Lidsky Vaccaro & Montes, PA v. Morejon

813 So. 2d 146, 2002 WL 384966
CourtDistrict Court of Appeal of Florida
DecidedMarch 13, 2002
Docket3D01-1662
StatusPublished
Cited by18 cases

This text of 813 So. 2d 146 (Lidsky Vaccaro & Montes, PA v. Morejon) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lidsky Vaccaro & Montes, PA v. Morejon, 813 So. 2d 146, 2002 WL 384966 (Fla. Ct. App. 2002).

Opinion

813 So.2d 146 (2002)

LIDSKY VACCARO & MONTES, P.A., Appellant,
v.
Humberto MOREJON, as the Guardian and Natural Father of Javier Morejon, a minor, Appellee.

No. 3D01-1662.

District Court of Appeal of Florida, Third District.

March 13, 2002.
Rehearing Denied April 24, 2002.

*147 Lidsky Vaccaro & Montes, P.A. and Charles L. Vaccaro, Hialeah, for appellant.

Mark J. Feldman, Miami, for appellee.

Before COPE, GREEN, and SHEVIN, JJ.

GREEN, J.

The law firm of Lidsky Vaccaro & Montes (hereinafter "the firm") appeals an order of the circuit court sitting in its appellate capacity that imposed appellate attorney's fees against it, pursuant to Section 57.105, Fla. Stat. (1995). The fees stemmed from its representation of an insurer client in an appeal from the county court. The circuit appellate panel imposed 57.105, attorney's fees against the firm and its client as sanctions for taking what it deemed to be an untimely appeal from a county court order; failing to provide a transcript of an evidentiary hearing; and requesting the court to revisit an earlier appellate ruling. We treat this appeal as a petition for certiorari pursuant to Florida Rule of Appellate Procedure 9.030(b)(2). The firm argues that the circuit appellate panel erred as a matter of law in its findings, and consequently its imposition of sanctions constituted an abuse of discretion. We agree and accordingly grant the petition, and quash the order under review.

The county court suit below began as the result of Javier Morejon, the minor son of appellee, Humberto Morejon, sustaining personal injuries on April 2, 1995 in an automobile accident. The minor plaintiff had coverage for medical bills through a personal injury protection ("PIP") policy with the firm's client, Fortune Insurance Company ("Fortune"). The minor plaintiff, through counsel, applied for medical benefits from Fortune, without submitting any medical bills. On several occasions, Fortune unsuccessfully attempted to take the sworn statement of the minor plaintiff to ascertain whether there was coverage for his claim.

The minor plaintiff subsequently submitted his medical bills to Fortune. When Fortune did not pay these bills within thirty (30) days, the appellees filed suit against Fortune in the county court. Fortune answered the complaint and asserted as affirmative defenses that (1) the minor plaintiff failed to comply with a condition precedent to the lawsuit by failing to submit to a sworn statement; and (2) the plaintiff was *148 not entitled to damages because the lawsuit was filed prematurely.

Fortune moved for and was granted summary judgment based upon its affirmative defenses. The minor plaintiff appealed. The circuit court, sitting in its appellate capacity, reversed the summary judgment and instructed the trial court to reinstate the complaint and ordered the minor plaintiff to submit to a sworn statement pursuant to the PIP policy. The appellate panel also abated the action for thirty (30) days to permit the parties to comply with the court's mandate. The minor plaintiff filed a motion for appellate attorney's fees in this first appeal, but the panel deferred ruling on the motion pending a later determination of the prevailing party.

Pursuant to the mandate of the circuit court, the trial court entered an order reinstating the complaint and abated the action for thirty (30) days to allow the minor plaintiff to comply with Fortune's request for a sworn statement. Fortune finally took the sworn statement of the minor plaintiff on May 21, 1998, over three years after the injuries were incurred. Based upon the testimony elicited during this statement, Fortune concluded that the claim was covered and made full payment of the PIP claim within the thirty (30) day abatement period.

The appellees then filed a motion for summary judgment for entitlement to attorney's fees and costs on the grounds that Fortune had confessed judgment by paying the PIP benefits. Fortune also filed a renewed motion for summary judgment on the grounds that once it was finally able to take the sworn statement of the minor plaintiff, it paid the PIP benefits well within the thirty (30) day abatement period. Fortune maintained that the lawsuit should not have been filed in the first instance and the appellees should not be entitled to any attorney's fees and costs.

After a hearing on both motions for summary judgment, the trial court agreed with Fortune that the thirty (30) day abatement period did not begin to run until the trial court issued its order on May 12, 1998. However, the trial court concluded that Fortune's payment of benefits after the filing of the lawsuit, but within the abatement period was a confession of judgment. Accordingly, the trial court entered an order denying Fortune's motion and granting the appellees' motion stating:

(1) Defendant, Fortune Insurance Company's motion for Summary Judgment is hereby denied.
(2) Plaintiff's Motion for Summary Judgment is hereby GRANTED. Plaintiff is entitled to attorney's fees up to May 26, 1998.

Based upon this order, the appellees filed a motion with the first appellate panel advising them that a summary judgment had been entered in their favor and that their previously filed motion for appellate attorney's fees was still pending. The first panel entered the following order granting the appellees' motion for attorney's fees:

Appellant [Morejon] has obtained a judgment allowing recovery against Appellee [Fortune], his insurer and is now entitled to attorney's fees pursuant to § 627.428. Therefore, it is reasonable to now resolve the pending Motion for Attorney's Fees.

Thereafter, the trial court conducted an evidentiary hearing on the amount of reasonable attorney's fees to be awarded appellees. The trial court entered a final judgment in favor of the appellees assessing attorney's fees in the sum of $24,500 and costs in the sum of $1,200 against Fortune. The firm filed Fortune's notice of appeal of the order of final judgment *149 seeking review of the non-final order granting appellees' motion for summary judgment and determining appellees' entitlement to attorney's fees, and the final judgment assessing fees and costs. A different circuit court panel was assigned to hear this second appeal.

This second circuit court appellate panel issued a written opinion dismissing Fortune's appeal in its entirety and imposing sanctions in the form of section 57.105 attorney's fees against the firm. Without reaching the merits of Fortune's appeal, the appellate panel concluded that the appeal from the order granting the plaintiffs motion for summary judgment was untimely pursuant to Florida Rule of Appellate Procedure 9.130(b), which requires the appeal of a non-final order to be brought within 30 days. The court further held that although Fortune's appeal from the final judgment assessing fees and costs was timely, the appeal of this order nevertheless failed due to Fortune's failure to file a transcript of the evidentiary hearing in which the amount of fees was determined. Finally, the court held that Fortune was impermissibly seeking to have it revisit the previous appellate order granting appellate attorney's fees where it never timely sought rehearing, clarification, or certification of the same. As a result of these conclusions, the circuit court appellate panel deemed the appeal to be frivolous and unsupported by existing law.

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Bluebook (online)
813 So. 2d 146, 2002 WL 384966, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lidsky-vaccaro-montes-pa-v-morejon-fladistctapp-2002.