they came under the statutory term “party” in section 57.105(1) by their own conduct” by asserting their own interests. In the instant case, we note that Patrick asserted his own interests as separate and distinct from those of his client when he moved for rehearing on the final judgment assessing attorney’s fees against him after his withdrawal from representation of Alexander. Even if we subscribed to the view that the order alone does not confer party status upon Patrick, the act of asserting his own interests as separate and distinct from Alexander’s in the motion for rehearing brought him under the statutory term.
Patrick’s reliance upon Whiteside v. School Board of Escambia County, 798 So.2d 85 (Fla. 1st DCA 2001) for the proposition that he need not have — in fact, could not have — specified himself in the notice of appeal is misplaced, although it serves to highlight the problems that would arise if attorneys who are subject to personal liability for Section 57.105 fees were not considered parties for purposes of those orders. The court in Whiteside held that “one not a party to a case generally has no standing to request relief from the court.” It does not address whether the facts before this Court confer on Patrick party status. Patrick’s argument is inconsistent with his conduct in the lower court proceeding in that his motion for rehearing requested relief specifically for himself. Decisional and statutory authority provides for the separation of a client’s liability for 57.105 from that of the client’s attorney. See Avemco at 129.
In short, because Patrick’s liability has not been brought before the Court and Alexander’s notice was untimely, this Court lacks jurisdiction to consider the appeal.
It is therefore ORDERED that the appeal is DISMISSED. It is further ORDERED that Appellee’s Motion for Appellate Attorney’s Fees and Costs is GRANTED. The matter is remanded to the trial court to determine the amount thereof. (Arnold and Crenshaw, JJ., concur.)
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1The motion sought relief only for Timothy Patrick as “former counsel” to the plaintiff, on the ground that the trail court erred in requiring him to pay half of the fees and costs. Patrick asserted that the trial court erred in assessing fees against him as the plaintiff’s attorney because he had ceased his representation. At the time of the entitlement was determined, Patrick still represented Alexander.
2We are mindful that case law from another district does not wholly support our view. See Neustein v. Miami Shores Village, 837 So.2d 1054 (Fla. 3d DCA 2002). However, we cannot conceive any other way under the rules of court to treat an attorney subject to such an order. Notwithstanding Neustein, Patrick engaged in conduct that made him a party, even if one subscribes to the view that the order alone did not.
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