18 Fla. L. Weekly Supp. 457a
Online Reference: FLWSUPP 1805MONT
Insurance — Attorney’s fees — Timeliness of motion — No merit to argument that, as prevailing party under section 627.428, insured was not required to serve motion for attorney’s fees within 30 days of judgment — Abuse of discretion to find that one-day delay in serving motion for fees resulted from excusable neglect where insured did not make motion alleging excusable neglect or give notice as required by rule 1.090(b)(2), and insured offered no explanation to justify extension of time except counsel’s inadvertence — Final judgment taxing attorney’s fees and costs is reversed
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. CHARLES MONTGOMERY, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. CACE08-55204 (14). February 25, 2011.OPINION (Corrected)1
(GOLD, Judge.) THIS CAUSE came before the Court, sitting in its appellate capacity, upon Appellant, United Automobile Insurance Company’s (herein “United Auto”) timely appeal of the trial court’s Final Judgment Taxing Attorney’s Fees and Costs, entered on October 23, 2008. The Court dispenses with oral argument and finds as follows:
On appeal, United Auto challenges the trial court final judgment awarding Appellee attorney’s fees and costs, contending that Appellee’s underlying motion for attorney’s fees and costs was untimely, pursuant to Florida Rule of Civil Procedure 1.525, which requires a motion for attorney’s fees to be served within 30 days of the final judgment. Specifically, Appellant attacks the trial court’s order entered on August 11, 2008 where the trial court determined that Appellee showed excusable neglect under Florida Rule of Civil Procedure 1.090(b) which justified an enlargement of time within which to serve the motion for attorney’s fees.
While the record on appeal before this Court shows that the certificate of service on the motion for attorney’s fees reflects a date of June 30, 2008, which is the thirtieth day following the underlying final judgment; Appellee’s counsel admitted that the motion was not mailed until the following day, July 1, 2008, the thirty-first day after the final judgment. Although Appellee’s counsel conceded the motion was mailed a day after the date of the certificate of service, she urged the trial court to find the tardiness amounted to excusable neglect under Rule 1.090 and enlarge the time within which the motion could be served.
On appeal, United Auto argues that the trial court abused its discretion in allowing an enlargement of time under Rule 1.090 for Appellee’s based upon excusable neglect on the facts here, and seeks reversal of the trial court’s order that ultimately awarded attorney’s fees and costs to the Appellee.
Appellee sets out two alternative arguments on appeal that: (1) as the prevailing party pursuant to section 627.428, Florida Statutes, Appellee was not required to serve a motion for attorney’s fees within thirty days of the judgment under Rule 1.525; or (2) the trial court properly exercised its discretion by finding that the delay in moving for attorney’s fees resulted from excusable neglect and did not cause meaningful prejudice to United Auto.
Standard of Review:
In Saia Motor Freight Line, Inc. v. Reid, 930 So. 2d 598, 599 (Fla. 2006) [31 Fla. L. Weekly S281a], the Florida Supreme Court explained that appellate courts apply a de novo standard of review when the construction of a procedural rule, such as rule 1.525, is at issue. However, in reviewing, the trial court’s finding of excusable neglect, the standard of review is whether an abuse of discretion occurred. See State, Dept. of Transp. v. Southtrust Bank, 886 So. 2d 393, 396 (Fla. 1st DCA 2004) [29 Fla. L. Weekly D2571b]. Accordingly, we review the trial court’s finding under an abuse of discretion standard.
As to Appellee’s first argument, he offers no legal support for his contention that, as the prevailing party, he is relieved of the responsibility of filing a motion for attorney’s fees under Rule 1.525 within thirty days of the judgment. Moreover, Appellee’s position is belied by the trial court’s final summary judgment entered on May 29, 2008 which ordered that: “4. This Court shall retain jurisdiction for purposes of determining taxable attorney’s fees and cost upon timely filed motion.” In the absence of supporting legal authority and the plain language of the trial court’s order, the Court is not persuaded by Appellee’s first argument.
Likewise unavailing under the facts here is Appellee’s argument that the trial judge properly exercised her discretion by finding that the delay in moving for attorney’s fees resulted from excusable neglect.
The record shows it is undisputed that the 30-day time frame within in which to serve the motion for attorney’s fees had expired. Therefore, Rule 1.090(b)(2) governs, and provides as follows: “[w]hen an act is required or allowed to be done at or within a specified time by order of court, by these rules, or by notice given thereunder, for cause shown the court at any time in its discretion . . . (2) upon motion made and notice after the expiration of the specified period, may permit the act to be done when failure to act was the result of excusable neglect, but it may not extend the time for making a motion for new trial, for rehearing, or to alter or amend a judgment; making a motion for relief from a judgment under rule 1.540(b); taking an appeal or filing a petition for certiorari; or making a motion for a directed verdict.” (Emphasis added).
Despite the requirement under Rule 1.090, no motion alleging excusable neglect or notice was made by Appellee. Rather, it appears that Appellee’s counsel resorted to the “excusable neglect” argument when she was confronted with United Auto’s argument that Appellee’s motion for attorney’s fees was untimely at Appellee’s hearing set on the motion for attorney’s fees. At that time, Appellee’s counsel offered little explanation about why Appellee’s motion for attorney’s fees reflected a certificate of service date of June 30, 2008, but was not actually mailed until the following day, July 1, 2008, suggesting the motion was inadvertently mailed late. Further, Appellee’s counsel offered no affidavit or evidence to support a finding of excusable neglect. Instead, Appellee’s counsel simply conceded the motion was inadvertently mailed late and, on that basis, asked the trial court to deem such inadvertence as excusable neglect.
In its August 11, 2008 order, the trial court found that Appellee had shown excusable neglect and, enlarging the time to file the motion under Rule 1.090, found Appellee’s motion was timely filed.
Florida Courts have consistently held that “[i]nadvertence or mistake of counsel or ignorance of the rules does not constitute excusable neglect.” See Hernandez v. Page, 580So. 2d 793 (Fla. 3d DCA 1991); Allstate Insurance Co. v. Gulisano, 722 So.2d 216 (Fla. 2d DCA 1998) [23 Fla. L. Weekly D2287a], Spencer v. Barrow,752 So.2d 135, 138 (Fla. 2d DCA 2000) [25 Fla. L. Weekly D615a].
Here, where Appellee filed no motion for enlargement of time and gave no notice pursuant to Rule 1.090, coupled with the fact that Appellee offered no explanation to justify an enlargement of time other than counsel’s inadvertence in admittedly failing to serve the motion for attorney’s fees timely, the trial court abused its discretion in entering its August 11, 2008 order finding excusable neglect and enlarging the time within which Appellee could serve the motion for attorney’s fees. See Oglesby-Dorminey v. Lucy Ho’s Rest./Lucy Ho’s Bamboo Garden, Inc., 815 So. 2d 749, 752 (Fla. 1st DCA 2002) [27 Fla. L. Weekly D1031a] (citing Carlton v. Wal-Mart Stores, Inc., 621 So. 2d 451, 454 (Fla. 1st DCA 1993) (stating that excusable neglect usually requires more than “simple inadvertence or mistake of counsel or ignorance of the rules” (quoting Winters v. Teledyne Movible Offshore, Inc., 776 F.2d 1304, 1306 (5th Cir. 1985))). As this Court finds that the trial court abused its discretion in excusing the untimely served motion, the trial court’s Final Judgment Taxing Attorney’s Fees & Costs cannot stand. Accordingly, it is
ORDERED AND ADJUDGED that the Final Judgment Taxing Attorney’s Fees & Costs is hereby REVERSED.
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1Corrected for Case Number Only.
