On May 29, 2014, the Florida Supreme Court issued a decision settling a conflict over the timeliness of filing for attorney’s fees.
The case originated in Broward County with an action filed by Advanced Chiropractic against United Automobile Insurance Co. (“UAIC”) for PIP benefits. During the course of the action, the attorney for Advanced moved offices and filed a change of address with the Clerk of Court. Two months later, Advanced and UAIC entered into a settlement agreement in which UAIC agreed to pay Advanced’s attorney’s fees. The trial court judge subsequently entered an order of dismissal in the case.
Advanced’s attorney never received a copy of the dismissal because the Clerk of Court failed to update its records concerning the address change. Once he learned of the dismissal, months later, counsel for Advanced filed a motion for attorney’s fees. Because the motion was filed past the mandatory 30-day deadline, the attorney moved to vacate the order of dismissal based on excusable neglect due to the court’s failure to update its records.
In a hearing on the motion to vacate the dismissal, the attorney for Advanced and an employee of the Clerk of Court both filed unsworn statements. The county court found that Advanced had established excusable neglect, vacated the order of dismissal, and allowed Advanced’s attorney to file a motion for attorney’s fees.
UAIC appealed the decision to the circuit court, contending that counsel for Advanced had not established excusable neglect. The circuit court held that, because the statements from the attorney and the Court’s employee were unsworn, there was not sufficient evidence to support the finding of excusable neglect. The circuit court therefore reinstated the order of dismissal.
Advanced appealed to the Fourth District, asserting that the circuit court had failed to apply the correct legal standard. The Fourth District concluded that Advanced had been denied due process and therefore quashed the decision of the circuit court.
Advanced then filed a motion for attorney’s fees. UAIC opposed the motion on the basis that it was untimely pursuant to the FL Rules of Appellate Procedure. The District Court dismissed UAIC’s argument based on the Rules of Appellate Procedure, but nonetheless denied the motion for attorney’s fees on the basis of the FL Supreme Court’s 1991 holding in Stockman v. Downs, which requires parties to plead entitlement to attorney’s fees.
The Fourth District held that, pursuant to the Stockman decision, the request for attorney’s fees must be made in the pleadings which, in this case, would be the petition, the response, or the reply. Because Advanced did not request fees in the petition or reply, the district court held that the motion was untimely. The state Supreme Court then agreed to review the case to consider whether the Fourth District misapplied the Stockman decision.
In the Stockman case, the Supreme Court addressed whether a prevailing party could raise entitlement to attorney’s fees for the first time by motion after trial. The Court held that a claim for attorney’s fees based upon a contract or statute is waived unless it is made in the pleadings. The Court explained that the fundamental concern is that the parties have notice of the claim as it may affect the decisions of the parties with respect to the case.
In distinguishing Stockman from this case, the Court noted that Stockman involved a request at the trial level and that the primary concern—lack of notice—is not implicated in the case at hand. Since Advanced requested attorney’s fees in both the county and circuit courts, UAIC could not contend unfair surprise when Advanced again claimed entitlement to attorney’s fees. Consequently, the Court quashed the decision in the court below and remanded to the district court for a determination of the amount of attorney’s fees to which Advanced is entitled.
The case is Advanced Chiropractic And Rehabilitation Center, Corporation vs. United Automobile Insurance Company, Supreme Court of Florida, Case No. SC13-153, May 29, 2014.