UNITED AUTOMOBILE INSURANCE COMPANY v. PROFESSIONAL MEDICAL GROUP, INC., A/A/O MARA LOURDES BARRIOS

• Court: District Court of Appeal of Florida
• Decided: May 12, 2021
• Docket: 21-0116
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed May 12, 2021. Not final until disposition of timely filed motion for rehearing.

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No. 3D21-116 Lower Tribunal Nos. 19-5165SP and 20-104AP ________________

United Automobile Insurance Company, Appellant,

vs.

Professional Medical Group, Inc., a/a/o Maria Lourdes Barrios, Appellee.

An Appeal from the County Court for Miami-Dade County, Lawrence D. King, Judge.

Michael J. Neimand, for appellant.

Feiler & Leach, P.L., and Martin E. Leach, for appellee.

Before FERNANDEZ, HENDON, and BOKOR, JJ.

FERNANDEZ, J. United Automobile Insurance Company (“United Auto”) appeals a

county court order awarding attorney’s fees in favor of Professional Medical

Group, Inc. (“Professional”). Because the county court failed to conduct an

evidentiary hearing on the reasonableness of attorney’s fees, we reverse the

order and remand for the court to conduct an evidentiary hearing.

On July 26, 2019, the county court entered an order dismissing the

action between the parties after a settlement was reached in favor of

Professional. The trial court retained jurisdiction to assess attorney’s fees

and costs. Professional timely filed a motion for attorney’s fees and costs.

On August 30, 2019, the trial court entered an Interim Case Management

Order (“First Interim Order”), requiring the parties to file affidavits pertaining

to the reasonableness of attorney’s fees. The parties ultimately complied

with the order.

On October 11, 2019, United Auto moved for an evidentiary hearing

on the reasonableness of attorney’s fees. On January 27, 2020, the trial

court entered its second Interim Case Management Order (“Second Interim

Order”) that canceled an already scheduled evidentiary hearing, denied

United Auto’s motion for an evidentiary hearing, and provided a list of

discovery procedures the parties may employ at their discretion. Neither

party filed anything in conjunction with the discovery procedure, and the trial

2 court never held an evidentiary hearing. On May 4, 2020, the trial court

entered a final judgment on attorney’s fees. United Auto timely appealed.

By definition, discovery precedes a trial or an evidentiary hearing.

Furthermore, Florida law does not permit a trial court to substitute discovery

procedures for an evidentiary hearing on unliquidated damages. See

Sperdute v. Household Realty Corp., 585 So. 2d 1168, 1169 (Fla. 4th DCA

1991) (“Neither the submission of affidavits nor argument of counsel is

sufficient to constitute an evidentiary hearing. Since the purpose of an

evidentiary hearing is to allow a party to ‘have a fair opportunity to contest’

the factual issues, this purpose is not effectuated if a party is not allowed to

testify.”); see also Newman v. Newman, 121 So. 3d 661, 662 (Fla. 1st DCA

2013) (“[W]e agree that the trial court . . . erred in awarding fees and costs

without conducting a hearing and giving Appellant the opportunity to dispute

the reasonableness of the attorney’s hourly rate and time claimed.”); Guyton

v. Leonard Dewey Wilkinson Action Welding Supply, Inc., 707 So. 2d 885,

886 (Fla. 1st DCA 1998) (“Appellant is entitled to an evidentiary hearing as

to the reasonableness of the amount of fees.”); Roggemann v. Boston Safe

Deposit & Trust Co., 670 So. 2d 1073, 1075 (Fla. 4th DCA 1996) (“A

‘reasonable attorney’s fee’ is an unliquidated item of damages because

testimony must be taken to ascertain facts upon which a judge or jury can

3 base a value judgment. A trial is necessary to establish unliquidated

damages.”); Castranova v. Auth, 590 So. 2d 28, 29 (Fla. 5th DCA 1991)

(“Now it must be done in accordance with Rowe, by having a complete

evidentiary hearing and entering an order with specific findings.”).

Professional argues that United Auto waived its right to an evidentiary

hearing by failing to file anything pursuant to the Second Interim Order. This

argument is without merit. United Auto requested an evidentiary hearing

before the Second Interim Order was entered, and the motion was

unequivocally denied. “By requesting that the court hold an evidentiary

hearing on the issue of attorney’s fees, appellant[ ] preserved [its] right to a

hearing.” Petrovsky v. HSBC Bank, USA, 185 So. 3d 700, 702 (Fla. 4th DCA

2016). The outcome of this appeal would have been different if the interim

order for discovery was in preparation for an evidentiary hearing, but instead,

the trial court improperly substituted discovery procedures for a mandatory

evidentiary hearing in violation of due process.

Accordingly, we reverse the county court’s order awarding attorney’s

fees without an evidentiary hearing and remand with instructions to conduct

an evidentiary hearing on the reasonableness of attorney’s fees.

Reversed and remanded.