19 Fla. L. Weekly Supp. 220a

Online Reference: FLWSUPP 1904GERVInsurance — Personal injury protection — Attorney’s fees — Appellate — Voluntarily dismissed appeal — Medical provider/appellee’s failure to file motion for appellate fees prior to insurer’s voluntary dismissal of its appeal and failure to specify any basis for fee award in untimely motion for fees requires denial of request for appellate fees — De minimis nature of appellate efforts by provider also compels denial of request for appellate fees

UNITED AUTOMOBILE INSURANCE COMPANY, a Florida Corporation, Appellant, vs. DR. BRASS & SINGER, a/a/o SONY GERVE, et al, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case Nos. 10-007 AP, 10-008 AP, 10-009 AP, and 10-010 AP (consolidated). L.T. Case Nos. 07-02881 CC 05 (06), 07-02886 CC 05 (04), 06-06781 CC 05 (04) and 07-02814 CC 05 (04). November 21, 2011. Counsel: Thomas Hunker, for Appellant. Michael Libman and Stuart Yanofsky, for Appellee.

ORDER DENYING APPELLEE’S MOTION FORAPPELLATE ATTORNEY’S FEES FOR APPEALDISMISSED BY APPELLANTFACTUAL HISTORY

(LEBAN, Judge.) This is a consolidated appeal from four final orders entered below awarding separate attorney’s fees to Appellee, provider of medical services arising out of apparently related PIP cases. See, order granting consolidation entered on January 14, 2010.¹ After the usual round of extension motions and orders, Appellant United Auto Insurance Company filed its Initial Brief on August 16, 2010. Nearly one year elapsed without any Answer Brief being filed by Appellee or motion to extend the time to file same, and, on August 4, 2011, Appellant United Auto filed a MOTION TO COMPEL FILING OF THE ANSWER BRIEF BY APPELLEE. This Court, on August 8, 2011, entered its order granting the MOTION TO COMPEL but providing Appellee an opportunity to abide by the appellate rules by granting Appellee an extension of time (although NOT sought) until August 31, 2011, within which to file its now one year overdue Answer Brief. No such compliance having been met by Appellee (nor any motion for an extension even beyond the grace period offered by this Court), Appellant filed a motion on September 14, 2011, TO PRECLUDE APPELLEE FROM FILING AN ANSWER BRIEF AND PARTICIPATING IN ORAL ARGUMENT. On September 21, this Court entered its order granting Appellant’s motion. No motion for oral argument having been filed by either party, this Court caused this appeal to be set before an appellate panel for determination without oral argument, and subsequently, on October 4th, a notice setting the date of November 17, 2011 for submission of this appeal to a panel without argument was entered. For reasons unknown, Appellant, on November 4, 2011 filed its NOTICE OF VOLUNTARY DISMISSAL WITH PREJUDICE. On November 8, 2011, this Court recognized the Appellant’s voluntary dismissal and entered its order dismissing the appeal.

This event suddenly awakened Appellee from its slumber and, for its very first act in this now nearly 23 months-long appeal, and a mere SIX DAYS after the dismissal order, counsel for Appellee filed the MOTION FOR APPELLATE ATTORNEY’S FEES now pending before the Court. NO PRIOR MOTION FOR ATTORNEY’S FEES WAS EVER FILED BY THE APPELLEE in this Court until after the dismissal of this appeal.²

FAILURE TO TIMELY FILE MOTION FORAPPELLATE ATTORNEY’S FEES

Without ever timely filing any motion, nor stating the grounds upon which it is seeking appellate attorney’s fees, save for its “status as prevailing party” on appeal and its “time expended . . . in defense of the appeal,” the latter of which frankly eludes this Court, Appellee’s post-dismissal MOTION utterly fails to identify the basis upon which it relies for any entitlement to such fees, whether contractual or statutory. Thus, the motion before this Court is controlled by the binding case law that precludes any award of attorney’s fees (notwithstanding the voluntary dismissal filed by United Auto), where, as here, no motion was filed therefor. This result is compelled by the Florida Supreme Court’s decision in United Services Automobile Association v. Phillips, 775 So.2d 921, 922 (Fla. 2002)[25 Fla. L. Weekly S705a], where, after quoting from Rule 9.400 (b), Fla. R. App. P., see note 2, supra, the Supreme Court held:

We interpret this language to require that a party seeking attorney’s fees in an appellate court must provide substance and specify the particular contractual, statutory, or other substantive basis for an award of fees on appeal. It is simply insufficient for parties to only refer to rule 9.400 or to rely on another court’s order in support of a motion for attorney’s fees for services rendered in an appellate court. We specifically recede from Salley v. City of St. Petersburg, 511 So.2d 975 (Fla.1987), to the extent that it suggests that appellate fees may be awarded, even if a party fails to comply with the substantive requirements of Florida Rule of Appellate Procedure 9.400(b).

Phillips has been followed repeatedly. See, e.g., State, Dept. of Highway Safety and Motor Vehicles v. Trauth, 971 So.2d 906, 908 (Fla. 3d DCA 2007) [32 Fla. L. Weekly D2931a] (“An award of appellate attorneys’ fees must be supported by a particular contractual, statutory, or other substantive basis. United Servs. Auto. Ass’n v. Phillips, 775 So.2d 921 (Fla.2000) [25 Fla. L. Weekly S705a]. Because the circuit court appellate, panel failed to state any basis for awarding attorneys’ fees, other than rule 9.400, the attorneys’ fee award cannot stand.”); Pardo v. Golding, __ So.3d __(Fla. 3d DCA Nov. 9, 2011) (2011 WL 5375107) (“Because the attorney’s fee provision of the promissory note between [the parties] does not include language that would permit awarding appellate attorney’s fees against parties to that particular agreement [citation omitted], there is no justification for the imposition of appellate attorney’s fees against the guarantors. * * * Accordingly, we deny Goldberg’s motion for fees.”); Bevan v. Cowart, 916 So.2d 822, 823 (Fla. 2d DCA 2005) [30 Fla. L. Weekly D1182a] (“Cowart requested attorney’s fees in her answer brief. However, she failed to file a separate motion in accordance with rule 9.400(b). Accordingly, we deny Cowart’s request for attorney’s fees.”); Home Depot v. Ferreira, 827 So.2d 371, 371-2 (Fla. 1st DCA 2002) [27 Fla. L. Weekly D2193a] (“Because the motion fails to comply with the requirement to state the particular basis for the requested award, it is denied. See rule 9.400(b), Fla. R.App. P.”); Shuler v. Darby, 786 So.2d 627, 630 (Fla. 1st DCA 2000) [26 Fla. L. Weekly D1153b] (“The motion made no reference to [the applicable attorney’s fee statute], or to any other statutory, contractual, or substantive basis for an award of fees on appeal. Therefore, the motion for fees and costs is facially insufficient.”), as clarified on denial of rehearing; Rados v. Rados, 791 So.2d 1130, 1132 (Fla. 2d DCA 2001) [26 Fla. L. Weekly D932a] (“a litigant who wants to pursue a claim for appellate attorney’s fees is required to file a motion in the appellate court under rule 9.400(b), stating the legal basis for the claim.”).

Thus, Appellee’s failure to file any motion for appellate attorney’s fees until after the dismissal of this appeal, and even that untimely motion’s failure to specify the statutory or contractual basis for such fees, alone requires the denial of appellate attorney’s fees in the case at bar.

THE “DE MINIMUS” NATURE OF APPELLEE’SAPPELLATE EFFORTS

Appellant opposes an award of appellate attorney’s fees for Appellee on the basis of the “de minimus” rationale employed by the Third District in denying such fees to an Appellee after a voluntary dismissal of an appeal entered before the “prevailing party” ever had to file a brief. Sanchez v. State Farm Florida Ins. Co., 997 So.2d 1209, 1209 (Fla. 3d DCA 2008) [34 Fla. L. Weekly D10a], is directly on point here:

We deny the appellee’s motion for attorney’s fees. The appellant voluntarily dismissed the appeal before briefs were filed. The only papers filed here by the appellee were a three-paragraph motion to impose sanctions and a four-paragraph motion for attorney’s fees. The issue is not whether the appellee “prevailed” here, see Arango v. United Auto. Ins. Co., 901 So.2d 320 (Fla. 3d DCA 2005) [30 Fla. L. Weekly D1129a], but rather whether fees and costs must be remanded, a further trial court hearing set, and additional judicial labor incurred, for activity best characterized as “de minimis.” Motion denied.

The only distinction here is that unlike the “prevailing” appellee in Sanchez (who had at least filed two short motions along the way prior to the voluntary dismissal), Appellee in the case at bar flagrantly violated the appellate rules, ignored this Court’s orders, filed NOTHING during the nearly two years this appeal was pending, with the exception of its belated and legally insufficient fee motion a mere six days after the Court recognized Appellant’s voluntary dismissal. Sanchez thus further compels the denial of Appellee’s MOTION FOR APPELLATE ATTORNEY’S FEES FOR APPEAL DISMISSED BY APPELLANT.

OTHER ISSUES REGARDING MOTION FORAPPELLATE ATTORNEY’S FEES

Finally, this Court need not reach, but will comment upon, Appellant’s assertion in its RESPONSE IN OPPOSITION, ¶ 3, that “attorney’s fees are not available for litigation related to the amount of attorney’s fees.” Appellant cites State Farm Fire & Cas. Co. v. Palma, 629 So.2d 830 (Fla. 1993), for such a rule. Palma held:

Our conclusion that statutory fees may be awarded for litigating the issue of entitlement to attorney’s fees but not the amount of attorney’s fees comports with the purpose of section 627.428 and with the plain language of the statute. If the scope of section 627.428 is to be expanded to include fees for time spent litigating the amount of attorney’s fees, then the Legislature, rather than this Court, is the proper party to do so. 629 So.2d at 833.

For a comprehensive analysis of Palma’s distinction between the allowance of attorney’s fees for litigating the entitlement thereto on the one hand while not allowing attorney’s fees for litigating the amount of such fees on the other, see, Oquendo v. Citizens Property Ins. Corp., 998 So.2d 636, 641 (Fla. 3d DCA 2008) [33 Fla. L. Weekly D2737a]. Also analyzing Palma, the Third District, in Mercury Cas. Co. v. Flores, 905 So.2d 179, 181 (Fla. 3d DCA 2005) [30 Fla. L. Weekly D793a], rev. denied, 928 So.2d 335 (Fla. 2006), quoting from and agreeing with Allstate Indemnity Co. v. Hicks, 880 So.2d 772, 774 (Fla. 5th DCA 2004) [29 Fla. L. Weekly D1523a], said:

In State Farm Fire & Casualty Co. v. Palma, 629 So.2d 830, 833 (Fla.1993), the supreme court held that attorney’s fees may be awarded under section 627.428 for litigating the issue of entitlement to an award of attorney’s fees, but not for litigating the amount of attorney’s fees to be awarded. 905 So.2d at 181.

On rehearing, the Third District in Mercury clarified that the prevailing party, there the plaintiff, “is entitled to an award of that portion of her appellate attorney’s fees reasonably expended in defending [a multiplier award].” Id. at 183. Thus, were this Court to reach the merits of Appellee’s MOTION FOR APPELLATE ATTORNEY’S FEES, the Court would in all likelihood remand for a determination of entitlement to such fees, and leave to the discretion of the trial court the appropriate amount of such fees. However, in view of Phillips’ absolute bar to recovery of such fees in any amount due to Appellee’s failure to timely³ move for or specify the basis for such fees, we need not address Palma’s entitlement vs. amount conundrum.

CONCLUSION

Based upon the above controlling authorities, this Court must deny Appellee’s MOTION FOR APPELLATE ATTORNEY’S FEES.

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¹There was no objection lodged by Appellee to consolidation of the four separate appeals.

²Rule 9.400 (b), Fla. R. App. P., provides, in pertinent part, that such a motion “may be served not later than the time for service of the reply brief and shall state the grounds on which recovery is sought.” [Emphasis added].

³Were Appellee to assert that the Rule’s deadline for filing of a motion for attorney’s fees of “not later than the time for service of the reply brief’ never came to pass for the reason that this Court’s September 21, 2011 order prohibited Appellee from filing any Answer Brief, and thus no Reply Brief ever became due, the Court would point out that such was the inexorable result of the Appellee’s total dereliction of its duty to file an Answer Brief ab initio. Such an argument were it be made would be both disingenuous and “sounds a bit like the apocryphal story of the man who kills both his parents and begs the court for mercy because he is an orphan.” Hayes v. Guardianship of Thompson, 952 So.2d 498, 509 (Fla. 2006) [31 Fla. L. Weekly S763a] [footnote omitted]. As recently expressed by Senior Judge Schwartz in Ramirez v. United Auto Ins. Co., 67 So.3d 1174, 1175 n. * (Fla 3d DCA 2011) [36 Fla. L. Weekly D1823a], taking such a position could lead one “to substitute [his or] her own preferred equivalent expression. See, e.g., Hayes v. Guardianship of Thompson, 952 So.2d 498, 509 n. 14 (Fla.2006) [31 Fla. L. Weekly S763a] (chutzpah); Zabrani v. Riveron, 495 So.2d 1195, 1197 n. 2 (Fla. 3d DCA 1986) (same); Price v. Gray’s Guard Service, Inc., 298 So.2d 461, 464 (Fla. 1st DCA 1974) (intestinal fortitude).” Ramirez does not involve the failure of the “prevailing party” to file a motion for appellate attorney’s fees, was not a voluntary dismissal before any briefing by the appellee there, and, indeed, the appeal was fully briefed and resulted in a decision, albeit a PCA.

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