Advanced Chiropractic and Rehabilitation Center, Corp. v. United Automobile Insurance Co.
140 So. 3d 529
| Fla. | 2014Background
- Advanced (insured) sued UAIC for PIP benefits; parties settled in county court and the court entered a dismissal with prejudice.
- Advanced’s counsel had filed a change of address with the Clerk before dismissal, but the Clerk’s records were not updated and counsel did not receive the dismissal notice.
- Months later counsel filed a motion to vacate for excusable neglect and sought attorney’s fees; county court vacated the dismissal and allowed the fee motion.
- On appeal the circuit court reversed, finding the unsworn statements insufficient to show excusable neglect; the Fourth District quashed that reversal on certiorari (Advanced I).
- Advanced then filed an attorney’s-fee motion in the Fourth District six days after the writ was granted; the Fourth District denied fees as untimely under Stockman/Green principles, holding requests must be pleaded in the petition/response/reply in a rule 9.100 original proceeding (Advanced II).
- The Florida Supreme Court granted review and held rule 9.400(b) does not apply to rule 9.100 original proceedings; rule 9.300 governs fee motions in 9.100 proceedings and Advanced’s post-writ motion was timely.
Issues
| Issue | Advanced’s Argument | UAIC’s Argument | Held |
|---|---|---|---|
| Whether Fla. R. App. P. 9.400(b) governs timing/method for requesting attorney’s fees in a rule 9.100 original writ proceeding | 9.400(b) should control timing for fee requests | 9.400(b) applies and Advanced’s motion was untimely | 9.400(b) does not apply to rule 9.100 proceedings because its terminology and framework (briefs) conflict with rule 9.100; rule 9.300 governs fee motions |
| Whether Stockman and Green require fee requests to be pleaded in the petition/response/reply in a 9.100 proceeding | Stockman/Green inapplicable at appellate original-proceeding level; fees may be requested after resolution | Stockman/Green require pleading entitlement to avoid waiver; Advanced waived by not pleading in petition/reply | Stockman/Green were trial-level rules about pleadings under the civil rules and were misapplied to rule 9.100; they do not bar Advanced’s district-court fee motion |
| Appropriate rule for requesting fees in a 9.100 original proceeding | Entitlement under §627.428 arises on judgment; fee motion after writ is proper | Fee request must meet appellate briefing-timing rules | Rule 9.300 (motions generally) governs fee requests in appellate original proceedings; motions must be timely but no fixed 9.400(b) deadline applies |
| Timeliness of Advanced’s fee motion filed six days after writ granted | Motion was timely under rule 9.300 and merits determination of amount should follow resolution | Motion was untimely under rule 9.400(b)/Stockman | Motion was timely; remanded to district court to determine fee amount under §627.428 |
Key Cases Cited
- Stockman v. Downs, 573 So.2d 835 (Fla. 1991) (trial-level rule: entitlement to contractual/statutory fees is waived unless pleaded; notice is the core concern)
- Green v. Sun Harbor Homeowners’ Ass’n, Inc., 730 So.2d 1261 (Fla. 1998) (construing Stockman: “pleadings” means complaints, answers, counterclaims under civil rules; motion to dismiss is not a pleading)
- Pino v. Bank of N.Y., 121 So.3d 23 (Fla. 2013) (interpretation of procedural rules reviewed de novo)
- Janovitz (Judges of Eleventh Judicial Circuit v. Janovitz), 635 So.2d 19 (Fla. 1994) (fees for appellate proceedings are determined after merits resolution)
- Ganz v. HZJ, Inc., 606 So.2d 871 (Fla. 1992) (statutes creating fee entitlement based on events during litigation may be claimed by post-judgment motion)