19 Fla. L. Weekly Supp. 338a
Online Reference: FLWSUPP 1905AFFIInsurance — Attorney’s fees — Trial court lacked jurisdiction to award attorney’s fees to co-counsel for medical provider where provider’s other attorney settled case on behalf of provider and entered voluntary dismissal stating that each party would bear own attorney’s fees and costs, and co-counsel, who was unaware of settlement, did not assert claim for fees prior to entry of dismissal
AFFIRMATIVE INS. CO., Appellant, vs. UNIVERSAL X-RAYS CORP., Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 09-432 AP. L.C. Case No. 04-8482 SP 26. February 13, 2012. An appeal from the County Court for Miami-Dade County. Gloria Gonzalez-Meyer, Judge. Counsel: Douglas H. Stein and Stephanie Martinez, for Appellant. Stuart B. Yanofsky, for Appellee.
(Before ROTHENBERG, SHAPIRO, and RODRIGUEZ, JJ.)
(RODRIGUEZ, Judge.) This is an appeal of two lower court orders, one finding that attorney Stuart B. Yanofsky was entitled to attorney’s fees, and the other awarding him such fees. The Appellant, Affirmative Insurance Company, asserts that the trial court was without jurisdiction to enter these orders.
Mr. Yanofsky was co-counsel representing the Plaintiff below. The Plaintiff’s other attorney settled the case with Affirmative, on behalf of the Plaintiff. The Plaintiff signed a General Release, which provided, in part, that it released and discharged Affirmative “from any an all claims, demands, actions[,] causes of action, or suits of any kind or nature whatsoever, and particularly on account of all costs, attorney’s fees and personal injury and damages both economic and non-economic . . . .” (emphasis added). The Plaintiff then filed a Notice of Voluntary Dismissal, which included the statement “Each party to bear their own fees and costs.” Subsequently, a week after the dismissal, Mr. Yanofsky moved for attorney’s fees. The trial court determined that Mr. Yanofsky was entitled to attorney’s fees and later entered an order granting him fees. Affirmative appeals, asserting that, because the Plaintiff had entered a voluntary dismissal before Mr. Yanofsky moved for fees, the trial court was without jurisdiction to consider and grant attorney’s fees.
Usually, a trial court has jurisdiction to consider a post-judgment motion for attorney’s fees that is raised within thirty days of a judgment or dismissal. See Finkelstein v. North Broward Hospital District, 484 So. 2d 1241 (Fla. 1986); Fla. R. Civ. P. 1.525. However, where a voluntary dismissal disposes of the attorney’s fee issue, by stipulating that the parties will bear their own attorney’s fees and costs, the trial court is without jurisdiction to consider attorney’s fees. See Dunkin’ Donuts Franchised Restaurants, LLC v. Donuts, Inc., 27 So. 3d 711, 714-15 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D250a].
Mr. Yanofsky argues that the trial court properly awarded fees because the settlement was entered into without his knowledge. However, even under these circumstances, the trial court would have jurisdiction to grant fees only if Mr. Yanofsky had asserted a claim for attorney’s fees prior to the dismissal. Brown v. Vermont Mut. Ins. Co., 614 So. 2d 574, 580 (Fla. 1st DCA 1993)(“Although the parties to a lawsuit that are represented by attorneys may settle the dispute between themselves without the participation of their attorney, any such settlement made without knowledge of or notice to a party’s attorney and without payment of the attorney’s fee due such attorney, operates as a fraud upon the attorney, whether intended or not, and the attorney may continue the litigation in the name of the parties to enforce the right to be paid a fee in those instances where the attorney has asserted a claim or charging lien for such fees before the lawsuit has been reduced to judgment or dismissed pursuant to settlement.”)(emphasis added).
In the instant case, the voluntary dismissal included the statement “Each party to bear their own fees and costs.” Mr. Yanofsky did not file his claim for attorney’s fees until after the dismissal had been entered. Therefore, the trial court was without jurisdiction to consider attorney’s fees. As such, the orders below, finding entitlement to, and granting attorney’s fees, are REVERSED. (ROTHENBERG and SHAPIRO, JJ., concur.)
* * *
