26 Fla. L. Weekly Supp. 620a
Online Reference: FLWSUPP 2608WHITInsurance — Small claims — Confession of judgment — No error in entering judgment after insurer filed confession of judgment — Responsive pleading to a complaint is not required under small claims rules, and there was no issue of fact left to resolve
BRETZ CHIROPRACTIC CLINIC, as assignee of Tyler Whitlock, Appellant, v. GEICO GENERAL INSURANCE COMPANY, Appellee. Circuit Court, 12th Judicial Circuit (Appellate) in and for Sarasota County. Case No. 2017 AP 005946 NC. L.T. Case No.: 2017 SC 002322 NC. October 8, 2018. Counsel: Bruce S. Rosenberg, H. Alexis Rosenberg, Rosenberg Law, P.A., Boca Raton, and Kristin A. Norse, Stuart C. Marksman, Kynes, Marksman & Feldman, P.A., Tampa, for Appellant. Rebecca O’Dell Townsend, Scott W. Dutton, Dutton Law Group, P.A., Tampa, for Appellee.[Lower court order published at 25 Fla. L. Weekly Supp. 826a]
OPINION
(MERCURIO, J.) This matter is before the Court on the Appellant’s Appeal of a county court judgment for personal injury protection (PIP) and MedPay Benefits. The County Court entered judgment in favor of the Appellee and dismissed the Amended Complaint of the Appellant.
On April 5, 2017, the Plaintiff/Appellant filed a Complaint in Small Claims Court seeking damages in the amount of $99.00, exclusive of interest, costs and attorney’s fees. On May 2, 2017, the Appellee filed a Confession of Judgment, confessing judgment in favor of the Appellant for the total amount of $109.49, representing all disputed benefits plus interest, and acknowledged Appellant’s entitlement to reasonable attorney’s fees and costs prior to the date of the Confession of Judgment. On May 3, 2017, the Appellant filed its Amended Complaint, seeking damages in the amount of $499.00, before interest, costs and attorney’s fees. On May 5, 2017, the Appellee filed its Motion for Entry of Final Judgment. On October 25, 2017, Appellee filed its Amended Motion for Entry of Final Judgment. On October 31, 2017, the County Court entered its Final Judgment Order [25 Fla. L. Weekly Supp. 826a].
In an Amended Motion for Entry of Final Judgment, filed October 25, 2017, Appellee argues judgment was confessed prior to rules of civil procedure going into effect in this case pursuant to operation of Sarasota Administrative Order 2012-18.1, and therefore that the Small Claims rules, found in Section 627.736, Florida Statutes, applies.
The County Court’s Final Judgment Order dismissed the Appellant’s Amended Complaint and awarded the Appellant $109.49, representing PIP benefits in the amount of $99.00 and $10.49 in interest. The trial court ruled that the confession of judgment is an acknowledgment that a debt is justly due and in effect ends the dispute. The County court relied on Geico Casualty v. Barber, 147 So.3d 109 (Fla. 5th DCA 2014) [39 Fla. L. Weekly D1727a] for the proposition that following a confession of judgment, the County court only retains jurisdiction for purposes of entering the confessed judgment and reserving jurisdiction on the issue of attorney fees. The County Court noted that this matter began in small claims court under Florida Small Claims Rule 7.050.
Appellant contends that: 1) the trial court erred in entering Judgment because the Appellee had not yet filed a responsive pleading, and therefore Appellant was permitted to file an Amended Complaint and 2) the trial court erred when it ruled Appellee’s confession of judgment, filed without tender of payment, ended the dispute and deprived the trial court of jurisdiction. Appellant requests that this court remand this matter to the county court for consideration of its Amended Complaint on the merits. For the reasons discussed below, the trial court is affirmed on all issues.
As to the first issue, on May 2, 2017, when Appellee confessed judgment and on May 3, 2017, when Appellant filed its Amended Complaint, the Appellant’s claim was pursuant to the Florida Small Claims Rules. Only on May 9, 2017, did Appellant invoke the Florida Rules of Civil Procedure. A responsive pleading to a Complaint is not required under the Florida Small Claims Rules. See Fla. Sm. Cl. R. 7.090. Even so, the confession of judgment is consistent with a responsive pleading in admitting the allegations in the Complaint. Pursuant to Fla. S. Cl. R. 7.135, the small claims court had authority to enter judgment since there was no issue of fact left to resolve following the filing of the Complaint and Appellee’s confession of judgment thereto.
As to the second issue, Appellant argues that Appellee did not tender payment when filing its confession of judgment, thereby rendering it null. Appellee confessed judgment to the full amount pled as well as entitlement to attorney’s fees and costs. There was nothing left to adjudicate, and therefore summary disposition was appropriate under Fla. Sm. Cl. R. 7.135. Appellant cites to Fridman v. Safeco Ins. Co., 185 So. 3d 1214 (Fla. 2016) [41 Fla. L. Weekly S62a] for the proposition that use of the confession of judgment doctrine to deprive an insured of its rights in pending litigation is prohibited. Appellant also argues that Fridman overrides Geico Casualty v. Barber, 147 So.3d 109 (Fla. 5th DCA 2014) [39 Fla. L. Weekly D1727a], relied upon by the County Court.
In Fridman, the insured filed a claim for $50,000, representing the policy limits of his uninsured/underinsured (UM) policy. Fridman, 185 So. 3d at 1216. Following the insurer’s non-payment, Fridman filed a Civil Remedy Notice, pursuant to Section 624.155(3)(a), Florida Statutes, arguing that the insurer failed to attempt to settle his UM claim in good faith. Id. at 1216. Subsequently, Fridman filed a Complaint against the insurer. Id. The insurer tendered a check with settlement language for $50,000, which was rejected by Fridman. The insurer tendered a second check for $50,000, without settlement language, and filed both a confession of judgment and a motion for entry of confession of judgment. Fridman objected to the confession of judgment, arguing that a jury verdict would determine the upper limits of the insurer’s potential liability under a future bad faith claim. Id. at 1217. At trial, Fridman was awarded $1,000,000.00 in damages. The trial court entered a final judgment for Fridman in the amount of $50,000.00, and reserved jurisdiction regarding the litigation of bad faith damages. Id. The Florida Supreme Court held that Fridman had the right to seek a verdict to determine the full amount of his damages, and the insurer could not render the case moot by confession of judgment. Id. at 1224.
Fridman, however, is distinguishable from the instant case. The instant case is a breach of contract claim for no-fault benefits. The Appellee admitted judgment in the sum pled in the Appellant’s lawsuit. Fridman involved an allegation that an insurer failed to settle a UM claim in good faith, whereas here there is no bad faith allegation, thus there is no reason for litigation to continue beyond the confession of judgment. The County court did not err in entering Judgment in favor of the Appellee. Appellant filed a Motion for Appellate Attorney’s fees. As Appellant did not prevail on appeal, this is denied.
AFFIRMED.
