5 Fla. L. Weekly Supp. 796a
Attorney’s fees — Interpleader — Justiciable issues — Attorney who prevailed in action against former client and against client’s uninsured motorist insurer in which attorney sought to recover fees after insurer, who had been notified of attorney’s charging lien, mailed to client a check payable to attorney and client; client wrongfully negotiated the joint check without paying attorney; and insurer recovered amount of check from bank, but failed to ensure that attorney received funds — Interpleader — Trial court erred in holding that insurer was not liable for prevailing party attorney’s fees because insurer was innocent stakeholder — Insurer did not stand in position of indifference as required for successful interpleader claim — Attorney not entitled to recover fees from insurer pursuant to section 57.105 where there was not a complete absence of justiciable issues of law or fact — Trial court erred in refusing to tax costs against insurer because its actions made suit necessary — Client’s intervening criminal act was not sufficient to relieve insurer of its duty to pay costs to prevailing party
ROBERT D. MELTON, P.A., Appellant, v. SCOTT HERREN and ALLSTATE INDEMNITY COMPANY, Appellees. 9th Judicial Circuit, in and for Orange County. Case No. CO96-8726. Appeal No. CVA197-54. An Appeal from County Court for Orange County, Stephan W. Carter, Judge. Counsel: Robert D. Melton, P.A., Jonathan P. Sanford, for Appellant. Jack, Wyatt, Tolbert & Thompson, P.A., Christopher S. Reed, for Appellee.
FINAL ORDER AND OPINION
(Before White, Komanski, and Conrad, JJ.) Appellant, Robert D. Melton, P.A. (hereinafter “Melton, P.A.”) appeals from the lower court’s ruling denying his Motion to Tax Fees and Costs Against Appellee, Allstate Indemnity Company (hereinafter “Allstate”). This Court, having reviewed the record on appeal and briefs of counsel, dispenses with oral argument pursuant to Florida Rule of Appellate Procedure 9.320. This Court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(c)(1)(A). We must reverse in part and affirm in part for the reasons stated herein.
Appellee, Scott Herren (hereinafter “Herren”) retained the law firm of Robert D. Melton, P.A. to represent him in an uninsured motorist claim on or about March 20, 1996. Because of the tortfeasor’s lack of coverage, a claim was made against Herren’s uninsured motorist carrier, Allstate. After services were rendered to Herren in making his claim for uninsured motorist benefits, Herren discharged Melton, P.A. by letter dated June 20, 1996. Melton, P.A. put Allstate on notice of its lien by letter dated July 10, 1996.
After its initial notification, Melton, P.A. put Allstate on further and more specific notice of its lien, claiming attorney’s fees in the amount of $1,901.01, by letter dated July 13, 1996, sent via certified mail return receipt requested. A copy of this letter was also sent to Herren. Melton, P.A. contacted Allstate and was assured by Erin Spicer, an Allstate representative, that Melton, P.A.’s lien had been received and would be protected, and that Herren’s uninsured motorist claim had not been settled.
A week later, Erin Spicer notified Melton, P.A. that the uninsured motorist claim was settled for the sum of $6,000.00, and that Melton, P.A.’s name would be placed on the settlement check. Allstate issued a check for $4,098.99 made payable to Herren, and issued a second check for $1,901.01, made payable to both Herren and Melton, P.A. Both checks were delivered to Herren. Melton, P.A. never received any of the settlement proceeds and it was later discovered that Herren had wrongfully negotiated the joint check.
Melton, P.A. filed suit against Herren and Allstate to recover the amount of the attorney’s lien which was wrongfully delivered to Herren. In its answer, Allstate asserted that it was an innocent stakeholder and filed counter and cross-claims for interpleader status. In addition, Allstate filed a Motion to Dismiss on September 11, 1996 which was denied by the court on December 16, 1996.
Melton, P.A. filed a Motion for Summary Judgment on January 27, 1997. The court heard arguments on the motion on April 1, 1997. Subsequently, the trial court entered final judgment in favor of Melton, P.A. on May 12, 1997, against Herren and Allstate, and ordered Allstate to pay Melton, P.A. the sum of $1,901.00 within ten days of the date of the order. Allstate complied with the court’s order. On May 16, 1997, the court denied Melton, P.A.’s Motion for Summary Judgment.
On May 21, 1997, Melton, P.A. filed a Motion to Tax Interest, Costs and Fees. On May 22, 1997, Allstate filed a similar motion. The court heard arguments on these motions on July 14, 1997 and entered final judgment as to both on August 25, 1997. Allstate withdrew its motion and the court granted Melton, P.A.’s Motion to Tax Interest against Allstate in the amount of $126.73 for the period of September 13, 1996 through May 12, 1997. The court denied Melton, P.A.’s Motion to Tax Costs and Fees against Allstate but granted Melton, P.A.’s Motion to Tax Costs against Herren. Melton, P.A. filed a Notice of Appeal on September 23, 1997, appealing the court’s denial of its Motion to Tax Costs and fees against Allstate.
Melton, P.A. raises two points on appeal. As to the first point, whether the trial court erred in failing to assess attorney’s fees against Allstate, Melton, P.A. asserts that the trial court erroneously applied the law of interpleader and found Allstate an innocent stakeholder and therefore not liable for attorney’s fees. Allstate argues that the trial court was correct in ruling that it was an innocent stakeholder. In order to maintain an action for interpleader, four elements must be met. They are:
(1) the claims must be dependent or have a common origin; (2)the same thing, debt (or duty) or stake must be claimed by defendants; (3) the plaintiff must have no interest in the subject matter..; and (4) the plaintiff must be in a position of indifference, having incurred no independent liability to either of the claimants, but must stand indifferent between them merely as a stakeholder, and it must appear that no act on his part has caused the embarrassment of conflicting claims and the peril of double vexation.
Prince v. Underhill, 670 So. 2d 92, 94 (Fla. 5th DCA 1996). Melton, P.A. argues that Allstate fails to satisfy the last element. Allstate insists that it had no interest in the funds in dispute. Upon discovering that Herren had altered and improperly endorsed the check issued to Melton, P.A. and Herren, Allstate made a claim against the First National Bank of Osceola for accepting the improperly endorsed check and received reimbursement from the bank in the amount of $1,901.00. Melton, P.A. argues that if Allstate were truly interested in protecting Melton, P.A.’s interest, it would have, upon reimbursement, turned the money over to Melton, P.A. Given Herren’s actions, Allstate had clear notice that any check subsequently turned over to Herren would not reach Melton, P.A. and therefore had a duty to ensure that Melton, P. A. received its attorney’s fees in another manner. Allstate failed to do this however, waiting instead until ordered by a court to turn over the money to Melton, P.A. Therefore, Allstate cannot meet the fourth element necessary for a successful interpleader claim, which is that a party must be in a position of indifference.
Nevertheless, this Court finds that the trial court did not err by not taxing attorney’s fees against Allstate. Section 57.105, Florida Statutes, requires a “complete absence of a justiciable issue of either law or fact” before a court may award attorney’s fees to a prevailing party. Allstate argues that the trial court’s denial of Melton, P.A.’s Motion for Summary Judgment demonstrates the existence of a justiciable issue of fact or law. First v. Carver, 504 So. 2d 50 (Fla. 2d DCA 1987). In Carver, the court denied the Motion for Summary Judgment and continued on to trial. In this case, the court denied the Motion for Summary Judgment then went on to find for Melton, P.A. without hearing any further motions on the matter. In other words, no issues were resolved before the court entered final judgment. Therefore, Carver is distinguishable. However, the phrase “complete absence of a justiciable issue of either law or fact” has been interpreted to mean “a total or absolute lack of a justiciable issue, which is tantamount to finding that the action was frivolous.” Allen v. Estate of Dutton, 384 So. 2d 171 (Fla. 5th DCA 1980). It cannot be said that Allstate’s counterclaim and defenses were completely frivolous. In this situation, where two parties had conflicting interests in the same funds, Allstate arguably needed the court to determine which party should ultimately be paid.
As to Melton, P.A.’s second point on appeal, whether the trial court erred in failing to assess costs against Allstate, Melton, P.A. argues that the trial court erred in failing to assess costs against Allstate because Melton, P.A. was the prevailing party. Allstate argues that the trial court was correct in refusing to tax costs against Allstate because it was more appropriate to tax costs against Herren.
Section 57.041, Florida Statutes, states that the prevailing party shall recover all his or her legal costs and charges which shall be included in the judgment. The Fifth District Court of Appeals interpreted this statute to mean that every prevailing party is entitled as a matter of right to recover lawful court costs and that a trial judge has no discretion under that statute to deny court costs to the party recovering judgment. Board of St. Johns River v. Lake Pickett, 543 So. 2d 883, 884 (Fla. 5th DCA 1989). Melton, P.A. was the prevailing party, but the trial court assessed costs only against Herren.
Fairness dictates that Allstate be made to pay Melton, P.A.’s costs because its actions made the suit necessary. Allstate’s refusal to pay Melton, P.A. monies owed pursuant to the charging lien, necessitated Melton, P.A.’s suit. The mere fact that Melton, P.A. was not paid due to Herren’s intervening criminal act was not sufficient to relieve Allstate of its duty to pay costs to Melton as prevailing party. Additionally, the trial court said, in a hearing held July 14, 1997, that it thought this was an interpleader action and that Allstate did not fall outside the ambit of an innocent stakeholder, so it would not tax costs against them, but against Herren instead. For reasons stated earlier, this was an erroneous application of the law of interpleader and therefore the trial court erred in failing to tax costs against Allstate.
ORDERED AND ADJUDGED, the lower court’s ruling failing to tax costs against Allstate is reversed and the ruling failing to tax attorney’s fees against Allstate is affirmed. (WHITE, KOMANSKI, AND CONRAD, JJ., concur.)
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