Nelson v. Pharmerica

180 So. 3d 130, 2015 Fla. App. LEXIS 15699, 2015 WL 6388023
CourtDistrict Court of Appeal of Florida
DecidedOctober 22, 2015
DocketNo. 1D15-1582
StatusPublished

This text of 180 So. 3d 130 (Nelson v. Pharmerica) 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
Nelson v. Pharmerica, 180 So. 3d 130, 2015 Fla. App. LEXIS 15699, 2015 WL 6388023 (Fla. Ct. App. 2015).

Opinion

RAY, J.

In this workers’ compensation appeal, Appellant, the former attorney for Claimant, argues the Judge of Compensation Claims (JCC) erred in denying his motion to strike the Employer/Carrier’s (E/C’s) untimely response to Appellant’s petition [131]*131for attorney’s fees and costs. Because the E/C failed to establish good cause for the late filing, the -JCC had no discretion to reduce the amount- of Appellant’s legally sufficient claim for attorney’s fees and costs. Nonetheless, the. JCC did not err in declining to award payment for legal assistants’ -time, as the petition failed' to establish a prima facie -legal basis for such an award. Accordingly, the final compensation • order awarding fees and costs- is. affirmed in part and reversed in part. ■

I.

Appellant filed with the JCC and served on the E/C an amended verified petition for attorney’s fees and costs on September 19, 2014. Appellant alleged that as a result of both his and his firm’s legal services, medical and indemnity benefits were secured for Claimant for which attorney’s fees were owed, payable by the E/C (the legal services included discovery and three merit hearings). Appellant sought three awards: (1) payment of an attorney’s fee for 129.68 hours at the rate of $275 per hour, or $35,662; (2) payment for legal assistants’ time for 327.57 hours at varying rates (ranging from $46 per hour to- $64 per hour),- or $19,276.72; and (3) costs totaling $11,252.56. The value of the benefits secured was alleged to be $34,261.92.

The E/C filed its verified response on February 6, 2015, bearing an October 16, 2014, certificate of service date. In its response, the E/C alleged that if a statutory guideline fee was not applicable, the reasonable number of hours expended would be 64.75 for a total fee of $12,375; that no time should be awarded for the legal assistants’ time, as those entries were duplicative of attorney time or were otherwise vague; and that the cost reimbursement should be $3,541.50.

On February 27, 2015, Appellant filed a motion to strike the E/C’s factual .defenses on grounds the. E/C failed to serve its verified response within thirty days of service of. Appellant’s motion, and thus Appellant’s allegations.as set out in his verified petition should be accepted as. true. On March 5, 2015, the E/.C filed its objections to Appellant’s motion, alleging, that the response was completed and notarized on October 16, 2014, and “[tjhat after finalizing the Verified Response and having it notarized, the undersigned gave the document to an assistant in the office and askéd that the document be e-filed in the case. ' However, the assistant mistakenly placed the document directly into the file, without filing it with the Court or serving it on [Appellant].” The É/C alleged the response was e-filed as-soon as the error was-discovered. The E/C also alleged that Appellant was not prejudiced by this delay.

The JCC heard argument on Appellant’s motion to strike at the start of the March 9, 2015, hearing on the amended verified petition and advised the parties that she was denying the motion. In her order, the JCC explained her oral ruling:

E/C claimed there was good cause for its failure to file the response timely because, while it was prepared 10/16/14, it was inadvertently not filed and not served on Attorney- Nelson until 2/6/15. E/C argued there was no prejudice to Attorney Nelson’s claim resulting from the late filing, an argument I apcepted because the affidavit was, filed 30 days before final hearing and Attorney Nelson did not require or request additional time or discovery in order to prepare for the fee hearing because.of .the late filing. Further I have not known E/C’s counsel to repeatedly or frequently violate procedural rules; .in fact, I could not recall a prior instance where, he or his firm have been dilatory or, late in making required filings. I recognize that mere inadvertence is not generally good cause [132]*132excusing untimely performance of a mandatory act. Nonetheless I DENIED Attorney Nelson’s motion for the reasons set out above and because of the method in which Attorney Nelson prepared his affidavit. Mr. Nelson’s firm does not keep contemporaneous time records for attorneys.

After review of the evidence, the JCC found that 9.06 hours should be deducted from the 129.68 attorney hours claimed, concluding that 120.62 hours were reasonable. Using an hourly rate of $175 per hour for attorney time expended through 2011, and $200 per hour thereafter, the JCC found a reasonable fee was $21,501.

The JCC did not award any of the paralegal time, finding that the “time was either clerical/secretarial in nature or duplicated activities performed by attorneys for which [the JCC] already awarded fees. It was impossible to tell, for the most part, what paralegal time was directly connected with benefits secured.” The JCC reduced the cost reimbursement amount to $4,047.93, subtracting those amounts she determined were related to claims for which Claimant did not prevail.

II.

Florida Administrative Code Rule 60Q-6.124(3)(b) provides:

Within 30 days after the motion [for payment of disputed attorney’s fees and costs] is served, the opposing party or parties shall file a verified response to the motion which includes a detailed recitation of all matters which are disputed in the form outlined in subparagraphs (3)(a)l.-6. Failure to file a timely and specific response to a motion for attorney’s fees and costs detailing matters that are disputed shall, absent - good cause, result in acceptance of the allegations in the motion as true.

This Court addressed-the question of what constitutes “good cause” in three recent cases. In Morrison Management Specialists v. Pierre, 77 So.3d 662 (Fla. 1st DCA 2011), we acknowledged that “good cause” requires “some showing of ‘good faith on the part of the party seeking an enlargement and some reasonable basis for noncompliance with the time specified’ ” rather than simple inadvertence or mistake of counsel or ignorance of the rules.” Id. at 666 (quoting Winters v. Teledyne Movible Offshore, Inc., 776 F.2d 1304, 1306 (5th Cir.1985)). In Sapp v. Miami-Dade Police Department (Sapp I), 82 So.3d 212, 212-13 (Fla. 1st DCA 2012), the appealed order was reversed and the matter remanded to the JCC to determine “whether the [E/C] had good cause for the lack of specificity of its initial response to Claimant’s fee motion, or for the untimeliness of its amended response to Claimant’s fee motion, and for a ruling on fees given that finding, as to good cause.” In Sapp v. Miami-Dade Police Department (Sapp II), 98 So.3d 1273 (Fla. 1st DCA 2012), this Court reversed and remanded for entry of an order awarding a fee of $45,990, explaining:

Under this court’s remand in Sapp I, onee the JCC determined that no good cause existed to excuse the self-insured Employer’s failure to comply with Florida Administrative Code Rule 60Q-6.124(3)(b), the. JCC had no discretion to reduce the attorney fee award here, as the legal sufficiency of Claimant’s fee petition was not at issue.

III.

A JCC’s determination of whether the E/C demonstrated good cause for not timely filing a response to a verified petition for attorney’s fees and costs is reviewed for abuse of discretion. See Pierre, 77 So.3d at 665. Here, the JCC “recognize[d] that mere inadvertence is [133]

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Related

Dayco Products v. McLane
690 So. 2d 654 (District Court of Appeal of Florida, 1997)
Morrison Management Specialists v. Pierre
77 So. 3d 662 (District Court of Appeal of Florida, 2011)
Jackson v. Ryan's Family Steak House
27 So. 3d 90 (District Court of Appeal of Florida, 2009)
Sapp v. MIAMI-DADE POLICE DEPARTMENT
82 So. 3d 212 (District Court of Appeal of Florida, 2012)
Sapp v. Miami-Dade Police Department
98 So. 3d 1273 (District Court of Appeal of Florida, 2012)

Cite This Page — Counsel Stack

Bluebook (online)
180 So. 3d 130, 2015 Fla. App. LEXIS 15699, 2015 WL 6388023, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nelson-v-pharmerica-fladistctapp-2015.