9 Fla. L. Weekly Supp. 860a

Attorney’s fees — Insurance — Motion — Timeliness — By failing to raise objection to untimeliness of medical provider’s motion for attorney’s fees and costs before commencement and presentation of sworn testimony at fee hearing, insurer waived any objection to court’s consideration of fee award — Court’s reservation of jurisdiction to award attorney’s fees is an enlargement of time under rule 1.090(b)(2) which allows court to exercise discretion to enlarge the time requirements of rule 1.525 for filing a motion for attorney’s fees and costs to allow filing of an untimely motion for fees without the necessity of showing excusable neglect — Rule 1.525 is not jurisdictional, but nothing more than a guideline for attorneys to seek fees and costs within 30 days after the filing of judgment — In absence of showing of prejudice to insurer, motion to enlarge time for filing attorney’s fees motion up to date motion was filed is granted — Sanctions — Motion for monetary sanctions against insurer for its attorney’s failure to notify court and opposing counsel of her unavailability prior to fee hearing is granted

MILLENNIUM DIAGNOSTIC IMAGING CENTER, INC., as assignee of Ambrosio Lopez, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 00-8584 SP 26 (02). October 25, 2002. Final Summary Judgment. August 23, 2001. Lawrence D. King, Judge. Counsel: James A. Hannon, Hannon and Hannon, P.A., Miami, for Plaintiff. Norma Kassner, Troy D. Ferguson & Associates, Coral Gables, for Defendant.

ORDER DENYING DEFENDANT’S ORE TENUS MOTIONTO STRIKE PLAINTIFF’S MOTIONFOR ATTORNEY’S FEES AND TAXABLE COSTS

THIS MATTER came before the Court on August 30, 2002 for a hearing of Plaintiff’s Motion for Attorney’s Fees and Taxable Costs, after the entry of Final Summary Judgment in favor of Plaintiff regarding an action for PIP benefits pursuant to an automobile insurance policy. The August 30, 2002 hearing was postponed and later reconvened on September 6, 2002 at the request of the defense counsel Stuart Yanofsky, exclusively for the purpose of allowing a cross-examination of Plaintiff’s expert to be conducted by Norma Kassner, Esq., who is the litigation attorney assigned to this case by in-house counsel, Troy Ferguson and Associates, P.A., on behalf of Defendant, United Automobile Insurance Company.

At the September 6, 2002 hearing, defense counsel Dewayne Terry appeared for United Automobile Insurance Company apparently for the sole purpose to make an ore tenus motion to strike Plaintiff’s Motion for Attorney’s Fees and Taxable Costs, contending Plaintiff’s motion was untimely served pursuant to Fla. R. Civ. P. 1.525 (2001). The Court has considered Defendant’s ore tenus motion to strike and hereby denies same.I. 

FINDINGS OF FACT

An order of final summary judgment was entered in favor of Plaintiff, Millennium Diagnostic Imaging Center, Inc. on August 23, 2001, and filed with the Clerk of Court on August 24, 2001 (See attached copy Ex. “A”). This order was entered and filed within thirty (30) days of the date of the ruling granting Plaintiff’s motion for summary judgment. Notably in the order granting final summary judgment the Court retained jurisdiction to enforce the judgment and to award attorney’s fees. Plaintiff thereafter served its Motion for Attorney’s Fees and Taxable Costs dated November 26, 2001 on Norma Kassner, Esq., general counsel for Defendant, United Automobile Insurance Company. Several postponements of the original hearing of the subject attorney’s fees motion were documented in the court file, with the Court granting additional time to Defendant by rescheduling said hearing on March 8, 2002, and again on June 11, 2002.

On August 30, 2002 the fee hearing was commenced, all witnesses were sworn and testimony by way of direct examination of Plaintiff’s expert was taken. Throughout the entire period from August 23, 2001 up to and including August 30, 2002, there had been no objection by Defendant to conducting the fee hearing in question, nor any pleadings filed in opposition thereto. Defense counsel Yanofsky admitted that he felt he was unable to complete a proper cross-examination of Plaintiff’s expert Gregg Schwartz, Esq., as Yanofsky, Esq. had not been the attorney to handle the file since its inception, and was sent on short notice to cover the hearing for Norma Kassner, Esq. who was in trial on that date and time. The Court granted the request by Yanofsky, Esq. to postpone the final cross-examination of Plaintiff’s expert until September 6, 2002, when the hearing on Plaintiff’s attorney’s fees motion would be reconvened.

At the commencement of the hearing on September 6, 2002, Norma Kassner, Esq. again was not present in court. To the Court’s surprise, United Automobile Insurance Company was represented by Dewayne Terry, Esq., a totally different attorney employed by Troy Ferguson and Associates, P.A. At the beginning of the hearing, it was first asserted by defense counsel Terry that Plaintiff failed to serve it’s written motion for fees and costs within the thirty (30) day time period as required by Fla. R. Civ. P.1.525 (2001). The Court agreed to allow both parties to timely submit legal briefs regarding Defendant’s ore tenus Motion to Strike. The Court has carefully reviewed the brief submitted by Plaintiff and related case law of both Plaintiff and Defendant.¹

In sum, Plaintiff contends that although it’s Motion for Attorney’s Fees and Taxable Costs was served beyond the thirty (30) day mandate of Fla. R. Civ. P. 1.525, the Court has discretion pursuant to Fla. R. Civ. P. 1.090 to enlarge the time requirements of Fla. R. Civ. P. 1.525, when the Court has specifically reserved jurisdiction to award attorney’s fees, and being procedural in nature, requires no affirmative showing of excusable neglect. Defendant argues to the contrary that Fla. R. Civ. P. 1.525 and the time limits set forth therein are jurisdictional and therefore defeat the claim of Plaintiff for attorney’s fees and taxable costs in this matter.II. CONCLUSIONS OF LAW

A. WAIVER

The Court is persuaded by the arguments of Plaintiff that due to the Defendant’s failure to raise any opposition to Plaintiff’s motion for attorney’s fees and taxable costs until the last possible moment, there has been a waiver of any objection as to this Court’s consideration of a fee award in this action. Moreover, a party may absolutely waive a procedural defect argument once presented at an untimely stage of the litigation. Williams v. Salem Free Will Baptist Church, 784 So.2d 1232 (Fla. 1st DCA 2001); Samuels v. Magnum Realty, 431 So.2d 241, 242 (Fla. 1st DCA 1983). The record before the Court reflects that the Defendant was given numerous opportunities from the entry of the Order granting final summary judgment in favor of Plaintiff until the hearing on September 6, 2002 to raise said objection. Factually the hearing had already been commenced, and was only postponed until September 6, 2002, to allow defense counsel Norma Kassner to cross-examine Plaintiff’s expert. Therefore the Court finds that the Defendant has waived its timeliness defect argument under Fla. R. Civ. P. 1.525, having failed to object at any time before commencement and presentation of sworn testimony at said hearing.

B. ENLARGEMENT OF TIME

The Court finds that pursuant to Gulliver Academy, Inc. v. Bodek, 694 So.2d 675 (Fla. 1997), that a reservation of jurisdiction by the Court to award attorneys fees is procedurally an enlargement of time under Fla. R. Civ. P. 1.090(b), which allows a party to file an untimely motion for attorneys fees and costs without the necessity of showing excusable neglect. Further, Fla. R. Civ. P. 1.525 is not one of the exempt rules specifically mentioned in Fla. R. Civ. P. 1.090(b)(2). Defendant relies exclusively on Ulico Cas. Co. v. Roger Kennedy Construction, Inc., 821 So.2d 452 (Fla. 1st DCA 2002). The appellate court in Ulico was not presented with the issue of enlargement of time pursuant to a written reservation of jurisdiction. Therefore Ulico is factually distinguishable from the case sub judice. Any reliance by Defendant on Ulico is misplaced. The First District only equates the term “shall” with being mandatory, never equating the word shall as “jurisdictional.”The Court simply affirmed Judge Terry Lewis’ exercise of discretion to deny a fee request made forty-seven (47) days after filing of the final judgment.

Indeed, the opinion is silent as to whether appellant Ulico sought an enlargement of time pursuant to Fla. R. Civ. P. 1.090, or whether excusable neglect was raised in the pleadings as is the case before this Court. Be that as it may, the Florida First District Court of Appeal chose not to address the specific issue of “procedural” vs. “jurisdictional” application of Fla. R. Civ. P. 1.525. Therefore, Gulliver Academy, Inc. v. Bodek, 694 So.2d 675 (Fla. 1997), is still controlling and was not rendered moot in it’s binding authority by the creation of Fla. R. Civ. P. 1.525.

The Court hereby GRANTS Plaintiff’s motion raised at the September 6, 2002 hearing to enlarge the thirty (30) day time period up to and including the date of service November 26, 2001 for purposes of allowing the Plaintiff to present a timely motion for award of attorneys fees and taxable costs.²

C. SANCTIONS

Plaintiff has sought sanctions against Defendant, United Automobile Insurance Company as a result of Norma Kassner, Esq.’s failure to appear at the hearing on August 30, 2002, and for her failure to notify this Court or Plaintiff’s counsel Mark Hannon, Esq. prior to the hearing of her unavailability. It was represented to this Court that Norma Kassner, Esq. was in trial on the date and time in question, and therefore could not personally be present at said hearing. It is hard to believe that Norma Kassner, Esq., or someone on her behalf could not have notified this Court and opposing counsel of Kassner’s trial conflict prior to the commencement of the hearing on August 30, 2002, avoiding any waste of judicial resources or additional attorney’s fees being incurred. The simple courtesy of a telephone call would have rectified the entire situation.

The Court hereby GRANTS Plaintiff’s Motion for Sanctions. The Court will impose said sanction(s) against United Automobile Insurance Company for any reasonable attorney time spent by Mark Hannon, Esq. and/or Plaintiff’s expert in preparing for and attending the hearing in question. The Court will consider any supporting evidence offered by Plaintiff at the final fee award hearing.

D. PROCEDURAL VS. JURISDICTIONAL

The Court has reviewed the case of Tabannah v. United Parcel Service, 9 Fla. L. Weekly C701 (Fla. 17th Cir. Ct. July 31, 2002) [9 Fla. L. Weekly Supp. 701a], wherein the Honorable Robert Lance Andrews addressed the issue of Fla. R. Civ. P. 1.525 in a similar context as the matter before this Court. Judge Andrews held that the thirty (30) ,day period set forth in said rule is “jurisdictional.” He also opined that a reservation of jurisdiction in a final judgment does not enlarge the time for filing a motion for attorney’s fees under Fla. R. Civ. P. 1.525 (2001). Further, Judge Andrews cites Spencer v. Barrow, 752 So.2d 135 (Fla. 2d DCA 2000), as instructive authority for his determination that Fla. R. Civ. P. 1.525 is now jurisdictional, and not subject to the procedural discretion of the trial court to allow an enlargement of time pursuant to Fla. R. Civ. P. 1.090(b).

A careful analysis of Spencer v. Barrow reveals that the Florida Second District Court of Appeal did not find that Fla. R. Civ. P. 1.442 and it’s thirty (30) day time period were jurisdictional in nature. Spencer v. Barrow dealt with offers of settlement pursuant to Fla. R. Civ. P. 1.442(g), and did nothing more than reaffirm the decision of the Florida Supreme Court in Gulliver Academy, Inc. v. Bodek, 642 So.2d 675 (Fla. 1997). In Gulliver Academy, Inc. the Court held that the rules governing offers of settlement are procedural and governed by the Florida Rules of Civil Procedure, and the enlargement of time provisions contained therein. The Court also acknowledged that timely reservation of jurisdiction in a final judgment is procedurally an enlargement of time under Fla. R. Civ. P. 1.090(b), which may allow a party to file late a motion for attorney’s fees. Gulliver Academy, Inc. v. Bodek, 694 So.2d. 675, 677 (Fla. 1997).

The holding in Gulliver Academy, Inc. is clear. There need be no showing of excusable neglect in order to enlarge a time period by reservation of jurisdiction in the final judgment (emphasis added), if the date of the final judgment is within the time requirements of the rule.

A simple reading of Fla. R. Civ. P. 1.090 reveals that an enlargement of time is allowed well within the sound discretion of the trial court as to all rules of the Florida Rules of Civil Procedure except those specifically exempted pursuant to Fla. R. Civ. P. 1.090(b)(2), such as a motion for relief from a judgment pursuant to Fla. R. Civ. P. 1.540(b), or extending time for making a motion for new trial, rehearing, or to alter or amend a judgment, or taking an appeal. Had the Florida Supreme Court in approving Fla. R. Civ. P. 1.525 intended that it be included as an exempted rule in Fla. R. Civ. P. 1.090(b)(2), then it surely would have done so contemporaneously at the time that Fla. R. Civ. P. 1.525 was created and made effective January 1, 2001. See Amendments to Fla. Rules of Civil Procedure, 773So.2d 1098 (Fla. 2002).³

It is apparent that the Florida Supreme Court did not intend to create Fla. R. Civ. P. 1.525 as anything more than a guideline for attorneys to seek reasonable taxable costs and attorney’s fees within thirty (30) days after the filing of the judgment. It is respectfully submitted that the perceived mandatory nature of the rule by the use of the word “shall” does not change its procedural status for enlargement of time purposes as otherwise suggested by Judge Andrews. Tabannah v. United Parcel Service, 9 Fla. L. Weekly C701 (17th Circ. Ct. July 31, 2001) [9 Fla. L. Weekly Supp. 701a]. It is the opinion of this Court that the Florida Supreme Court has not rescinded the procedural enlargement of time discretion afforded all trial court judges in this State as to fees and costs.

Lastly, the procedural nature of Fla. R. Civ. P. 1.525 has neither been eliminated, nor modified by the appellate ruling in Spencer and Barrow. As we know, each case is unique, and presents its own set of circumstances related to fee awards. Trial courts must be allowed the flexibility afforded by Fla. R. Civ. P. 1.090 as justice so requires. To interpret Fla. R. Civ. P. 1.525 as “jurisdictional” greatly prejudices the rights of a party to seek reasonable attorney’s fees after having already prevailed in a cause of action. The Florida Supreme Court has not eviscerated the application of Fla. R. Civ. P. 1.090 in this context. The time period set forth in Fla. R. Civ. P. 1.525 is not jurisdictionally fatal to Plaintiff’s request for fees and costs. Defendant, United Automobile Insurance Company at all times had reasonable notice of the Plaintiff’s claim for attorney’s fees, properly in the complaint and pled pursuant to Florida Statute. See generally Stockman v. Downs, 573 So.2d 835 (Fla. 1991).

This Court must abide by the clear tenets set forth by the Florida Supreme Court in Gulliver Academy, Inc. v. Bodek, and the Florida Second District Court of Appeal in Spencer v. Barrow. The Court declines to embrace the arguments of Defendant, United Automobile Insurance Company to strike Plaintiff’s motion for fees and costs. Proper application of Fla. R. Civil P. 1.525 allows enlargement of time when appropriate. As this Court reserved jurisdiction to award attorneys fees in the order of final summary judgment entered within the thirty (30) day time period following the entry of said order, Plaintiff is therefore allowed to proceed pursuant to the mandates of Gulliver Academy, Inc. v. Bodek without a showing of excusable neglect as to the recovery of any reasonable attorney’s fees and/or costs which may be presented at the reconvened hearing of this matter.

Wherefore the Court hereby DENIES Defendant, United Automobile Insurance Company’s ore tenus Motion to Strike Plaintiffs’s Motion for Attorney’s Fees and Taxable Costs, as Defendant waived any objection to said hearing and is therefore estopped from doing so after commencement of the hearing. Further, the Court hereby finds that it may exercise its discretion to enlarge the time requirements of Fla. R. Civ. P. 1.525, pursuant to Fla. R. Civ. P. 1.090(b)(2), as there has been no prejudice to the Defendant allowing aforesaid enlargement up to and including November 26, 2001 for the service of Plaintiff’s Motion for Award of Attorney’s Fees and Taxable Costs in light of this Court’s timely retention of jurisdiction to do so.

The Court hereby GRANTS Plaintiff’s requested Motion for an Award of Monetary Sanctions against United Automobile Insurance Company upon a proper showing as to any reasonable costs or fees incurred by Plaintiff’s counsel James Hannon, Esq. and/or Gregg Schwartz, Esq. (expert), for their unnecessary attendance at the August 30, 2002 hearing as a result of the failure to properly give notice of cancellation of hearing by Norma Kassner, Esq.

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¹Defendant, United Automobile Insurance Company elected not to submit a written brief in support of it’s motion to strike and presumably is relying on Ulico Cas. Co. v. Roger Kennedy Construction, Inc., 821 So.2d 452 (Fla. 11th DCA 2002).

²The Court will hear Plaintiff’s motion accordingly at the next available calendar setting regardless of which counsel appears on behalf of Defendant, United Automobile Insurance Company. The Court notes that Norma Kassner, Esq., or any other attorney of her firm may appear for the completion of said hearing. Additionally, the Court recognizes that the Order of Final Summary Judgment dated August 23, 2002 only retained jurisdiction to enforce the judgment and award attorney’s fees, not taxable costs. However the Court will allow the presentation of the parties respective arguments at said hearing regarding the award of costs.

³Fla. R. Civ. P. 1.525 states: “Any party seeking a judgment taxing costs, attorneys’ fees, or both shall serve a motion within 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal.”

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FINAL SUMMARY JUDGMENT

This matter was heard on Plaintiff’s Motion for Summary Judgment after entry of an Order granting Plaintiff’s Motion for Summary judgment against Defendant, UNITED AUTOMOBILE INSURANCE COMPANY and,

IT IS ADJUDGED that Plaintiff, MILLENNIUM DIAGNOSTIC IMAGING CENTER, INC., recover from Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, Personal Injury Protection benefits together with prejudgment interest in the sum of $3,511.17, that shall bear interest at the rate of 10% for which let execution issue. The court retains jurisdiction to enforce this judgment and to award attorneys fees.

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