14 Fla. L. Weekly Supp. 803a
Attorney’s fees — Insurance — Personal injury protection — Alleged co-counsel for medical provider is not entitled to attorney’s fees where attorney is independent of medical provider’s counsel of record and did not file notice of appearance, sign any pleading, or attend any hearing or deposition and was totally unknown to opposing counsel or court until bill for fees was submitted after close of case
SOUTH MIAMI HEALTH CENTER INSURANCE a/a/o Nohora Arciniegas, Plaintiff(s), vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant(s). County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 04-11064-CC-25, Section 01. June 22, 2007. Andrew S. Hague, Judge.
ORDER DENYING ENTITLEMENT OF ATTORNEY’S FEES FACTUAL STATEMENT
Mr. George David filed a lawsuit on behalf of the Plaintiff on November 10, 2004 for the Defendant’s failure to pay benefits under a PIP policy. The case was vigorously litigated for almost two years. The case came to a close on November 30, 2006 when the Court granted the Plaintiff’s Motion for Summary Final Judgment. Mr. David thereafter timely filed upon the Court, a Motion for Prevailing Costs and Motion for Assessment of Attorneys Fees upon the Defendant on December 1, 2006.
The four paragraph motion filed by Mr. George read as filed:
PLAINTIFF’S MOTION FOR PREVAILING PARTY COSTS AND MOTION FOR ASSESSMENT OF ATTORNEY’S FEES
Plaintiff, SOUTH MIAMI HEATH CENTER a/a/o Nohora Arciniegas, moves this Court for an Order granting Plaintiff’s Motion and as grounds therefore states:
1) Plaintiff sued Defendant for PIP benefits that were due to him under his insurance policy issued by Defendant in this case.
2) Plaintiff obtained a Final Judgment in its favor awarding Plaintiff PIP benefits and Defendant agrees that Plaintiff is entitled to attorney’s fees and costs resulting from bringing this action pursuant to FS 627.428 and the cost statute.
3) Plaintiff’s Complaint sought prevailing party costs and attorney’s fees in this case pursuant to FS 627.736 as a result of bringing this action against Defendant.
4) Accordingly, pursuant to FS 627.736, Plaintiff is entitled to attorney’s fees and costs incurred by his attorney for bringing this action against Defendant.
The motion is then signed by Mr. George David after he certifies that a copy was hand delivered to counsel for the Defendant.
On March 19, 2007, a Hearing was held to determine Entitlement and Attorney’s Fees and Costs. At that Hearing, Counsel for Defendant appeared as well as an expert by the name of Chris Wadsworth. Mr. George David was present for the Plaintiff as well as Ms. Meena Lopez and their expert, Marc Goldman. At that Hearing, the Plaintiff listed costs in the amount of $678.55. Mr. David claimed 66.2 hours at an hourly rate of $350.00 per hour. Ms. Meena Lopez had timesheets totaling 61.5 hours at an hourly rate of $300.00 per hour. Mr. Marc Goldman was asking for 8 hours at $400.00 per hour.
At the hearing, the Defendants stipulated to the $678.55 in costs and to the $400.00 rate for Mr. Goldman and the eight hours claimed by him for his work as an expert. Next was the stipulation as to the hourly rate for Mr. David at $350.00 per hour. Then there was a discussion between the experts as to an adjustment in Mr. David’s timesheets. It was agreed, and stipulated, that the Defendant would pay for 52.4 hours at the stipulated rate. The only outstanding issue remained the entitlement of Attorney’s Fees for Ms. Meena Lopez.
Ms. Lopez is a sole practitioner and is not an associate of Mr. David’s firm. She believes that she served in the capacity of “co-counsel” during the course of this case even though she never filed a Notice of Appearance with the Court. Ms. Lopez never signed a pleading, never appeared in court, never appeared at a hearing, never sat in a deposition, never signed any correspondence, never made any telephone calls to the Defendant or did anything to put the Defendant on notice that she was involved in the case. The very first indication that the Defendant had that Ms. Lopez was involved in this litigation was when they received her timesheets after the Motion for Summary Final Judgment had been granted. The Court first became aware of her involvement in the case at bar when it saw Ms. Lopez’ timesheets for the first time at the Motion for Attorney’s Fees and Costs.
Subsequent to the Hearing on March 19, 2007, the Court requested each party to provide a Memorandum of Law in support of their position as to why, or why not, Ms. Lopez is entitled to Attorneys Fees. The Court also gave Ms. Lopez ten (10) days to supplement the record with any evidence to support her position that proves she was an Attorney of Record, and the Defendant had five (5) days to respond.
ARGUMENT OF COUNSEL
Plaintiff’s first argument is raised from the PIP statute itself. Under F.S. § 627.428(1) attorneys fees are addressed as follows:
(1) Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.
In addition to the overall entitlement provision under F.S. §627.428(1), Ms. Lopez proceeds to argue the necessity for speedy payment pursuant to Lasky v. State Farm Ins. Co., 296 So.2d 9 (Fla. 1974). Ms Lopez asserts that PIP insureds are afforded greater protection than other litigants because the legislature has “limited their rights to redress for medical expenses and lost wages within the personal injury protection scheme”. In exchange, the legislature provided certain rights to the insureds, including the right to speedy payment of lost wages and medical bills from the insured’s own insurance company, regardless of fault. Under F.S. § 627.428, the legislature also provided for the payment of attorney’s fees to pay for the Plaintiff’s attorney, should the Plaintiff prevail. Additional cases Plaintiff relies on include: Kluger v. White, 281 So. 2d 1, 4 (Fla. 1973); Ivey v. Allstate, 774 So.2d 679, (Fla. 2000); United Auto Ins. Co. v. Rodriguez, 808 So.2d 82, 87 (Fla. 2001); January v. State Farm Mut. Ins. Co., 838 So.2d 604 (Fla. 5th DCA 2003); Dunmore v. Interstate, 301 So.2d 502, 503 (Fla. lst DCA 1974); Nichols v. State Farm Mutual, 851 So.2d 742 (Fla. 5th DCA 2003); Nationwide Mutual Fire Ins. Co. v. Pinnacle Medical, Inc., 753 So.2d 55, 59 (Fla. 2000); Government Employees Ins. Co. v. Gonzalez, 512 So.2d 269, 271 (Fla. 3rd DCA 1987); USAA Casualty Ins. Co. v. Shelton, 932 So.2d 605 (Fla. 2nd DCA 2006); Danis Industries Corp. v. Ground Improvement Techniques, Inc., 645 So. 2d 420, (Fla. 1994); Ins. Co. of North America v. Lexow, 602 So. 2d 528, 53, (Fla. 1992); Travelers Indemnity Co. of Ill. v. Meadows MRI et al., 900 So.2d 676, (Fla. 4th DCA 2005); Pepper’s Steel & Alloys, Inc., et al. v. United States of America, et al., 850 So.2d 462, (Fla. 2003); Roberts v. Carter, 350 So. 2d 78, 79 (Fla. 1977); State Farm Fire & Cas. Co. v. Palma, 629 So.2d 830, 832 (Fla. 1993).
The Plaintiff also asserts that there is no legal significance between filing of a Notice of Appearance and being entitled to attorney’s fees. According to the Plaintiff, denying Ms. Lopez her attorney’s fees for failing to file a Notice of Appearance, would deny her the protection created by the legislature to ensure that citizens have a reasonable alternative to the traditional tort action and would render that assurance of speedy payment hollow. The Plaintiff then argues that the Defendant should not be allowed to circumvent the expressed language of F.S. § 627.736(8) by attempting to deny the recovery of fees based upon a Judicial Rule of Administration which, as stated below, does not contain any mandatory provision regarding the filing regarding of notices of appearance. The argument being that had the legislature wanted entitlement of attorney’s fees to hinge upon the filing of a Notice of Appearance, then it would have included such a provision under F.S. § 627.736 or § 627.428. Since there is no such provision, there is no requirement to file a Notice of Appearance.
The Florida Rules of Judicial Administration 2.505(e) states: Appearance of Attorney. — An attorney may appear in a proceeding in any of the following ways:
(1) By serving and filing, on behalf of a party, the party’s first pleading or paper in the proceeding.
(2) By substitution of counsel, but only by order of court and with written consent of the client, filed with the court. The court may condition substitution upon payment of, or security for, the substituted attorney’s fees and expenses or upon such other terms as may be just.
(3) By filing with the court and serving upon all parties a notice of appearance as counsel for a party that has already appeared in a proceeding pro se or as co-counsel for a party that has already appeared in a proceeding by non-withdrawing counsel.
Ms. Lopez makes the argument that it must be assumed that the legislature must know the “plain and ordinary” meaning of the words and that the word ‘may’ when given its ordinary meaning, denotes a permissive term rather than the mandatory connotation of the word ‘shall’. Therefore, there is not a mandatory requirement for an attorney to file an appearance under the rules as stated above.
The Defendant counters with their argument based primarily on the Florida Rules of Judicial Administration 2.505(e). They argue that the reasons for requiring a Notice of Appearance to be filed are numerous and obvious. An attorney must file their Notice in order to be recognized by the Court. It is that Notice of Appearance that officially binds the attorney to his/her client and therefore binds the representations of the attorney to his or her client. Pasco County v. Quail Hollow Properties, Inc., 693 So.2d 82, 83 (2nd DCA 1997). The Defendant further argues that it is also imperative that both the Court and the opposing parties know what attorneys they need to deal with or who are participating in the litigation. This, they claim, is of particular importance in a PIP case where a claim for attorney’s fees by an attorney, not of record, is being made at the conclusion of the case. Each and every attorney needs to file a Notice of Appearance in order to be properly recognized by the Court and opposing counsel. Failure to do so renders all pleadings and motions he/she files with the Court null and void. Thomas v. State, 884 So.2d 309 (Fla. 2nd DCA 2004).Where the attorney who fails to file a Notice of Appearance is a substitute attorney, the pleadings filed with the Court are voidable and subject to a Motion to Strike. Hicks v. Hicks, 715 So.2d 304 (Fla. 5th DCA 1998).
It is the position of the Defendant that Ms. Lopez falls into the category of an “additional attorney” because she never filed a Notice of Appearance in the case at bar. In addition, she is not a member of the same law firm as George David. She is not a partner or associate of Mr. David; she is a sole practitioner with her own separate and distinct law firm. Although she claims to be “co-counsel”, she is registered with the Florida Bar as an independent attorney with her own solo practice. Therefore, under Florida Rule of Judicial Administration 2.505(e), Ms. Lopez was obligated to file a Notice of Appearance in order to represent Mr. David’s client. That Notice of Appearance would have put both the Court and the Defendant on notice that she was involved in the representation of the Plaintiff. Her failure to file renders her work a nullity and does not permit Ms. Lopez to claim attorney’s fees simply by filing time records months after the case was concluded by Mr. David.
Finally, the Defendant counters Ms. Lopez’s argument that she should not be denied her attorney’s fees based on a “technicality” and that she is entitled to her fees on a theory of quantum meruit. It is the Defendant’s position that Florida courts routinely deny entitlement to attorney’s fees based on technical violations of mandatory requirements and that quantum meruit does not circumvent those violations. As examples, the Defendant cites Stockman v. Downs, 573 So.2d 835 (Fla. 1991).
CONCLUSIONS OF LAW
This Court first reviews the initial argument of Plaintiff based on F.S. § 627.428(1) which reads:
Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.
Although this Court allowed Ms. Lopez an additional ten (10) days to file with the Clerk of Court any documents in support of her position, nothing in the court file provides any support of any attorney client relationship between Ms. Lopez and the Plaintiff. There is not a Notice of Appearance, retainer agreement, or any other form of employment contract between either the Plaintiff and Ms. Lopez or Mr. David and Ms. Lopez. Mr. David did, however, supplement the file with a document that vaguely states that he may engage other counsel, but it never names a firm or says that it was done. The record has no mention of Ms. Lopez and it is clear that she never signed a pleading, attended a hearing or deposition or had any contact with any member of the Defendant’s office or support staff. The Court file has no indication that Ms. Lopez is in any way connected with this file until her timesheet is filed after the Summary Final Judgment was granted.
The first indication that the defendant knew that Ms. Lopez was on the case was when they received her timesheets in preparation for the Attorney Fee Hearing after the Motion for Summary Final Judgment was granted. The Court certainly agrees with the law as stated above in F.S. § 627.428. However, if you read the language in that statute, the attorney’s fees that are due, are due to the “beneficiary’s attorney”. Unless you have a retainer agreement, employment contract or you have filed a Notice of Appearance, how do you demonstrate that you are the beneficiary’s attorney? In the case at bar, clearly Mr. George David is the beneficiary’s attorney. He appears on all of the paperwork, he has put the Court on notice of his representation as well as opposing counsel by way of his constant appearance at hearings and correspondence with opposing counsel.
The second argument deals with the applicability of The Florida Rules of Judicial Administration 2.505(e). When you review that standard and the case of Pasco County v. Quail Hollow Properties, Inc., 693 So.2d 82, 83 (2nd DCA 1997), the fact that Ms. Lopez is a sole practitioner and not part of Mr. David’s firm is significant. If Ms. Lopez were part of Mr. David’s firm and they were truly co-counsel, there would be no discussion. Her hours would simply be included in his timesheets and submitted at the Attorney Fee Hearing. It is far different when she is a separate and distinct P.A. or firm. The Defendant has the right to know that they are battling two different law firms for a number of reasons. One is from a practical matter. If they are unable to contact Mr. David in an emergency, it would be important to know that there is another lawyer to contact; secondly, there is the pure practical consideration. The Defendant may have chosen to approach their case much differently had they known that there was a second lawyer working on the case full time at $300.00 per hour. Ms. Lopez would be in a position to put the court, and the Defendant on notice that she was representing the Plaintiff in order to be entitled to attorney’s fees by several, very simple methods not the least of which was filing a Notice of Appearance.
This Motion is to determine entitlement to attorney’s fees and it is not limited to filing a Notice of Appearance, but putting opposing counsel on notice of your involvement in the case. Picchi v. Barnett Bank of South Florida, N.A., 521 So. 2d 1090, 1091 (Fla. 1988) quoted below, is a Florida Supreme Court case that tells us how a Defendant makes an “appearance” in a case:
An appearance occurs when a defendant files a paper in the action. He is then said “to appear” or “file his appearance.” This must be distinguished from the paper formerly designated appearance. It was a paper that announced that the party had appeared in the action. There is no paper that can properly be filed called an appearance. It was eliminated [**4] from the rules in 1952 and statutory authority for it was repealed in 1953. If one is filed, it may be attacked by motion for default or to strike and the court should enter the default or strike the paper.
Clearly, the same standard must hold true for a Plaintiff. Ms. Lopez argues that the filing of a Notice of Appearance is not necessary because of the permissive language. While she may be correct, this court believes that the Ricchi court then made it very clear that an attorney involved in an action ultimately files their appearance through papers filed with the court. Again, the obvious purpose of this is to put all parties on notice of their participation and representation of their respective clients.
Without this notice, any attorney is considered an outsider and, under Hicks v. Hicks, 715 So.2d 304 (Fla. 5th DCA 1998), any pleadings they file are a nullity because they do not have any standing in the action before the Court.
There are other practical considerations which favor Ms. Lopez, or any independent counsel, having something in the record indicating their representation of the Plaintiff, whether it is a “permissive” Notice of Appearance, correspondence, or retainer agreement. What if there is a complaint to the Florida Bar? When they review the file, they would only see George David.
When you look at the totality of the circumstances and the situation as a whole, it is clear that an attorney must put opposing counsel, and the Court, on notice that they are involved in the litigation if they are to file for attorney’s fees at the close of the case. Upon looking at these factors, it is abundantly clear that an independent attorney, totally unknown to opposing counsel, that surfaces only after the case is closed and submits a bill for fees equal to that of the attorney that had been litigating this case for almost two years, and yet nobody was ever aware of this attorney’s involvement, be denied their claim for fees because they failed to notify the Court or counsel that they were working the case.
It is for all of the above considerations, that Ms. Lopez’s Entitlement to Attorney’s Fees is Hereby DENIED.
