25 Fla. L. Weekly Supp. 415a

Online Reference: FLWSUPP 2505MASIInsurance — Personal injury protection — Attorney’s fees — Orders denying provider’s motions for trial-level attorney’s fees did not violate mandates from circuit court or Florida Supreme Court finding provider entitled to appellate attorney’s fees and a new trial where provider accepted a settlement which included trial-level attorney’s fees — Provider not entitled to trial fees under inequitable conduct doctrine based on insurer’s post-settlement actions, as county court correctly concluded that post-settlement behavior arose from mutual mistake rather than bad faith

CUSTER MEDICAL CENTER, INC, a/a/o Maximo Masis, Appellant, v. UNITED AUTOMOBILE INSURANCE COMPANY, Appellee. Circuit Court, 11th Judicial Circuit (Appellate), in and for Miami-Dade County. Case No. 2014-456 AP. L.T. Case No. 2002-2197 CC24. June 14, 2017. An appeal of decisions by the County Court in and for Miami-Dade County. Rodney Smith and Rodolfo A. Ruiz, Judges. Counsel: Lewis J. Mertz, Jr., Marlene S. Reiss, and Virginia M. Best, for Appellant. Dawn N. Jayma, John-Paul Rodriguez, Michael J. Neiman, and Raoul G. Cantero, for Appellee.

(Before ESPINOSA, DIAZ, & REBULL, JJ.)

(PER CURIAM.) Custer Medical Center [Custer] appeals several orders denying it trial-level attorney’s fees that allegedly violate mandates from this Circuit and the Florida Supreme Court finding Custer entitled to appellate attorney’s fees, and a new trial. We have jurisdiction, Fla. R. App. P. 9.030(c)(1); and unless the “determination . . . is based on a question of law [which is assessed] de novo,” “we review a trial court’s order denying attorney’s fees for abuse of discretion.” Wells v. Halmac Dev., Inc., 189 So. 3d 1015, 1019 (Fla. 3d DCA 2016) [41 Fla. L. Weekly D924a]. However, as detailed below, Custer accepted a settlement payment in this case from United Automobile Insurance Company [United], and thus, new trial would create a “manifest injustice.” We, therefore, affirm the orders below, and since Custer did not prevail in this appeal, its motion for appellate attorney’s fees under section 627.428, Florida Statutes is denied.

FACTS & PROCEDURAL HISTORY

Nearly fifteen years ago, on September 11, 2002, Custer filed this personal injury protection [PIP] suit against United in county court that ended with the entry of a directed verdict two years later. Custer appealed, and on December 6, 2005, this Circuit remanded the case for new trial and granted Custer’s motion under section 627.428, Florida Statutes for appellateattorney’s fees; the trial court was also directed to set the fee amount. On February 14, 2006, this Court issued an amended opinion clarifying that Custer must prevail at its remanded trial to receive appellate fees. United subsequently obtained second-tier certiorari relief from the Third District Court of Appeal [Third DCA], and on October 27, 2008, Custer appealed to the Florida Supreme Court, which on November 4, 2010 vacated the Third DCA’s opinion and reinstated this Court’s decision. The Florida Supreme Court also granted Custer’s section 627.428 motion for appellate attorney’s fees and instructed the trial court to fix the amount.

However, on August 7, 2006, while this matter was pending before the Third DCA, the parties settled this and 1,142 other PIP cases. Custer’s trial counsel filed a “Notice of Voluntary Dismissal with Prejudice” on November 27, 2006 in the county court stating that the case had “been amicably resolved between the parties, pursuant to Rule 1.420, Florida Rules of Civil Procedure.” The parties’ appellate counsels, though, were apparently unaware of the settlement as neither raised it with the Third DCA, and Custer subsequently sought rehearing from the Third and the Florida Supreme Court’s review. United seems to have learned of the settlement while drafting its Florida Supreme Court merits brief because it attached the dismissal to its answer. Custer responded by moving to strike the document for “not [being] part of the record in this Court . . . the circuit court or Third District.” Custer also argued this case was excluded from the 2006 settlement, and that the dismissal was not only inadvertently filed, it was submitted to the wrong court since it was the Third DCA that had jurisdiction of this case in November 2006, not the county court. The Florida Supreme Court summarily granted this motion on February 24, 2010 and issued its overall case mandate on June 9, 2011.

Upon remand to the county court, a hearing was held on August 16, 2011, where Custer announced it was seeking trial-level attorney’s fees. Discovery occurred, and on September 12, 2011, Custer filed a motion stating it was entitled to fees because the settlement did not include this case and the above mandates. This motion was heard on December 16, 2011, where it was orally denied because the judge noted that parties are not precluded from settling. The judge also noted that the voluntary dismissal was filed in November 2006, yet Custer did not seek fees until September 2011. Florida Civil Procedure Rule 1.525 requires “[a]ny party seeking . . . attorneys’ fees [to] serve a motion no later than 30 days after . . . service of a notice of voluntary dismissal, which . . . concludes the action as to that party.” Further, the judge cited cases such as Freeman v. Sanders, 562 So. 2d 834 (Fla. 1st DCA 1990) which holds that “inadvertent dismissal . . . ‘with prejudice,’ rather than ‘without prejudice’ [is] a substantive error that [can] only be remedied under rule [1.540b if the party seeks] relief . . . within one year of the error.” The court issued its written order on December 22, 2011, and on January 10, 2012, Custer sought rehearing on the grounds that the county judge ruled 1) upon a matter not noticed, and 2) prematurely as no final judgment had been entered. This motion was heard and denied on August 10, 2012, but no order was docketed or sent to Custer.¹

Custer, nevertheless, continued campaigning for attorney’s fees. On October 5, 2012, it moved for appellate fees on the same bases of its 2011 trial fee motion, and further discovery ensued. United ultimately responded by moving to enforce the 2006 settlement on March 24, 2014, and a hearing was held on April 7, 2014, where the parties again debated the settlement’s scope. This time though, the court took the agreement negotiators’ testimony and reviewed other related parol evidence that showed, in pertinent part:

•

The instant matter was not resolved when the 2006 settlement was signed because Custer did not have settlement authority at that time. It was instead on a list of cases that could be settled pursuant to the agreement if Custer obtained said authority in sixty days. Custer ultimately obtained permission to settle all of these listed cases between August and November 2006 with the authority to resolve this case being obtained around November 7, 2006.

•

United subsequently issued Custer a check for this case that was cashed by November 15, 2006, which is twelve days before the disputed voluntary dismissal was filed. There was no other settlement/agreement involving the instant matter.²

Upon the hearing’s conclusion, the judge found that while the parties’ post-settlement behavior was odd, the 2006 settlement included this case, and Custer had been paid trial-level attorney’s fees as part of the settlement and thus could not collect more trial fees.³ The court, however, reserved jurisdiction on whether Custer was entitled to appellate fees.

On April 29, 2014, Custer moved to determine its appellate fee amount based on 1) the aforementioned appellate mandates unconditionally finding entitlement; 2) United’s repeated stipulations on entitlement; and 3) the inequitable conduct doctrine as a way of punishing United for allegedly settling this case yet continuing the appellate process. This motion was heard on September 19, 2014, where United agreed that Custer was entitled to appellate fees, but argued Custer’s appellate counsel must be paid from the 2006 settlement proceeds, rather than United, because the 2006 agreement’s release stated that all attorney’s fees were included in the settlement. United also argued the inequitable conduct doctrine is inapplicable because rather than being acts of bad faith, the post-settlement appeals arose from a mutual mistake/breakdown in communication. The trial court agreed, and on October 24, 2014, it issued an order finding Custer entitled to no additional appellate fees.

Custer responded in a four-fold fashion. First, it filed separate appeals with this Circuit challenging the denials of its trial and appellate fees. Second, it asked the Florida Supreme Court to enforce its 2011 mandate by ordering an evidentiary hearing in county court to determine a reasonable appellate attorney’s fee, and on February 15, 2015, the Court granted this motion. More specifically, it ordered the county court to set Custer’s appellate fees without giving any consideration to the 2006 settlement because it had not been previously before the Court. Custer then asked this Circuit to relinquish jurisdiction of each appeal, a request that was granted for the appellate fee issue (Case No. 14-505ap) but denied as to trial fees, which is the scope of the instant appeal. Finally, Custer moved for the county court to vacate every order it issued since the Florida Supreme Court’s 2011 mandate, but the court only rescinded its appellate fee orders. On August 19, 2016, the trial judge stayed all proceedings on Custer’s appellate fees until this appeal was decided because it could impact that issue.

DISCUSSION

The trial court issued two orders finding Custer ineligible for trial-level attorney’s fees. First, in 2011, it denied fees because Custer 1) failed to seek fees after the voluntary dismissal’s filing within Rule 1.525’s thirty-day timeline, and 2) failed to vacate said dismissal within Rule 1.540’s one-year deadline. Second, in 2014, it found Custer received its trial fees as part of the 2006 settlement.⁴ Custer claims these orders violate the aforementioned appellate mandates and thus must be reversed because trial courts must follow appellate court mandates. Hearns v. State, 54 So. 3d 500, 502 (Fla. 3d DCA 2010) [41 Fla. L. Weekly D924a] (“ ‘A trial court’s role upon the issuance of a mandate from an appellate court becomes purely ministerial, and its function is limited to obeying the appellate court’s order or decree. A trial court does not have discretionary power to alter or modify the mandate.’ ”) (internal citation omitted). Custer also argues the Florida Supreme Court knew of the settlement and dismissal when it granted Custer’s motion to strike, and thus, per the law of the case doctrine, the trial court could not rely on either document to deviate from these mandates. See Specialty Restaurants Corp. v. Elliott, 924 So. 2d 834, 837 (Fla. 2d DCA 2005) [31 Fla. L. Weekly D67a] (holding that said “doctrine includes not only issues explicitly ruled upon . . . but also those issues which were implicitly addressed or necessarily considered.”). Custer, however, misstates the scope of the appellate mandates and the law of the case doctrine. Law of the case provides that a trial court cannot modify, nullify, or evade an appellate court’s mandate, and that “questions of law decided on appeal . . . must govern the case in the same court and the trial court, through all subsequent states of the proceedings[.]” Brunner Enters. Inc. v. Dep’t of Revenue, 452 So. 2d 550, 552 (Fla. 1984) (internal citations and quotations omitted). This rule, though, is “limited to rulings on questions of law actually presented and considered on a former appeal;” a trial court is thus not precluded from ruling on issues that “ ‘have not necessarily been determined or become law of the case.’ ” Florida Dept. of Transp. v. Juliano, 801 So. 2d 101, 106 (Fla. 2001) [26 Fla. L. Weekly S784a] (internal citation omitted).

Here, Custer’s trial fee entitlement was never “actually presented and considered” in a prior appeal. The fee motions granted by this Circuit and the Florida Supreme Court were only for appellate fees. Similarly, the motion Custer filed in 2014 with the Florida Supreme Court to enforce its 2011 mandate only discussed appellate fees, and the Court’s subsequent order only directed the trial judge to determine those fees. Custer is thus striving to piggyback the trial fee issue onto the appellate fee mandates. Trial fees only arose once this case was remanded, and the court denied Custer’s request for said fees based on the voluntary dismissal. Given that the Florida Supreme Court granted Custer’s motion to strike the voluntary dismissal as non-record material, this document was also not “actually presented and considered” by an appellate court, and thus, the law of the case doctrine did not preclude the county court from considering it or rendering it void/unenforceable. The Court’s 2015 enforcement order, moreover, only barred the trial judge from considering the 2006 settlement when deciding Custer’s appellate fees. See Dandar v. Church of Scientology Flag Serv. Org., Inc., 190 So. 3d 1100, 1104 (Fla. 2d DCA 2016) [41 Fla. L. Weekly D534c] (holding that when an appellate court’s decision “was not [facially] based on” or “reflects no consideration of the issue,” it is not law of the case) (internal citations and quotations omitted). Custer, therefore, is interpreting the mandates at hand too broadly. More specifically, a court can only provide the relief a party requested, Wachovia Mortg. Corp. v. Posti, 166 So. 3d 944, 945 (Fla. 4th DCA 2015) [40 Fla. L. Weekly D1404c]; and the mandates’ underlying motions reveal that the trial judge could in fact consider the settlement and dismissal when assessing trial fees. The Florida Supreme Court, after all, only granted Custer’s motions to 1) strike these items as non-record material, and 2) enforce its appellate fee mandate without considering the foregoing documents because they were not previously before the Court.

Thus, the law of this case is the following: Custer is entitled to an appellate attorney’s fee award without any consideration of the 2006 settlement, and retrial. Given that it relinquished jurisdiction over the appellate fee issue, this Court must only address the new trial dispute related to its own 2005 mandate that was reinstated by the Florida Supreme Court, and here, Custer claims the county court prematurely denied trial fees because it had not yet retried the case. However, since Custer never sought new trial and only attempted to collect fees, its post-remand conduct undermines this claim. Custer’s 2011 fee motion and 2014 enforcement motion, for instance, do not assert the mandates were violated because this case had not been retried. Moreover, the law of the case doctrine does not prohibit the consideration of new facts or circumstances. See Delta Prop. Mgmt. v. Profile Invs., Inc., 87 So. 3d 765, 770 (Fla. 2012) [37 Fla. L. Weekly S157a] (“ ‘ [A] trial court is bound to follow prior rulings of the appellate court as long as the facts on which such decision are based continue to be the facts of the case.’ ”) (internal citation omitted). The doctrine also does not apply if “ ‘manifest injustice’ will result from a strict and rigid adherence to the rule,” Dandar 190 So. 3d at 1104; and appellate courts have “power to reconsider and correct” any ruling(s) that create said injustice. See Fla. Diversified Films, Inc. v. Simon Roofing & Sheet Metal Corp., 118 So. 3d 240, 242 (Fla. 3d DCA 2013) [38 Fla. L. Weekly D1552a] (internal citations and quotations omitted).

This latter exception plainly applies to this case because the record shows that Custer accepted a settlement payment, and thus, retrial would create a manifest injustice by permitting Custer to possibly “double-dip” and recover twice from the same injury. While this Circuit can therefore modify its mandate, the prior order was not violated because nothing prevents parties from settling their case. Wallace v. Townsell, 471 So. 2d 662, 664 (Fla. 5th DCA 1985)⁵ (“The parties to a civil action have the right to settle the controversy between them by agreement at any time and an agreement settling all issues in the case is binding not only upon the parties but also upon the court.”).

Finally, Custer claims trial fees under the inequitable conduct doctrine as a way of punishing United for its post-settlement actions. While it is odd that the appellate process continued after this case was settled, the county court correctly found this behavior arose from mutual mistake rather than bad faith. For instance, neither side’s trial counsel informed its appellate attorney of the 2006 settlement, and thus, both sides contributed to the litigation’s continuation. Moreover, it is not unusual for an appellate court to rule on the merits of a moot case. See Goodwin v. State, 593 So. 2d 211, 212 (Fla. 1992) (“An otherwise moot case will not be dismissed if collateral legal consequences that affect the rights of a party flow from the issue to be determined.”). The inequitable conduct doctrine is therefore inapplicable. Bitterman v. Bitterman, 714 So. 2d 356, 365 (Fla. 1998) [23 Fla. L. Weekly S168a] (“The inequitable conduct doctrine permits the award of attorney’s fees where one party has exhibited egregious conduct or acted in bad faith. . . . [T]his doctrine is rarely applicable.”).

Accordingly, the orders under review are AFFIRMED,⁶ and since Custer did not prevail in this appeal, its motion for appellate attorney’s fees and costs under section 628.428, Florida Statutes is DENIED.

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¹Since no order was rendered, Custer argued at nearly every subsequent hearing that its 2012 rehearing motion was still pending. The court ultimately denied this motion as moot on October 20, 2014.

²At the hearing, Custer repeatedly referenced a January 2010 email that mistakenly suggested this matter be included in a separate settlement for two cases that were expressly exempted from the 2006 agreement.

³Custer did not appeal this order.

⁴Although Custer did not separately appeal the 2014 order, it was essentially incorporated into the county court’s October 20, 2014 order denying Custer’s 2012 rehearing motion as moot. Specifically, the court orally found Custer’s 2012 motion moot because at the April 7, 2014 hearing, the court reheard everything that was discussed at the 2011 hearing, which was the genesis of Custer’s 2012 motion. One’s appellate rights also do not materialize until a written order is rendered, and a timely filed motion for rehearing holds a subsequently filed appeal in abeyance until it is deposed. Fla. R. App. P. 9.020(i), 9.110(b). Moreover, this case ultimately turns on interpreting of this Circuit’s 2005 new trial mandate.

⁵Disapproved of on other grounds by Paulucci v. Gen. Dynamics Corp., 842 So. 2d 797 (Fla. 2003) [28 Fla. L. Weekly S235a].

⁶Because the county court’s denial of Custer’s trial fees is affirmable pursuant to the settlement rational articulated in its 2014 order, this Circuit declines to address its 2011 reasoning regarding the voluntary dismissal. See Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979) (holding that an erroneously reasoned trial court decision should generally “be affirmed if the evidence or an alternative theory supports it”). It, however, is noted that Custer’s argument regarding the parties’ failure to comply with Florida Civil Procedure Rule 1.420 was not raised at trial and is thus unpreserved for appellate review. See Roth v. Cohen, 941 So. 2d 496, 500 (Fla. 3d DCA 2006) [31 Fla. L. Weekly D2797a] (“For an issue to be preserved for appeal, . . . it must be presented to the lower court and the specific legal argument or ground to be argued on appeal must be part of that presentation.”) (internal citations and quotations omitted).