13 Fla. L. Weekly Supp. 690b
Attorney’s fees — Insurance — Personal injury protection — Hearing — Medical provider was denied right to hearing on issues of entitlement to and amount of attorney’s fees where counsel for provider was absent from hearing due to illness, and court proceeded with hearing based on insurer’s representation that counsel had not filed notice of appearance and that provider was appearing pro se — Even if provider was appearing pro se, court should have granted leniency on technicality of notice of appearance — Nunc pro tunc order — Error to enter nunc pro tunc order that did not merely correct clerical error or omission, but modified substance of prior ruling by making additional findings not in original order — Modifications should not be given retroactive effect — Prevailing party — Second voluntary dismissal — Provider’s second voluntary dismissal operates as adjudication on merits establishing insurer’s prima facie entitlement to attorney’s fees, but trial court must determine whether offer of judgment was made in good faith or disallowance is warranted and whether time spent by attorneys was appropriate and compensable
MICHAEL ROSE, M.D., Appellant, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami Dade County. Case No. 05-107 AP. L.C. Case No. 03-21871 SP 05. April 6, 2006. An appeal from the County Court of the Eleventh Judicial Circuit, Judge Wendell M. Graham. Counsel: Lionel Barnet, for Appellant. Douglas Stein and Sharon A. Shade, for Appellee.
(Before SMITH, PEREYRA-SHUMINER, and GERSTEIN, JJ.)
(PEREYRA-SHUMINER, Judge.) This is an appeal of an order granting attorneys fees in favor of Progressive Express Insurance Company. For the reasons stated below, we reverse the lower court order dated February 11, 2005 entered nunc pro tunc to December 8, 2004, and remand for a hearing on appellant’s claim for attorneys’ fees.
The facts are as follows:
Ezquiel Concepcion was involved in an automobile accident. He sought treatment from Dr. Michael Rose, M.D. the Appellant. He assigned the benefits of the PIP policy issued by Progressive to the Appellant. The Appellant billed Progressive Express Insurance Company, which refused to pay the Appellant’s bill in the amount of $675.00.
On August 18, 2003, the Appellant filed his complaint against the Appellee for the medical charges. The Appellee filed its answer and affirmative defenses, admitting that Ezequiel Concepcion was “entitled to PIP benefits under the mentioned policy, subject to the terms and conditions of the policy.” However, the appellant filed a voluntary dismissal without prejudice in order to first comply with the requirements of F.S. 627.736(11), dealing with pre-suit demand letters.
The Appellant filed a new complaint on December 9, 2003, and the Appellee tendered a settlement proposal in the amount of $25.00. The Appellant’s counsel responded that he could neither accept nor reject the settlement proposal since he was unable to contact Ezequiel Concepcion. After being given leave to file affirmative defenses, the Appellee, for the first time, pled lack of entitlement to benefits.
At a deposition held on June 18, 2004, Appellee’s counsel handed the Appellant’s counsel a Florida Auto Registration form for Jose Manuel Concepcion, Ezequiel Concepcion’s brother, revealing that Ezquiel Concepcion had no PIP coverage. This form was received by the Appellee on April 30, 2002, but had not been previously disclosed to the Appellant. As a result, on July 12, 2004, the Appellant filed its second voluntary dismissal without prejudice, thus triggering the Appellee’s entitlement to attorney fees and costs.
Over the course of the following months, both parties sought recovery of attorney fees and costs. The Appellant’s counsel filed its motion to withdraw, which was granted on October 26, 2004. The Appellant was allowed twenty days to retain new counsel, although Lionel Barnet was present at the hearing and represented to the Court that he would represent the Appellant.
On November 30, 2004, the Court heard the Appellee’s motion for final judgment for attorney fees and costs. The Appellant’s attorney, Lionel Barnet, was not present due to illness. The Court proceeded with the hearing based on the Appellee’s representation in open court that Lionel Barnet had not filed a notice of appearance and that the Appellant was proceeding pro se. On December 8, 2004, the Court entered its final judgment on Appellee’s motion for attorney fees and costs, awarding the Appellee attorneys fees and costs and ordering that the total sum of $32,740.25, plus interest, be paid by the Appellant. The Appellant filed a motion to set aside the judgment awarding fees and costs, on the grounds that Appellant’s counsel was ill on the date of the hearing. The Court vacated the judgment on January 13, 2005, based upon a finding of excusable neglect. The court docket indicates that Appellant’s attorney filed his notice of appearance on January 12, 2005. In its order of January 13, 2005, the court specifically made a finding that appellee was entitled to attorney fees and set a subsequent hearing date to “revisit its decision whether the defendant’s offer of judgment was made in good faith.”
On February 11, 2005, the court vacated its previous order vacating judgment and reinstated the final judgment awarding fees and costs “nunc pro tunc”. In its order vacating the judgment, the Court specifically stated that the judgment was not vacated as to entitlement, only as to the amount.
This Court reviews three issues in the instant case: (1) whether it was proper for the lower court to proceed with the November 30, 2004 hearing in the absence of the Appellant’s attorney, Lionel Barnet, (2) whether the entry of the nunc pro tunc order was appropriate, (3) whether the Appellant’s second voluntary dismissal without prejudice is an adjudication on the merits.
In dealing with the first issue, it is clear that both the letter filed with the court and the physician’s discharge orders indicate that Mr. Barnet would be unable to attend the hearing. Furthermore, Mr. Barnet asserts that his legal assistant informed the court of the circumstances by telephone, and was told that the hearing would be rescheduled. The Appellee states that Mr. Barnet’s failure to file a notice of appearance before the hearing left the Appellant pro se. We do not agree.
Florida Rule of Judicial Administration, 2.060(h) provides that an attorney may appear in a proceeding in any of three ways: by serving or filing the first pleading; by substitution of counsel or by filing a notice of appearance for a party appearing pro se or as co-counsel for a party that has already appeared in a proceeding. The provisions of this rule are permissive, not mandatory. The rules of civil procedure “know no such thing as a notice of appearance and they extract no penalty for the use of it as a convenient way of placing counsel’s name and address on the record to avoid court action. . .or to guard against an unnoticed default entered upon some later inadvertence by defendant’s counsel.” Weatherhead Company v. Coletti, 392 So.2d 1342, 1344 (Fla 1981). In the Weatherland case, the court opined that, “the mere filing of an entirely neutral and innocuous piece of paper, which indicates no acknowledgment of the court’s authority, contains no request for assistance of its process, and most important, reflects no submission to its jurisdiction should nevertheless be given just that effect.” Id. at 1343. The Weatherland court concluded that the notice of appearance is an immaterial and meaningless technicality, which does not reflect on the merits of the case. Id. In short, the lack of filing a notice of appearance is of no significance. Id.
In the instant case, if the court did not recall the specific circumstances, the Appellee’s attorney should have informed the court of the facsimile notification. Even if the trial court properly found that the Appellant was pro se, it should have exercised its discretion to allow the Appellant some leniency. It is well established in the history of jurisprudence that pro se litigants have frequently been granted leniency in technical matters. Barrett v. City of Margate, 743 So.2d 1160 (Fla. 4th DCA 1999). This court finds that the Appellant was denied the right to have a hearing on the important matter of entitlement and reasonable amount of attorneys fees.
We next consider whether the entry of the nunc pro tunc order was appropriate. Florida Rule of Civil Procedure 1.540(a), provides that clerical mistakes in judgments, decrees, or other parts of the record, and errors arising from oversight or omission may be corrected by the court at any time on its own initiative or on the motion of any party and after such notice, if any as the court orders. Since ancient times, the courts have exercised the inherent power of entering judgments nunc pro tunc so that “the litigant, who is himself not at fault, should not be impaired or lost.” Becker v. King, 307 So.2d 855 (Fla. 1975).
In the instant case, this Court must look to whether the nunc pro tunc order disturbed or revised legal rights and obligations which by its prior judgment, had been plainly and properly settled with finality. Wells v. State, 796 So.2d 1276 (Fla. 2001), De Gale v. Krongold, Bass & Todd, 773 So.2d 630 (Fla. 2000). The entry of the nunc pro tunc order retroactive to December 8, 2004 effectively denied the Appellant his right to appeal. Similarly, in Estate of Riha, the nunc pro tunc order granted an extension that the Appellant was already precluded from using. 369 So.2d at 405 (Fla. 1979). As in the case before this Court, the result was disabling and impaired the Appellant’s rights.
The issuance of a nunc pro tunc order is a mechanism by which the court corrects clerical errors. Carridine v. State, 721 So.2d 818 (Fla. 1998). It is not available for the benefit of parties if there has been a failure to observe proper procedure. Carridine, 721 So.2d at 819. In the Carridine case, the Court neglected to sign and record a judgment of guilty. On review it was held that the Court’s incorrect action or failure to act does not warrant the entry of a nunc pro tunc decision. In this case, the trial court entered a nunc pro tunc order prefaced by its admission that “the court finds it erred.” The entry of that order was not curative of the Court’s error. The decision rendered by the lower court was not an oversight or clerical error, therefore the usage of nunc pro tunc was improper.
A nunc pro tunc order can also be used to correct the record to reflect a prior ruling made but defectively recorded. DeBaun v. Michael, 333 So.2d 106 (Fla. 1976). In DeBaun, the Court cautioned that when an order does not merely correct a clerical error or omission, but actually modifies the substance of a prior ruling or constitutes a ruling not previously made, it should not be given retroactive effect. DeBaun, 333 So.2d at 106. When the Court wholly omits an order or wishes to change it, the new order cannot be given nunc pro tunc. Estate of Riha, 369 So.2d at 404. The trial court modified the substance of its prior ruling in the nunc pro tunc order. The initial order entered on December 8, 2004, stated that the Appellant was pro se, had been noticed for hearing and failed to attend. The remainder of the initial order was devoted to the attorney fee award for six attorneys. The trial court added that the Appellant’s counsel was aware of the November 30, 2004 hearing, and that the Appellant’s position was represented by objections filed by former counsel and considered by the court in rendering its ruling, an issue which was contested throughout the pleadings. The initial order of December 8, 2004 had not included either of these findings. The modification of the initial order should not be given retroactive effect. A supplemental decree would have properly addressed changes to the order of December 8, 2004.
The third issue under review by this Court is whether the Appellant’s second voluntary dismissal without prejudice is an adjudication on the merits. Florida Rule of Civil Procedure 1.420(a)(1) provides that a voluntary dismissal without prejudice operates as an adjudication on the merits when served by a plaintiff who has dismissed in any court a prior action based on the same claim. This rule operates to effectively bar further action on the Appellant’s claim, inasmuch as the suit has been voluntarily dismissed on two occasions. Tinsley v. McDonald, 378 So.2d 816 (Fla. 3d DCA 1979). The legislature’s intent is to discourage litigation without merit. Goldstein v. Richter, 538 So.2d 473 (Fla. 4th DCA 1989). Based on the voluntary dismissal rule, the Appellee is entitled to the prevailing party status requisite to trigger an award of attorney fees. Precedent clearly establishes the entitlement to attorney fees. “Simply because a case is terminated by a voluntary dismissal, either with or without prejudice, a defendant’s entitlement to fees is not eliminated under the statutory provisions of 57.105 or 768.79.” Perkins v. Wilson, 697 So.2d 1276 (Fla. 3d DCA 1997), Tampa Letter Carriers, Inc. v. Mack, 649 So.2d 890 (Fla. 2d DCA 1995), and Tangerine Bay Company v. Derby Road Investments, 664 So.2d 1045 (Fla. 2d DCA 1995). However, pursuant to the provisions of Section 768.79(7)(a), Florida Statutes, if a party is entitled to costs and attorney fees, the court may, in its discretion, determine that an offer was not made in good faith, and disallow the award.
In this case, the court vacated its order except as to the issue of entitlement to attorney fees. However, the court was deprived of the opportunity to hear mitigating factors as to the entitlement which may warrant reduction or disallowance of the fees. Specifically, the Appellant was unable to explain to the court the reason for filing the second voluntary dismissal. The Appellant filed a new complaint, and the Appellee made a settlement proposal on April 1, 2004, without disclosing information which was vital to evaluate the reasonableness of the offer. This is contrary to the provisions of Section 768.79(7)(b)4, Florida Statutes, and is a factor for the court to consider in determining the reasonableness of an award. Only on May 11, 2004, upon the filing of its additional affirmative defenses did the Appellee plead lack of entitlement to benefits. The Appellee waited until June 18, 2004 to provide the proof. The Appellee should have divulged the lack of coverage and eliminated unnecessary litigation. Due to the fact that the Appellee’s attorneys contributed to the length of the litigation, it would be inequitable to punish the Appellant. Pursuant to 4-3.3, Florida Rules of Professional Conduct, “there are circumstances where failure to make a disclosure is the equivalent of an affirmative misrepresentation.”
This Court finds that the Appellant’s notice of appeal was timely filed, and that the November 30, 2004 hearing should not have taken place in the absence of the Appellant’s attorney and that the entry of the nunc pro tunc order was improper. The Appellant’s second voluntary dismissal operates as an adjudication on the merits, establishing the Appellee’s prima facie entitlement to attorney fees. However, this Court finds that there are significant mitigating factors which require judicial consideration. Specifically, the lower court must make a threshold determination as to whether the offer of judgment was made in good faith or if disallowance is warranted, and whether the time spent by the attorneys was appropriate and compensable.
This Court reverses and remands the case to the lower court for further proceedings consistent with this opinion.
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