IN THE SUPREME COURT FOR THE STATE OF FLORIDA CASE NO. SC L. T. CASE NO. 4D11-4801 ADVANCED CHIROPRACTIC AND REHABILITATION CENTER, CORP. d/b/a ADVANCED CHIROPRACTIC AND REHABILITATION CENTER co N (a/a/o AMERICO GALINDO), Petitioner, 2 UNITED AUTOMOBILE INSURANCE COMPANY Respondent. / JURISDICTIONAL BRIEF Jennifer S. Carroll Florida Bar Number: 512796 LAW OFFICES OF JENNIFER S. CARROLL, P.A. 700 Village Square Crossing, Suite 101 Palm Beach Gardens, Florida 33410 (561) 478-2102 [Telephone] (561) 478-2143 [Facsimile] Email: [email protected]Attorney for Petitioner
Transcript
IN THE SUPREME COURT FOR THE STATE OF FLORIDACASE NO. SC
L. T. CASE NO. 4D11-4801
ADVANCED CHIROPRACTIC ANDREHABILITATION CENTER, CORP.d/b/a ADVANCED CHIROPRACTICAND REHABILITATION CENTER co N(a/a/o AMERICO GALINDO),
Petitioner, 2
UNITED AUTOMOBILE INSURANCECOMPANY
Respondent./
JURISDICTIONAL BRIEF
Jennifer S. CarrollFlorida Bar Number: 512796LAW OFFICES OF JENNIFER S. CARROLL, P.A.
700 Village Square Crossing, Suite 101Palm Beach Gardens, Florida 33410(561) 478-2102 [Telephone](561) 478-2143 [Facsimile]Email: [email protected] for Petitioner
Advanced Chiropractic v. United AutomobileCase No. SC
TABLE OF CONTENTS
TABLE OF AUTHORITIES.................................................................................iii
STATEMENT OF THE CASE AND FACTS........................................................1
SUMMARY OF THE ARGUMENT......................................................................4
CERTIFICATE OF SERVICE..............................................................................10
CACERTIFITE OF COMPLIANCE ....................................................................11
CERTIFICATE OF COMPLIANCE WITHADMINISTRATIVE ORDER AOO4-84.........................................:..........11
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Advanced Chiropractic v. United AutomobileCase No. SC
TABLE OF AUTHORITIESCASES:
Arango v. United Automobile Insurance Co., 901 So.2d 320, 321(Fla. 3rd DCA 2005).....................................................................................1
Department of Transportation v. Anglin et al., 502 So.2d 896 (Fla. 1987)............6
Dooley v. Culver, 370 So.2d 1154 (Fla. 4* DCA 1978).........................................9
Green v. Sun Harbor Homeowners' Association,730 So.2d 1261, 1263 (Fla. 1998).........................................................5, 7, 8
Hollywood Injury Rehab Center v. United Automobile Insurance Company,985 So.2d 1221 (Fla. 3rd DCA 2008)...........................................................8
Petitioner appeals the Fourth District Court of Appeal's order granting its
motion for rehearing with respect to Petitioner's motion for attorney's fees under
Section 627.428, Florida Statutes. [A.1]
This case originated with a trial court order awarding fees and costs to
Petitioner's trial attorney under Section 627.428, Florida Statutes.' United
Automobile Insurance Company (hereinafter "UAIC"/Respondent) appealed to the
circuit court in its appellate capacity. The circuit court reversed the trial court's
order awarding attorney's fees and costs.
Petitioner then filed a petition for certiorari in the Fourth District Court of
Appeal. The Fourth District Court of Appeal quashed the circuit court's order, and
reinstated the trial court's original order awarding Plaintiffs trial attorney fees and
costs.
After receiving a favorable opinion, Petitioner's appellate counsel then
moved for fees incurred in the petition for certiorari proceeding pursuant to Section
627.428, which provides:
Upon the rendition of a judgment or decree by any of the courts of thisstate against an insurer and in favor of any named or omnibus insuredor the named beneficiary under a policy or contract executed by the
1 In Arango v. United Automobile Insurance Co., 901 So.2d 320, 321 (Fla. 3rd DCA 2005), theThird District Court of Appeal held that Section 627.428 becomes applicable as soon as theinitial notice of appeal is filed in a PIP case -- even regardless of whether there is any decision onthe merits.
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insurer, the trial court or, in the event of an appeal in which theinsured or beneficiary prevails, the appellate court shall adjudge ordecree against the insurer and in favor of the insured or beneficiary areasonable sum as fees or compensation for the insured's orbeneficiary's attorney prosecuting the suit in which the recovery ishad.
UAIC responded that the request for appellate fees was untimely under
Florida Rule of Appellate Procedure 9.400(b). The Fourth District Court of
Appeal issued a brief order denying Petitioner's motion for fees:
Petitioner's motion for an award of appellate fees filed with thiscourt on September 18, 2012 is denied. The motion was untimelyfiled. See Northern Chamber Devel. Co. v. Weaver, 508 So 2d 390(Fla. 4* DCA 1987); Barrett v. Barrett, 951 So. 2d 24 (Fla. 5* DCA2007).2
Petitioner then filed a motion for rehearing on the basis that Petitioner
believed that the timing parameters set forth in Florida Rule of Appellate
Procedure 9.400(b) did not apply to the filing of a motion for fees in an
extraordinary writ proceeding. Petitioner's position was that in the standard appeal,
the appellate rules lay out the timeline for the initial brief, answer brief, and reply
brief. Rule 9.400(b) applies to this standard timeline for a standard appeal with
respect to a series of briefs which are filed as a matter of course.
Extraordinary writ proceedings are very different. Extraordinary writ
proceedings, which include common law certiorari, are classified among the
2 Note that none of the Rule 9.400(b) cases cited in that order involved an extraordinary writproceeding.
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remedies that are within the original jurisdiction of the appellate courts. They are
governed by Florida Rule of Appellate Procedure 9.100. This rule stands
independent of the other rules of appellate procedure in many respects. For
example, there are no "briefs" in an extraordinary writ proceeding. See Committee
Notes to Rule 9.100, page 798 (2012 Ed.)
By its very language, the time parameters of 9.400(b) apply to motions for
fees in standard appeals which involve "briefs" which are filed as a matter of
course, filed in accordance with 9.210(a), and not extraordinary writ proceedings
governed by Rule 9.100.3
The Fourth District Court of Appeal agreed with Petitioner's position that the
appellate rules regarding timing for filing a motion for attorney's fees do not apply
to fee matters in extraordinary writ proceedings:
In its motion for rehearing, Advanced argues that Rule 9.400(b)applies to "a standard appeal with respect to a series of briefs" but notto an extraordinary writ proceeding governed by Rule 9.100.Advanced correctly observes that the plain language of Rule 9.400(b)speaks of service of a motion for attorney's fees "not later than thetime for service of the reply brief." A "reply brief," however, does notcome into play in a proceeding governed by Rule 9.100; that appellaterule calls for a "petition," a "response," and a "reply." Thus, the timelimitations of rule 9.400(b) do not appear to apply to a Rule 9.100proceeding.
3 Rule 9.100 extraordinary writ proceedings do not really "fit" with the timing parameters setforth in Rule 9.400. For example, if a petition for certiorari is filed and no order to show cause isissued, what is the procedure with respect to requesting appellate attorney's fees in thatproceeding, from the perspective ofboth the petitioner and respondent?
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Nothing in the appellate rules sets forth the procedure forrequesting attorney's fees in a Rule 9.100 proceeding. In the absenceof any guidance in the rules, the pleading requirement for attorney'sfees is controlled by Stockman v. Downs, 573 So. 2d 835, 837 (Fla.1991), where the Supreme Court observed that the "fundamentalconcern is one of notice" and held that a claim for attorneys' fees"must be pled." In this context, the phrase "must be pled" means thatthe request for fees must be contained in a "pleading" in accord withFlorida Rule of Civil Procedure 1.100(a), such that a complaint,answer, and counterclaim are "pleadings," but a motion is not. SeeGreen v. Sun Harbor Homeowners' Ass'n, 730 So. 2d 1261, 1263(Fla. 1998).
Consistent with the notice principles central to Stockman andGreen, the "pleadings" in a rule 9.100 proceeding are the petition,response, and reply, and a request for attorney's fees must be includedin one of them. Advanced did not advance its request for attorney'sfees in its petition or reply. Since the request came after the petitionwas granted, its motion for attorney's fees was untimely. Therefore,Advanced's motion for attorney's fees is denied.
The Fourth District Court of Appeal determined that since it did not believe
the appellate rules applied, the Florida Supreme Court's decision in Stockman v.
Downs, 573 So.2d 835 (Fla. 1991) would apply and govern the procedure for
pursuing fees in extraordinary writ proceedings in the appellate court.
Thereafter, Petitioner filed its notice to invoke.4
SUMMARY OF THE ARGUMENT
In its decision, the Fourth District Court of Appeal ruled that the timing
requirements under Florida Rule of Appellate Procedure 9.400(b) do not apply to
4 Note that the Fourth District Court of Appeal simultaneously issued its mandate with itsopinion granting rehearing.
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requests for attorney's fees in extraordinary writ proceedings. Instead, the Fourth
District Court of Appeal imposed a new standard, and held that requests for
attorney's fees in Rule 9.100 proceedings are governed by the pleading
requirements of Stockman. Petitioner believes the Fourth District's new
requirement, and the rationale upon which it is based, is in direct conflict with this
Court's prior decisions in Stockman v. Downs, 573 So.2d 835 (Fla. 1991) and
Green v. Sun Harbor Homeowners' Association, 730 So.2d 1261, 1263 (Fla.
1998). Petitioner believes the Fourth District has misapplied the Stockman
decision. Stockman does not apply to review proceedings in the appellate courts.
Furthermore, as discussed infra, the rationale in Stockman is simply not applicable
to the circumstances of the type of case currently before this Court.
Further, the Fourth District Court of Appeal's decision is in conflict with a
decision of another district court, which has allowed a request for attorney's fees
under Section 627.428, Florida Statutes to be made after resolution of a petition for
certiorari in a PIP case.
JURISDICTIONAL STATEMENT
The Florida Supreme Court has discretionary jurisdiction to review a
decision of a district court of appeal that expressly and directly conflicts with a
decision of a district court of appeal or the supreme court on the same point of law.
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Art. V §3(b)(3) Fla. Const. (1980); Fla. R. App. 9.030(a)(2)(A)(iv). Further, this
Court has previously held that it has conflict jurisdiction where a district court
misapplies a prior Florida Supreme Court decision, i.e., applying a supreme court
decision to a materially different factual situation in arriving at its conclusion. See
Department of Transportation v. Anglin et al., 502 So.2d 896 (Fla. 1987).
ARGUMENT
In Department of Transportation v. Anglin et al., 502 So.2d 896 (Fla. 1987),
this Court found conflict jurisdiction where "[t]he district court has read our
decision in Gibson too broadly and has applied it to a materially different factual
situation." 502 So.2d 896, 897. Likewise, Petitioner believes that in the present
case, the Fourth District Court of Appeal has misapplied this Court's prior decision
in Stockman v. Downs, 573 So.2d 835 (Fla. 1991). The Fourth District Court of
Appeal has read Stockman too broadly and has applied it to a materially different
factual situation.
As this Court is aware, Stockman concerned the necessity to plead fees
(based on contract or statute) at the trial level. This Court's rationale for pleading
fees at the trial level was as follows:
The fundamental concern is one of notice. Modern pleadingrequirements serve to notify the opposing party of the claims allegedand prevent unfair surprise. 40 Fla. Jur. 2d Pleadings § 2 (1982).Raising entitlement to attorney's fees only after judgment fails to serveeither of these objectives. The existence or nonexistence of a motionfor attorney's fees may play an important role in decisions affecting a
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case. For example, the potential that one may be required to pay anopposing party's attorney's fees may often be determinative in adecision on whether to pursue a claim, dismiss it, or settle. A partyshould not have to speculate throughout the entire course of an actionabout what claims ultimately may be alleged against him.Accordingly, we hold that a claim for attorney's fees, whether basedon statute or contract, must be pled.
573 So.2d 837.5
Petitioner questions whether such rationale is really applicable to the
appellate level -- after fees have already been pled at the trial level. And is such
rationale applicable to a "second-tier" extraordinary writ proceeding to review a
circuit court appeal such as what was involved in the present case?'
The Petitioner's position is that the Fourth District Court of Appeal has
misapplied this Court's decision in Stockman. Stockman does not apply to the
circumstances of this case. Petitioner believes that the questions set forth above
are appropriate issues to be addressed by the Florida Supreme Court.
Furthermore, this Court in Green v. Sun Harbor Homeowners' Association,
730 So.2d 1261, 1262 (Fla. 1998) specifically ruled that its Stockman rule -- that a
claim for attorney's fees must be "pled," is used in its "technical sense," and is not
to be broadly construed. As stated by this Court in Green:
5 Note that this Court in Stockman recognized an exception to its pleading rule: there is nowaiver where a party has notice that the opposing party is claiming entitlement to attorney's fees.573 So.2d 837.6 ESpeCially after appellate fees were requested at the circuit court appellate level.
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The Fourth District's majority decided that when this Court statedin Stockman that a claim for attorney fees must be "pled," the termwas not used in its technical sense and did include motions. This iserroneous. This Court's use of the phrase "must be pled" is to beconstrued in accord with the Florida Rules of Civil Procedure.Complaints, answers, and counterclaims are pleadings pursuant toFlorida Rule of Civil Procedure 1.100(a). ... Stockman is to be read tohold that the failure to set forth a claim for attorney fees in acomplaint, answer, or counterclaim, if filed, constitutes a waiver.However, the failure to set forth a claim for attorney fees in a motiondoes not constitute a waiver.
This Court, via Green, indicated that the Stockman rule was limited to
pleadings defined by the Florida Rules of Civil Procedure and to proceedings
governed by the Florida Rules of Civil Procedure. Note that Florida Rule of Civil
Procedure 1.010 specifically provides that the Florida Rules of Civil Procedure are
applicable to civil actions in the circuit court and the county court. They are not
applicable to review proceedings in the appellate courts. This Court's analysis in
Green would indicate that Stockman is not applicable to review proceedings in the
appellate court.
Moreover, the Fourth District Court of Appeal's decision appears to conflict
the decision of another district court which has addressed the issue of attorney's
fees in extraordinary writ proceedings under Section 627.428, Florida Statutes. In
Hollywood Injury Rehab Center v. United Automobile Insurance Company, 985
So.2d 1221 (Fla. 3rd DCA 2008), the appellant (in a circuit court appeal) had
moved for Section 627.428 appellate fees after obtaining a favorable opinion. The
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circuit court denied the motion for appellate fees. The Third District Court of
Appeal reversed and ruled that the motion for fees should have been granted. It
did not appear that the timing of the motion was an issue. Nor did it appear that
there were specific pleading requirements imposed.7
CONCLUSION
Petitioner believes this Court has discretionary jurisdiction to review the
Fourth District Court of Appeal's decision below. The Fourth District has created a
new standard with respect to procedures governing requests for attorney's fees in
Rule 9.100 proceedings. Such new standard is based on what Petitioner believes to
be a misapplication of prior Florida Supreme Court precedent. Further, confusion
with respect to the proper procedures governing the request for attorney's fees in
extraordinary writ proceedings is apparent from the face of the district court
decisions cited herein. Review of this issue by the Florida Supreme Court is
appropriate and necessary.
7 Note further that in Dooley v. Culver, 370 So.2d 1154 (Fla. 4* DCA 1978), the Fourth DistrictCourt of Appeal entertained a "Request for Attorney's Fees" after disposition of a petition forcertiorari. The court had not issued an order to show cause and declined to issue the writ. Afterdisposition of the petition, the Respondent filed a "Request for Attorney's Fees." The FourthDistrict entertained the request, but denied it because it did not "state the grounds upon whichrecovery is sought." The request did not comply with that particular part of Rule 9.400(b). Butthe court still considered the motion for fees despite the fact that it was brought after dispositionof the petition for certiorari.
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Jenn . aFl' rida ar Number: 512796LA FFICES OF JENNIFER S. CARROLL, P.A.
700 Village Square Crossing, Suite 101Palm Beach Gardens, Florida 33410(561) 478-2102 [Telephone](561) 478-2143 [Facsimile]Email: [email protected] for Petitioner
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished to Michael J. Neimand, Esq., the Office of the General Counsel, United
