16 Fla. L. Weekly Supp. 631a
Online Reference: FLWSUPP 167MCWAN
Insurance — Personal injury protection — Attorney’s fees — Trial court violated due process by awarding attorney’s fees without holding evidentiary hearing to determine reasonableness and necessity of fees
UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Appellant, vs. NDNC NEUROLOGICAL TREATMENT CENTERS, INC., a/a/o McKeel McWan, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 07-33957 CACE 03. L.T. Case No. 06-010148 COCE 56. May 18, 2009. Rehearing Denied June 1, 2009. Counsel: Thomas L. Hunker, United Automobile Insurance Company, Office of the General Counsel, Miami. Dean A. Mitchell, Ocala. Nathan J. Avrunin, Sunrise.
OPINION
(PATTI ENGLANDER HENNING, J.) THIS CAUSE comes before this Court, sitting in its appellate capacity, upon an appeal by United Automobile Insurance Company (“United”), of the trial court’s Final Judgment awarding attorney fees to Appellee. Having considered the briefs of both parties, the record on appeal, applicable law, oral arguments, and being otherwise fully advised in the premises, this Court finds and concludes as follows:
Appellant appeals a trial court order granting Plaintiff’s/Appellee’s motion for attorney fees. The trial court granted the motion after issuing an order preliminary to hearing on motion for attorney’s fees and costs. The order required the moving party to serve an affidavit to each of the items and states that the non-moving party should respond in writing and that failure to do so shall be considered an acceptance of the other party’s claim. Appellant did not respond and the trial court issued an order granting the attorney fees without further proceedings.
Among the arguments raised by the appellant is that their due process was violated by the trial court awarding attorney fees without an evidentiary hearing. The case law is clear that trial courts must hold an evidentiary hearing to determine the reasonableness and necessity of the fees. Guyton v. Leonard Dewey Wilkinson Action Welding Supply, Inc. 707 So. 2d 885, 886 (Fla. 1st DCA 1998).
Accordingly, the trial court’s Final Judgment is REVERSED and REMANDED to the trial court for an evidentiary hearing to determine the amount of attorney’s fees to be awarded.
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ORDER
THIS CAUSE came before the Court on Appellee’s Motion for Rehearing.
The Court has reviewed Appellee’s Motion and the court file.
Based on the foregoing, the Court finds the Motion should be and is hereby DENIED.
