20 Fla. L. Weekly Supp. 808a
Online Reference: FLWSUPP 2008PEACInsurance — Personal injury protection — Attorney’s fees — Absence of justiciable issues — Litigation against insurer over unpaid bills which, in fact, had been returned to plaintiff by postal service with notation that address was invalid — Sanctions imposed against plaintiff only, not plaintiff’s counsel
CONFIDENT WELLNESS CENTER, P.A. (A/A/O MARCUS PEACOCK), Plaintiff(s), vs. UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant(s). County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 10-22028-SP-23 (02). January 24, 2013. Rehearing denied May 30, 2013. Honorable Caryn Canner Schwartz, Judge. Counsel: Rami Shmuely, Shmuely & Willis, P.A., North Miami; and Craig Blinderman, Kurkin Forehand Brandes LLP, Aventura, for Plaintiff. Reuven T. Herssein, Herssein Law Group, North Miami, for Defendant.
ORDER GRANTING USAA’S MOTIONFOR ATTORNEY’S FEES AND COSTS PURSUANTTO FLORIDA STATUTES §57.105 AND DENYINGUSAA’S MOTION FOR ATTORNEY’S FEESPURSUANT TO RULE 1.442 AND §768.79
THIS CAUSE came before the Court on October 12, 2012, for hearing of United Services Automobile Association [“USAA”] Motion for Attorney’s Fees and Costs, and the Court, having reviewed the Motion, the entire Court file, and the relevant legal authorities; having heard argument of counsel; having made a thorough review of the matters filed on record; and having been sufficiently advised on the premises, issued an Order dated October 12, 2012, which summarized the Court’s rationale and ruling and which requested Defendant to submit a more detailed order. The Defendant submitted a more detailed Order on November 7, 2012, which the Court modified, as reflected in this opinion.
The narrow issue before this Court is whether the Defendant in this case, is entitled to an award of its attorney’s fees and costs, pursuant to Fla. R. Civ. P. 1.442 and Fla. Stat. §768.79 and §57.105.
FINDINGS OF FACT
Confident Wellness Center P.A., [“Plaintiff”] originally brought suit seeking personal injury protection [“PIP”] benefits against the wrong defendant, USAA Casualty Insurance Company. In response to that lawsuit, counsel for USAA informed the Plaintiff that they named the wrong defendant entity and that the bills that were in dispute in the suit were received late. Plaintiff voluntarily dismissed that suit against USAA Casualty Insurance Company, and then re-filed the instant suit naming the correct defendant — USAA.
In response to the instant lawsuit, USAA served a second notice of intent to seek §57.105 sanctions, again informing the Plaintiff that it was not entitled to reimbursement for the bills at issue, as the Plaintiff had failed to timely submit the bills. Plaintiff ignored the 57.105 notice of sanctions and continued to litigate the case.
During the pendency of the litigation on this suit, on December 17, 2010, USAA served the Plaintiff with a Proposal for Settlement, pursuant to and in accordance with Fla. R. Civ. P. 1.442, and Fla. Stat. §768.79, which was rejected by the Plaintiff. On November 18, 2011 — 289 days after serving the Notice of Intent to move for Sanctions — USAA filed its Motion for Sanctions Pursuant to, and in Accordance with, Florida Statute §57.105.
On February 7, 2012, the day after the deposition of the plaintiff’s person with the most knowledge of the case, Natalia Kudlay, Plaintiff issued a voluntary dismissal of the case. Subsequent thereto, USAA timely filed its Motion for Attorney’s Fees and Costs pursuant to Fla. R. Civ. P. 1.442 and Fla. Stat. §§768.79 and §57.105. There is no factual dispute that the Plaintiff received both the proposal for settlement, and the 57.105 motion, and that USAA met all the technical service requirements.
The Plaintiff contests USAA’s entitlement to attorney’s fees and costs pursuant to Fla. Stat. §768.79, alleging that USAA is not the prevailing party for purposes of Fla. R. Civ. P. 1.442 and Fla. Stat. §768.79. Plaintiff contends that the first dismissal by the Plaintiff involved the case filed against USAA Casualty Insurance Company, a different entity, and therefore the dismissal in this case should not be considered to be a second dismissal — a dismissal with prejudice. Plaintiff also alleges USAA failed to meet the requisite standard for an award of attorney’s fees and costs, pursuant to Florida Statute §57.105.
ANALYSIS
Defendant is Not Entitled to Recovery per the Proposal for Settlement served Pursuant to Fla. R. Civ. P. 1.525, Fla. R. Civ. P. 1.442, Fla. Stat. §768.79
The Court finds that the facts and circumstances of this case do not entitle USAA to recover reasonable attorney’s fees and costs incurred in defense of the instant suit, in accordance with Fla. R. Civ. P. 1.525, Fla. R. Civ. P. 1.442, Fla. Stat. §768.79. This court finds that the voluntary dismissal was the first one filed in this case and, therefore, was not a dismissal “with prejudice”. When Plaintiff first brought suit, it filed suit against an entirely different entity, USAA Casualty Insurance Company. Plaintiff dismissed that lawsuit against USAA Casualty Insurance Company and re-filed this case, naming United Services Automobile Association as the Defendant. Accordingly, the dismissal in the instant case was only the first for the lawsuit brought against United Services Automobile Association and therefore is deemed to be without prejudice. See Tyson v. Viacom Inc., 890 So 2d 1205 [4th DCA 2005] [28 Fla. L. Weekly D2420c]
Defendant is Entitled to Recovery Pursuant to Florida Statute. §57.105 & §57.041(1)
Based on the facts and underlying circumstances of this case, after reviewing all the relevant documents in the Court file and the deposition transcript of plaintiff’s person with the most knowledge — Natalia Kudlay — this court finds the plaintiff knew or should have known that the claim was not supported by the material facts necessary to establish the claim. Plaintiff held the proof from the Unites States Postal Service [“USPS”] that the bills at issue in this suit, which Plaintiff represented as having been sent timely and received by USAA, were, in fact, returned to Plaintiff by the USPS. The document from the USPS indicates that the address on the envelope containing the disputed bills was invalid, and the envelope was returned to the Plaintiff. The record and evidence establish that the bills prior to, and after, the set of bills at issue, were received and paid by USAA. It was only the set of bills at issue that were not paid and were in dispute in this suit, because USAA never received them. Had Plaintiff reviewed the document from the USPS, over a year and half of litigation could have been avoided.
Florida Statute §57.105 provides, in pertinent part:
“(1) Upon the court’s initiative or motion of any party, the court shall award a reasonable attorney’s fee, including prejudgment interest, to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial: (a) Was not supported by the material facts necessary to establish the claim or defense; . . .”
In the Third District case of Rodell v. Narson, 706 So. 2nd 392 (Fla. 3d DCA, 1998) [23 Fla. L. Weekly D524a], the Court held, “Attorney’s fees will not be awarded pursuant to section 57.105, Florida statutes, unless the court finds a total or absolute lack of a justiciable issue, which is tantamount to a finding that the action is frivolous . . . and so clearly devoid of merit on the facts and the law as to be completely untenable.”
The Court in Whitten v. Progressive Cas. Ins. Co., 410 So.2d 501 (Fla. 1982) held, in pertinent part, “As a prerequisite to an award of attorney’s fees under section 57.105, the court must find “a complete absence of a justiciable issue of either law [**9] or fact raised by the losing party.” Allen v. Estate of Dutton, 384 So.2d 171 (Fla. 5th DCA 1980), interpreted this phrase to mean a total or absolute lack of a justiciable issue, which is tantamount to a finding that the action is frivolous. The district court held that “a trial court must find that the action is so clearly devoid of merit both on the facts and the law as to be completely untenable.” Id. at 175(emphasis in original). See Trexler v. Fiat Motor Co., 400 So.2d 1320 (Fla. 5th DCA 1981);Executive Centers of America, Inc. v. Durability Seating & Interiors, Inc., 402 So.2d 24 (Fla.3d DCA 1981); Buckner v. Allergan Pharmaceuticals, Inc., 400 So.2d 820 (Fla. 5th DCA 1981);Braden River Civic Association v. Manatee County, 403 So.2d 1007 (Fla.2d DCA 1981); Kisling v. Wooldridge, 397 So.2d 747 (Fla. 5th DCA 1981); Sachs v. Hoglund, 397 So.2d 447 (Fla.3d DCA 1981); White v. Montebello Corp., 397 So.2d 326 (Fla. 5th DCA 1981); City of Deerfield Beach v. Oliver-Hoffman Corp., 396 So.2d 1187 (Fla. 4th DCA 1981); Denes & Denes & Associates, Inc. v. Walter E. Heller & Co., 396 So.2d 760 (Fla.3d DCA 1981); [**10] T.I.E. Communications, Inc. v. Toyota Motors Center, Inc., 391 So.2d 697 (Fla.3d DCA 1980);Hernandez v. Leiva, 391 So.2d 292 (Fla.3d DCA 1980); Love v. Jacobson, 390 So.2d 782 (Fla.3d DCA 1980).
The holdings of Allen v. Estate of Dutton and these later cases comport with the intent of the legislature in adopting the statute. See Note, Attorney’s Fees: Florida Statute 57.105, 5 Nova L.J. 89 (1980), and sources cited therein. A trial court’s finding of a complete lack of a justiciable issue is justified in cases where the attempt to create a controversy is frivolous. Hernandez v. Leiva, 391 So.2d at 295. . . .
The purpose of section 57.105 is to discourage baseless claims, stonewall defenses and sham appeals in civil litigation by placing a price tag through attorney’s fees awards on losing parties who engage in these activities. Such frivolous litigation constitutes a reckless waste of judicial resources as well as the time and money of prevailing litigants. Sachs v. Hoglund, 397 So.2d at 448. See also Executive Centers of America, Inc. v. Durability Seating & Interiors, Inc.; Parkway General Hospital, Inc. v. Stern, 400 So.2d 166 (Fla.3d DCA 1981); T.I.E. Communications, Inc. v. Toyota Motors Center, Inc.; Hernandez v. Leiva. . . .”
CONCLUSION AS TO §57.105 FEES AND §57.041(1) COSTS
In the instant case, this Court finds that the Plaintiff’s action is so clearly devoid of merit both on the facts and the law as to be completely untenable and therefore finds a total and absolute lack of a justiciable issue in Plaintiff’s claim.
Furthermore, Florida statute § 57.041(1) states, “The party recovering judgment shall recover all his or her legal costs and charges which shall be included in the judgment. . .”
Because the Court is prohibited from violating attorney client privilege to determine a good faith basis and the existence of the material facts represented by Plaintiff to Plaintiffs’ counsel, the court grants entitlement to an award of attorneys fees to USAA, pursuant to Florida Statute §57.105 & §57.041(1) against the Plaintiff only, not its attorney. The amount of fees will be determined at an evidentiary hearing.
ORDER DENYING PLAINTIFF’S AMENDEDAND SUPPLEMENTAL MOTION FOR REHEARING,RECONSIDERATION AND/OR CLARIFICATION;AND PLAINTIFF’S MOTION FOR SANCTIONSAGAINST DEFENDANT’S COUNSEL
THIS matter came before the Court on PLAINTIFF’S AMENDED AND SUPPLEMENTAL MOTION FOR REHEARING, RECONSIDERATION AND/OR CLARIFICATION; AND PLAINTIFF’S MOTION FOR SANCTIONS AGAINST DEFENDANT’S COUNSEL The Court Denies Plaintiff’s said Motions for the reasons set forth below.
The Court reviewed Plaintiff’s said Motion and all attachments thereto, as well as having re-reviewed all file documents and attachments, including, but not limited to, the Court’s detailed four page Order Granting USAA’s Motion For Attorney’s Fees and Costs Pursuant to Florida Statute 57.105 And Denying USAA’s Motion For Attorney’s Fees Pursuant to Rules 1.442 and Section 768.79, the ENTIRE TRANSCRIPT OF THE October 12, 2012 hearing on Defendant’s said Motion, Defendant’s Motions For Attorney’s Fees, Costs and Sanctions Pursuant to Florida Statute 57.105, all applicable attachments thereto, the deposition transcript of Natalia Kudlay, and all applicable documents filed by the Plaintiff. The Court also reviewed and re-reviewed all relevant legal authorities and all memoranda submitted by the parties.
Motions For Reconsideration and Motions For Rehearing are not to be used as a vehicle to present new arguments, evidence, or authority that had been raised or could have been raised at the hearing on the original motion, and/or raised in a party’s Motion or Response, or to introduce novel legal theories, or to raise the same or similar/familiar arguments, but with a different approach or emphasis, in the hope that the Court will change its mind. This rationale prevents the moving party from having “two bites at the apple”. If this Court, after reviewing Plaintiff’s Motion and attachments and after reviewing all file documents, case law, statutory authority, etc., felt that her decision was or may be incorrect, for any reason, this Court would have no problem setting the Plaintiff’s motion for hearing and further argument by the parties. The Court considered all factual and legal matters regarding the issue before rendering her ruling on October 12, 2012 and January 24, 2013. There was no mistake, inadvertence, surprise, excusable neglect, error, nor any manifest injustice. The Court’s January 24, 2013 Order is a detailed four page order that clearly sets forth the Court’s reasoning for her ruling. The Court finds that there is no need for clarification of the Court’s January 24, 2013 Order.
Accordingly, PLAINTIFF’S AMENDED AND SUPPLEMENTAL MOTION FOR REHEARING, RECONSIDERATION AND/OR CLARIFICATION IS DENIED. FOR THE REASONS SET FORTH ABOVE, PLAINTIFF’S MOTION FOR SANCTIONS AGAINST DEFENDANT’S COUNSEL IS ALSO DENIED.
* * *
