Sunset falls over the Florida Supreme Court building
Sunset falls over the Florida Supreme Court building (Phil Sears)

In a 5-2 split Thursday, the Florida Supreme Court cleared up a complicated attorney fee dispute involving a delayed address change by the Broward clerk’s office.

The disagreement between Advanced Chiropractic and Rehabilitation Center Corp. and United Automobile Insurance Co. was over legal fees for the clinic’s attorney in a personal injury protection case.

Advanced prevailed with a settlement calling for payment of its attorney fees, and the trial court dismissed the case after receiving the notice of settlement.

The order of dismissal should have gone to the clinic’s PIP attorney, but the clerk’s office was slow in processing the attorney’s address change. By the time he got the order, months had passed, and his motion for legal fees was filed after the mandatory deadline.

The attorney received a hearing on the issue, and a clerk’s employee provided a statement about the change of address delay, but the statement was not sworn.

The trial court found the clinic’s error was “excusable neglect” and vacated the dismissal order to allow the motion for legal fees.

United Automobile appealed the dismissal to circuit court, which found the unsworn statement insufficient and reversed the county court decision.

Advanced appealed to the Fourth District Court of Appeal, which ruled Advanced was denied due process.

The company filed its motion for attorney fees in the appellate court. United Automobile was opposed, arguing it was untimely under a rule of appellate procedure.

On rehearing, the Fourth District said United Automobile was wrong about which rule applied, but Advanced still was not entitled to legal fees because of a 1991 state Supreme Court case, Stockman v. Downs, tied to the type of pleading.

“The term ‘pleading’ as used in Stockman included only complaints, answers and counterclaims and not motions,” the Fourth District ruled in 2012.

No Surprise

The case reached the high court because of an alleged conflict with Stockman. Justice R. Fred Lewis wrote the 5-2 opinion remanding the case to district court for a determination of fees.

Lewis said the court had to determine whether the Fourth District misapplied Stockman, where the prevailing party tried to raise entitlement to legal fees for the first time after trial. The court said a claim for legal fees was waived unless it’s in the pleadings, which in Stockman’s case would have been the answer to the complaint.

However, Lewis found that Stockman was distinguishable from the present case because the request for fees was at the trial level. The primary concern in Stockman was a lack of notice, which did not apply to the Advanced case.

“UAIC was on notice that Advanced was claiming entitlement to attorney’s fees because Advanced requested attorney’s fees in the county court and in the circuit court. Accordingly, UAIC could not content it was unfairly surprised when Advanced again claimed entitlement to attorney’s fees for the writ proceeding in the district court,” Lewis said. “Based on the foregoing, we conclude that the Fourth District misapplied Stockman.”

Lewis also noted there was confusion in the lower courts and among the parties about which rule of procedure applied—9.400(b) or 9.100. He said neither, instead going with 9.300, which governs appellate motions.

“Applying this rule, we hold that the motion for attorney’s fees filed by Advanced six days after the district court granted the petition for writ of certiorari was timely.”

Chief Justice Ricky Polston wrote a dissent in which Justice Charles Canady concurred, saying the court should not have accepted jurisdiction because there was no direct conflict.

Michael Neimand is general counsel for United Automobile in Miami. Jennifer Suzanne Carroll of Palm Beach Gardens represented Advanced. There was no comment from either side by deadline.