17 Fla. L. Weekly Supp. 91a
Online Reference: FLWSUPP 1702DOZIInsurance — Personal injury protection — Attorney’s fees — Where medical provider voluntarily withdrew first suit against insurer and thereafter filed second suit which resulted in insurer’s entry of confession of judgment, trial court erred in awarding provider attorney’s fees for both cases since provider failed either to comply with rule 1.525 requirement to file motion for fees within 30 days after filing of judgment in first case or to demonstrate excusable neglect — Order awarding fees for first case is reversed
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. GLENN V. QUINTANA, D.C., P.A., a/a/o DAVID DOZIER, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 08-037247 CACE 07. L.T. Case No. 06-017991 COCE 54. December 9, 2009. Counsel: Thomas L. Hunker, United Automobile Insurance Co., Office of the General Counsel, Miami. Laura M. Watson, Ft. Lauderdale.
OPINION
(Robert Rosenberg, J.) THIS CAUSE comes before the Court, sitting in its appellate capacity, upon a timely appeal by United Automobile Insurance Company, (hereinafter “UAI”), of the trial court’s Final Judgment and Order awarding attorneys’ fees to Appellee. Having considered the briefs of both parties, the record on appeal, applicable law, and being otherwise fully advised in the premises, this Court dispenses with oral argument and finds as follows:
Appellee previously filed a declaratory suit against UAI in 2002 (case no. 02-010621 COCE 55). In that case, UAI filed a Motion for Summary Judgment and at least one deposition was taken.1 In the face of summary judgment and possible Rule 57.105 fees, Appellee served a notice of voluntary dismissal of the complaint (without prejudice) on or about September 12, 2006. On November 8, 2006, Appellee filed a second complaint concerning the same cause of action and the same parties (L.T. case no. 06-017991 COCE 54). In 2008, the parties reached a settlement of the action, whereby UAI entered a Confession of Judgment. Appellee thereafter moved for Attorneys’ fees and costs. Appellee sought fees and costs for both cases. The parties agreed to the applicable fees and costs associated with the time period beginning from the filing of the second suit in 2006 but failed to agree to fees and costs associated with the filing of the first lawsuit in 2002. A hearing was held on the matter, and the trial court awarded Appellee all fees sought, including fees for the 2002 case. The pending appeal ensued.
While the standard of review of an award of attorney’s fees is generally abuse of discretion, a determination as to whether a motion for fees is time barred by Florida Rule of Civil Procedure 1.525 is a legal determination subject to de novo review. Gosselin v. Gosselin, 869 So.2d 667, 668 (Fla. 4th DCA 2004). Florida Rule of Civil Procedure 1.525 provides:
“Any party seeking judgment taxing costs, attorneys’ fees, or both shall serve a motion no later than 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal.”
Rule 1.525 is a bright-line rule that is strictly applied. Parrot Cove Marina, LLC v. Duncan Seawall Dock & Boatlift, Inc., 978 So.2d 811, 815 (Fla. 2d DCA 2008). Absent excusable neglect, the time requirements of Rule 1.525 must be complied with. See Fisher v. John Carter and Associates, Inc., 864 So.2d 493, 496 (Fla. 4th DCA 2004).
Appellee does not dispute that a motion for fees was filed in June of 2008 only after judgment was obtained in the present action. Appellee’s June 2008 motion for fees includes a request for fees dating back to the first lawsuit but fails to plead excusable neglect. Appellee neither complied with the clear time requirements of Rule 1.525 nor established any basis for excusable neglect. In fact, Appellee simply argues that the voluntary dismissal of the initial action stripped the trial court of any jurisdiction over fee matters. Hence, Appellee intentionally neglected to file any such motion pursuant to Rule 1.525. The courts “generally do not find excusable neglect based on the attorney’s misunderstanding or ignorance of the law or rules of procedure.” Boudot v. Boudot, 925 So.2d 409, 416 (Fla. 5th DCA 2006). In a case similar to the one at hand, the Fourth District Court of Appeal affirmed the decision of the trial court finding that the defendant’s intentional failure to file a motion for attorneys’ fees pursuant to Rule 1.525 did not qualify as excusable neglect. Melton Management, Inc. v. Krott-Shaughnessy, 872 So.2d 320, 321 (Fla. 4th DCA, 2004).2
As this Court finds that Appellee failed to either comply with the requirements of Rule 1.525 or to demonstrate excusable neglect, discussion as to the remaining arguments in support of Appellant’s appeal is moot. Furthermore, as this Court finds grounds for reversible error in favor of Appellant, Appellee’s Motion for Attorneys’ Fees and Costs associated with this appeal is hereby DENIED.
Accordingly, it is hereby
ORDERED AND ADJUDGED that the trial court’s order awarding Appellee, Glenn V. Quintana, D.C., P.A., attorneys’ fees for the 2002 lawsuit is REVERSED. This matter is remanded to the trial court for further proceedings consistent with this Opinion.
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1Transcript of Hearing on Motion for Attorney’s Fees and Costs, page 7.
2In Melton Management, Inc., the plaintiff filed a negligence action, voluntarily dismissed it, and a year later refiled the action. The defendant moved to tax costs and abate the proceedings under Rule 1.420(d).
