24 Fla. L. Weekly Supp. 239a
Online Reference: FLWSUPP 2403CRESInsurance — Attorney’s fees — Claim or defense not supported by material facts or applicable law — Sanctions under section 57.105 are apportioned equally between medical provider and provider’s counsel where counsel has not offered any evidence to show that he acted in good faith based on representations of provider in filing suit
SPINE REHABILITATION CENTER, INC., A/A/O Rafael Crespo, Plaintiff, vs. MERCURY INSURANCE COMPANY OF FLORIDA, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, General Civil Division. Case No. 07-CC-22879, Division L. February 25, 2016. Kim Hernandez Vance, Judge. Counsel: Timothy A. Patrick, Tampa, for Plaintiff. David B. Kampf, Ramey & Kampf, P.A., Tampa, for Defendant.
ORDER ALLOCATING Fla. Stat.§ 57.105 SANCTION AWARD
THIS CAUSE, having come before the Court on December 3, 2015 for final evidentiary hearing on the sole issue of the apportionment of sanctions awarded by this Court pursuant to Section 57.105 of the Florida Statutes after hearing on May 12, 2009, which sanctions were liquidated as to amount by the Court on June 30, 2011, and then reduced to Final Judgment on October 24, 2011. Defendant, MERCURY INSURANCE COMPANY OF FLORIDA (“Defendant”) noticed the apportionment hearing initially for October 29, 2015 and then continued the hearing to December 3, 2015, upon Timothy A. Patrick’s ore tenus request for a continuance in open court on October 29, 2015. The Court, having considered the testimony of the parties, noting that neither Defendant nor Mr. Patrick called Plaintiff, SPINE REHABILITATION CENTER, INC., A/A/O Rafael Crespo, (“Plaintiff”) as a witness on the issue of apportionment at either hearing; having considered: (1) Timothy A. Patrick’s pending Motion for Rehearing (filed 3/16/15) and ore tenus motion for a reconsideration of the Court’s award of sanctions made in open court during both hearings on the basis of an alleged lack of notice and due process; (2) Defendant’s Motion for Sanctions and Defendant’s Response to Plaintiff’s Motion for Reconsideration of Entitlement (filed 12/3/15), and (3) Defendant’s Amended Memorandum of Law in Opposition to Plaintiff’s Request for an Evidentiary Hearing in Place of Defendant’s Motion for Sanctions, and Defendant’s Response to Plaintiff’s Motion for Reconsideration of Entitlement dated December 3, 2015 (filed 12/3/15); having considered the testimony of Timothy A. Patrick and the legal arguments of Mr. Patrick and of counsel for the Defendant, and having reviewed the entirety of the Court file, finds as follows:
(1) Timothy A. Patrick was properly noticed of the Court’s April 13, 2009 hearing on Defendant’s Second Motion for Sanctions at which sanctions were awarded, and declined to appear. On May 12, 2009 after consideration of the evidence and argument presented by Defendant at the April 13, 2009 hearing, this Court entered its Order Granting Mercury’s Second Motion for Sanctions, which states:
A review of the evidentiary documents including affidavits and deposition transcripts, combined with applicable pleadings and motion, reveals that Plaintiff and Plaintiff’s attorney should have known that the complaint and claims contained in the complaint were not supported by material facts necessary to establish a claim and would not be supported by the application of then-existing law to those material facts. Further, there is no evidence that the claim, when initially presented, was a good faith argument for the extension, modification or reversal of existing law or the establishment of new law.
(2) On June 22, 2009, the Court entered its Order Denying Plaintiff’s Motion for Rehearing, Motion to Set Aside Order and Motion for Sanctions upon Plaintiff’s motion requesting the Court to reconsider and vacate its May 12, 2009 Order Granting Mercury’s Second Motion for Sanctions.
(3) Accordingly, the Court finds that it has already ruled on Timothy A. Patrick’s motion for reconsideration as to the sanctions awarded under Section 57.105 of the Florida Statues, and the time for Timothy A. Patrick to have moved for rehearing, reconsideration or to appeal this Court’s later rulings establishing the amount of the sanction and entering final judgment in the amount of $14,125.00 on June 30, 2011 and October 24, 2011 respectively, has long expired.
(4) The Court further finds that “Plaintiff’s Counsel” (Timothy A. Patrick, Lipscomb, Nicholas & Patrick, PA, and Nicholas and Patrick, PA — see Order on Defendant’s Motion to Enforce Sanctions Against Joseph E. Nicholas and Nicholas Law Group, PLLC dated March 11, 2015) offered no set of facts and/or legal argument that would vest this Court with authority to now reconsider rulings entered in 2009 and 2011 under Rule 1.530 or Rule 1.540 of the Florida Rules of Civil Procedure or any other applicable rule or statute.
(5) Florida Statues section 57.105(1) provides for sanctions to be paid “in equal amoutns by the losing party and the losing party’s attorney.” A losing party’s attorney, in this case Plaintiff’s Counsel, can avoid liability for an award of monetary sanctions upon a showing that counsel acted in good faith, based upon the representations of his client as to the existence of the material facts upon which the suit was based. Upon consideration of the record evidence presented, the Court finds that Plaintiff’s Counsel failed to offer any evidence whatsoever to show that he acted in good faith based upon the representations of his client in filing the suit during either the October 29, 2015 evidentiary hearing or the December 3, 2015 continued evidentiary hearing.
WHEREFORE it is hereby ORDERED and ADJUDGED that:
1. Timothy A. Patrick’s Motions for Rehearing filed on March 16, 2015 and ore tenus motion for rehearing/reconsideration are DENIED.
2. The Final Judgment award of $14,125.00 plus accrued statutory interest from October 24, 2011 shall be apportioned equally between the Plaintiff and Plaintiff’s Counsel.
3. The Court reserves jurisdiction to consider Defendant’s pending Motion for Sanctions filed on December 3, 2015.
