25 Fla. L. Weekly Supp. 179a
Online Reference: FLWSUPP 2502PANInsurance — Personal injury protection — Attorney’s fees — Claim or defense not supported by material facts or applicable law — Timeliness of motion — Rule 1.525 requirement that motion for attorney’s fees be filed within 30 days after judgment, if applicable to motion for sanctions under section 57.105, was satisfied where motion for sanctions was filed years before entry of judgment
PAN AM DIAGNOSTIC SERVICES, INC., Plaintiff(s), vs. UNITRIN DIRECT PROPERTY & CASUALTY COMPANY, Defendant(s). County Court, 9th Judicial Circuit in and for Orange County. Case No. 2011-SC-006310-O. March 31, 2017. David P. Johnson, Judge. Counsel: Aaryn A. Fuller, Orlando, for Plaintiff. Michael A. Adams, Quintairos, Prieto, Wood & Boyer, P.A., Orlando, for Defendant.
ORDER ON DEFENDANT’SMOTION FOR SANCTIONS
This cause came on for consideration by the undersigned on the Defendant’s Motion for Sanctions, a hearing was held March 07, 2017, and court having heard argument and considered the motion it is hereby ORDERED AND ADJUDGED:
The Defendant’s Motion for Sanctions is GRANTED as set out below.
The facts of this case are not in dispute. Defendant paid the Plaintiff’s demand in full prior to suit being filed. Plaintiff’s counsel asserts that she was unaware that the payment had been made before the suit was filed as the receipt of the payment and filing of the suit occurred the same day. Given these facts, the Plaintiff asserts that the cause of action was cognizable at the time it was filed and therefore not frivolous.
The Court agrees that, given the timing of events in this case, it is not unreasonable to believe that the Plaintiff initially filed the case in good faith. Additionally, the Court notes that the Defendant did not specifically raise the issue in its Answer and Affirmative Defenses. Rather the Defendant responded with what can be described as “boilerplate” assertions that the Plaintiff failed to state a cause of action, that payments were not overdue because it was not responsible for the payments or that Plaintiff had not provided enough proof, that Defendant paid the bills in accordance with Fla. Stat. §627.736, and finally that Plaintiff failed to provide a proper demand letter. Nowhere in that document does the Defendant inform the Plaintiff that it had paid the pre-suit demand in full prior to, or at least contemporaneously with, the filing of the case.
However, on December 1, 2011 the Defendant filed its Motion for Sanctions wherein they recite in great detail the events establishing that in fact the Plaintiff’s demand for payment was paid in full pre-suit. The motion was filed pursuant to Fla. Stat. §57.105 which requires notice to the other party at least 21 days before the motion can be filed. Which means that the Plaintiff, while arguably unaware of the circumstances of payment at the time the suit was filed, was notified three weeks before the filing of the motion for sanctions and could have dismissed the case at any time thereafter but failed to do so. Even after the Defendant prevailed on its motion for summary judgment on the very issue of payment, the Plaintiff refused to yield and appealed that decision to the Circuit Court.
It is not lost on the Court that both parties continued to litigate the case for years and the Defendant set and reset its Motion for Summary Judgment four times and then, for some unexplained reason, waited two years after the appeal was denied to call up its motion for sanctions.
The issue that emerged at the hearing in this matter is whether the Defendant is barred from moving for attorney’s fees by Fla. R. Civ. P. 1.525 which requires that motions to tax costs and attorney’s fees be filed within 30 days of a judgment or dismissal. The Plaintiff cites to SAIA Motor Freight Line, Inc. v. Leslie Reid, 930 So.2d 598 (Fla. 2006) [31 Fla. L. Weekly S281a] to argue that the aforementioned rule bars the Defendant’s action. Alternatively, the Plaintiff suggests that a separate motion to tax fees must be filed using the §57.105 notice as the basis for the motion to tax. The Court rejects this alternative argument pursuant to the plain language of Fla. Stat. §57.105(1)(a) which states:
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: (emphasis added) (a) was not supported by the material facts necessary to establish the claim or defense:
The Defendant argues that they are proceeding under Fla. Stat. §57.105 and that Rule 1.525 doesn’t apply citing Suncoast Spinal Medical & Rehab Centers, Inc. v. State Farm Mutual, 13 Fla. L. Weekly Supp. 829d. The Court notes that there appears to be a conflict in the Thirteenth Circuit since the same Circuit Court held that Rule 1.525 does apply to §57.105 fees. (See 2004 WL, 1301920) A number of cases agree that motions pursuant to Fla. Stat. §57.105 are not subject to Rule 1.525 because they discuss the reasonableness of the timing for filing 57.105 motions after judgment and have upheld time periods longer than thirty days to be acceptable, and many of these cases came out subsequent to the amendment of Rule 1.525 in 2001.
Nevertheless, the Court finds direction in Barco v. School Board of Pinellas County, 975 So.2d 1116 (Fla. 2008) [33 Fla. L. Weekly S87b]. Although the issue in Barco was a tad different in that the Respondent argued that the motion for attorney’s fees had to be filed within, and only within, the 30 days after judgment referred to in Rule 1.525 and motions filed prior to the judgment were not timely. The gist of the holding is that Rule 1.525 only establishes a deadline for filing such a motion and has no effect on motions filed prior to the judgment or dismissal. The Court concluded that “[the] deadline for service of Barco’s motion for attorney’s fees and costs, was met when Barco served his first motion for attorney’s fees and costs prior to the filing of the judgment.” Barco 1124.
In this case, the Defendant didn’t file any motion after the judgment. Rather the motion before the court was filed on December 1, 2011. Why it was never set for hearing during the years of litigation or at least after summary judgment remains a mystery. And, while the Court would have preferred a “WHEREFORE” clause specifically pleading attorney’s fees, paragraph 19 of the motion for sanctions satisfies the Court that the Plaintiff was on notice that attorney’s fees would be at issue. Whether Rule 1.525 applies to Fla. Stat. §57.105 is of no consequence since the motion was filed years before any judgment was entered.
While the Court is ruling that the Defendant is entitled to seek attorney’s fees under its Motion for Sanctions, this Order does not address the question of amount. The Court will reserve on the issue of amount of fees pending a stipulation of the parties or an evidentiary hearing.
