E]cctronically Filed 07/01/2013 (M:47:23 PM ET

RECEIVED. 7/]/2013 l6:48:35. Thomas D. Hall. Clerk. Supreme Court

IN Tl lE SUPREME COURT FOR THE STATE OF FLORIDA

CASE NO. SCl3-153 L. T. CASR NOS.; 4DI J-4801, 08-52048 CA. 06-9131 COCE

ADVANCED CHlROPRACTIC AN D REHABl LITATION CENTER, CORP. d/b/a ADVANCEDCHIROPRACTIC ANDREHABILITATIONCENTER

(a/a/o AMERICO GALINDO),

Petitioner,

vs.

UNITED AUTOMOBILE INS URANCE COMPANY

Respondent.

PETITIONER'S JNITIAL BRlEF

.Tennifer S. Carroll Florida Bar Number: 512796 LAw OFFICES OF JF.NNIFER 3. CARROll, P.A.

700 Village Square Crossing, Suite 101 Palm Beach Gardens, Florida 334 10 (561) 478-2102 [Telephone] (561) 478-2143 |Facsimile] Email: ic@loiscarroll.com Attorney for Petitioner

Advanced Chiropractic v. United Automobile Case No. SC13-153

TABLEOFCONTENTS

TABLE OF CONTENTS ......................................................................................ii

TABLE OF AUTHORITIES ................................................................................iii

STATEMENT OF THE CASE AND FACTS .......................................................1

SUMMARY OF THE ARGUMENT .....................................................................5

NT . . . . . . . . . .042 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .042 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . .042 . . . . . . . .042

C CSILU . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .042. .042 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . .042

CERTIFICA OF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .042. .042 . . . . . . . . . . . .042 . . . . .042STEERVICE . . .042 . .042. . . . . .042 . . .042.042.042 . . . . . . . . . . . .

CERTIFICATE OF COMPLIANCE ...................................................................13

CERTIFICATE OF COMPLIANCE WITH MMNISTMTIVE OEER AO04-84 ...................................................1

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Advanced Chiropractic v. United Automobile Case No. SC13-153

TABLE OF AUTHORITIES CASES:

Ganz v. HVJ, Inc., 605 So.2d 871 (Fla. 1992)..............................................8, 9, 10

Green v. Sun Harbor Homeowners' Association, 730 So.2d 1261, 1263 (Fla. 1998).........................................................10, 11

Mx Inys. v. Crawford, 700 So.2d 640 (Fla. 1997)..................................................9

State Farm Mutual Automobile Insurance Co. v. Motion X-Ray, Inc., 823 So.2d 312 (Fla. 5th DCA 2002)..............................................................3

Stockman v. Downs, 573 So.2d 835 (Fla. 1991).................... 4, 5, 6, 7, 8, 9, 10, 11

Tampa Letter Carriers, Inc. v. Mack, 649 So.2d 890 (Fla. 2"4 DCA 1995)......9, 10

STATUTES, RULES, AND CONSTITUTIONAL PROVISIONS:

Fla. R. App. 9.100 .....................................................................................2,3, 5, 11

Committee Notes to Rule 9.100 ..............................................................................3

Fla. R. App. 9.400(b) ..........................................................................................2,3

Fla. R. App. P. 57.105 .........................................................................................8,9

Fla. R. Civ. P. 1.010 .......................................................................................10, 11

§627.428, Fla. Stat. .......................................................................................1,6, 11

§627.428(1), Fla. Stat. ..........................................................................................11

§768.79, Fla. Stat. ...............................................................................................4,9

§768.79(6), Fla. Stat. ..............................................................................................9

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STATEMENT OF THE CASE AND FACTS

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 county court trial 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 this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured's or

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beneficiary's attorney prosecuting the suit in which the recovery is had.

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 this court on September 18, 2012 is denied. The motion was untimely filed. See Northern Chamber Devel. Co. v. Weaver, 508 So 2d 390 (Fla. 4th DCA 1987); Barrett v. Barrett, 951 So. 2d 24 (Fla. 5th DCA 2007).1

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. But extraordinary

writ proceedings are very different. Extraordinary writ proceedings, which include

common law certiorari, are classified among the 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

Note that none of the Rule 9.400(b) cases cited in that order involved an extraordinary writ proceeding.

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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.) The Committee Notes to Rule 9.100 state in relevant part:

... this rule does not allow Petitioner to file a brief ...

* * * ... if the allegations of the petition, if true, would constitute grounds for relief, the court may exercise its discretion to issue an order requesting the respondent to show cause why the requested relief should not be granted. A single responsive pleading (without a brief) may then be served ... within the time period set by the court in its order to show cause ... Petitioner is then allowed twenty days to serve a reply and supplemental appendix, unless the court sets another time ....

(e.s.)

Committee Notes to Rule 9.100, page 798 (2012 Ed.) The comments to the Rule

make clear that "briefs" are not filed in certiorari proceedings.

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 9.100.2

2 Rule 9.100 extraordinary writ proceedings do not really "fit" with the timing parameters set forth in Rule 9.400. For example, if a petition for certiorari is filed and no order to show cause is issued, what is the procedure with respect to requesting appellate attorney's fees in that proceeding, from the perspective of both the petitioner and respondent? Rule 9.100 extraordinary writ proceedings do not really "fit" with the timing parameters set forth in Rule 9.400. For example, if a petition for certiorari is filed and no order to show cause is issued, what is the procedure with respect to requesting appellate attorney's fees in that proceeding, from the perspective of both the petitioner and respondent? In State Farm Mutual Automobile Insurance Co. v. Motion X-Ray, Inc., 823 So.2d 312 (Fla. 5* DCA 2002) the Fifth District had dismissed

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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 not to 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 the time for service of the reply brief." A "reply brief," however, does not come into play in a proceeding governed by Rule 9.100; that appellate rule calls for a "petition," a "response," and a "reply." Thus, the time limitations of rule 9.400(b) do not appear to apply to a Rule 9.100 proceeding.

Nothing in the appellate rules sets forth the procedure for requesting attorney's fees in a Rule 9.100 proceeding. In the absence of any guidance in the rules, the pleading requirement for attorney's fees is controlled by Stockman v. Downs, 573 So. 2d 835, 837 (Fla. 1991), where the Supreme Court observed that the "fundamental concern is one of notice" and held that a claim for attorneys' fees "must be pled." In this context, the phrase "must be pled" means that the request for fees must be contained in a "pleading" in accord with Florida Rule of Civil Procedure 1.100(a), such that a complaint, answer, and counterclaim are "pleadings," but a motion is not. See Green v. Sun Harbor Homeowners ' Ass 'n, 730 So. 2d 1261, 1263 (Fla. 1998).

Consistent with the notice principles central to Stockman and Green, the "pleadings" in a rule 9.100 proceeding are the petition, response, and reply, and a request for attorney's fees must be included in one of them. Advanced did not advance its request for attorney's fees in its petition or reply. Since the request came after the petition

the petition, so no order to show cause was ever issued. But the appellate court remanded the case to the lower court to determine if the petitioner was entitled to appellate attorney's fees under Section 768.79, Florida Statutes, and if so, to determine the proper amount.

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was 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 this Court's jurisdiction. On

June 4, 2013, this Court accepted jurisdiction.

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

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 v. Downs, 573 So.2d 835 (Fla. 1991). 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.

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The request for attorneys' fees in this case is specifically governed by the

plain language of the statute - Section 627.428, Florida Statutes. That statute

provides:

Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured's or beneficiary's attorney prosecuting the suit in which the recovery is had.

Entitlement to appellate fees under Section 627.428 arises only when a

favorable decree has been rendered by the appellate court. A petitioner's right to

fees simply does not arise until a favorable decree has been rendered. A good faith

motion or request for fees cannot be made until a favorable ruling has been

obtained.

ARGUMENT

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.

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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 pleading requirements serve to notify the opposing party of the claims alleged and prevent unfair surprise. 40 Fla. Jur. 2d Pleadings § 2 (1982). Raising entitlement to attorney's fees only after judgment fails to serve either of these objectives. The existence or nonexistence of a motion for attorney's fees may play an important role in decisions affecting a case. For example, the potential that one may be required to pay an opposing party's attorney's fees may often be determinative in a decision on whether to pursue a claim, dismiss it, or settle. A party should not have to speculate throughout the entire course of an action about what claims ultimately may be alleged against him. Accordingly, we hold that a claim for attorney's fees, whether based on statute or contract, must be pled.

573 So.2d 837.3

Such rationale is simply not applicable to this type of case. This case was a

fee case from its inception. The first trial court order concerned a dispute

regarding entitlement to fees. That order was then the subject of a circuit court

appeal. And then a "second-tier" extraordinary writ proceeding ensued. The

principal concern in Stockman -- surprise - is nonexistent in this case.

This Court has previously recognized that based on certain circumstances,

and based on the specific statutory language involved, entitlement to statutory

Note that this Court in Stockman recognized an exception to its pleading rule: there is no waiver where a party has notice that the opposing party is claiming entitlement to attorney's fees. 573 So.2d 837.

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attorney's fees are not always required to be pled. In Ganz v. HVJ, Inc., 605 So.2d

871 (Fla. 1992), this court held that entitlement to statutory attorney's fees pursuant

to the statute providing for an award where there was a complete absence of

justiciable issue of either law or fact (§57.105, Fla. Stat.) does not require that the

request for fees be specifically pled. In Ganz, the trial court had found that

plaintiffs suit was baseless, but refused to grant defendant's post-judgment motion

for statutory attorney's fees because of the defendant's failure to plead entitlement

to fees in his answer. The District Court of Appeal affirmed but certified as an

issue of great public importance:

Does the holding in Stockman v. Downs, 573 So.832 (Fla. 1991) require that entitlement to statutory attorney's fees pursuant to Section 57.105, Florida Statutes (1991) be specifically pled?

Ganz had argued in that case that all the parties were on continual notice that

attorney's fees may be awarded under Section 57.105, and therefore there was no

possibility for his surprise, which was the principal concern in Stockman v.

Downs. This Court held as follows:

It is extremely difficult, if not impossible, for a party to plead in good faith its entitlement to attorney's fees under section 57.105 before the case is ended. We agree with the Third District's observation in Autorico, Inc. v. Government Employees Insurance Co., 398 So.2d 485, 487-88 (Fla. 3d DCA 1981):

There is certainly no way for a litigant to know in advance whether the adverse party will raise nothing but frivolous issues in a civil case and, therefore, to plead in good faith its entitlement to attorney's fees under Section

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57.105, Florida Statutes (1979). Indeed, we think it is best to presume good motives on the part of one's adversary even on what appears to be an open and shut case. It is only after the case has been terminated that a sensible judgment can be made by a party as to whether the adverse party raised nothing but frivolous issues in the cause, and, if so, to file an appropriate motion, as here, seeking an entitlement to said attorney's fees under Section 57.105, Florida Statutes (1979).

605 So.2d at 872-73. [Footnotes omitted]

Moreover, in Tampa Letter Carriers, Inc. v. Mack, 649 So.2d 890 (Fla. 2"4

DCA 1995)4, the plaintiffs motion for voluntary dismissal without prejudice was

granted. Thereafter defendant had moved for an award of statutory attorney's fees

pursuant to the offer of judgment statute, Section 768.79, Florida Statutes. The

trial court denied the motion before reaching the merits due to defendant's failure

to make the request in a responsive pleading. The trial judge had relied on

Stockman v. Downs for the proposition that an award of statutory or contractual

attorney's fees must be based upon a request for such fees made in the pleadings

and not by motion after judgment or dismissal. However, the Second District

relied on this Court's rationale in Ganz, supra. The Second District held:

We conclude that the Ganz analysis also applies to fee requests under section 768.79. Moreover, section 768.79(6) seems to specifically provide that requests for attorney's fees under that section be made by motion after judgment.

4 Disapproved on other grounds, Mx Inys. v. Crawford, 700 So.2d 640 (Fla. 1997) (disapproved to extent inconsistent with Court's opinion that there is no entitlement to §768.79 fees if dismissal is without prejudice.)

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649 So.2d at 891.

As in Ganz and Tampa Letter Carriers, Inc., supra., the statute in the present

case contemplates entitlement to fees arising only after the occurrence of a specific

event.

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:

The Fourth District's majority decided that when this Court stated in Stockman that a claim for attorney fees must be "pled," the term was not used in its technical sense and did include motions. This is erroneous. This Court's use of the phrase "must be pled" is to be construed in accord with the Florida Rules of Civil Procedure. Complaints, answers, and counterclaims are pleadings pursuant to Florida Rule of Civil Procedure 1.100(a). ... Stockman is to be read to hold that the failure to set forth a claim for attorney fees in a complaint, answer, or counterclaim, if filed, constitutes a waiver. However, the failure to set forth a claim for attorney fees in a motion does not constitute a waiver.5

This Court, via Green, indicated that the Stockman rule was limited to

pleadings defined by the Florida Rules of Civil Procedure and to proceedings

govemed by the Florida Rules of Civil Procedure. Note that Florida Rule of Civil

Note that in Green, this Court further ruled: "Until a rule is approved for cases that are dismissed before the filing of an answer, we require that a defendant's claim for attorney fees is to be made either in the defendant's motion to dismiss or by a separate motion which must be filed within thirty days following a dismissal of the action. If the claim is not made within this time period, the claim is waived." 730 So.2d at 1263. The Petitioner's Motion for Section 627.428 Fees in this case was submitted within a few days after the Fourth District's opinion on the merits of the Petition for Certiorari.

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Procedure 1.010 specifically provides that the Florida Rules of Civil Procedure are

applicable to civil actions "in the circuit courts and county courts." 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.

CONCLUSION

Stockman does not govern the procedure for requesting attorneys' fees in a

Rule 9.100 proceeding. The appellate rules do not set forth the procedure for

requesting fees in a Rule 9.100 proceeding. The request for attorneys' fees in this

case is specifically governed by the plain language of the statute - Section

627.428, Florida Statutes. Entitlement to appellate fees under Section 627.428

arises pnly when a favorable decree has been rendered by the appellate court. A

petitioner's right to fees simply does not arise until a favorable decree has been

rendered. A good faith motion or request for fees cannot be made until a favorable

ruling has been obtained. Accordingly, Petitioner's Motion for Fees, pursuant to

Section 627.428(1), Florida Statutes, filed "[u]pon the rendition" of a favorable

decree in the certiorari proceedings, was timely.

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Jennife . / / Florida ar Number: 5 7 6 LAW O ICES 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] Service E-mail: ic@lojscarroll.com

Attorney 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

Automobile Insurance Company, Trial Division, P.O. Box 694260, Miami, FL

33269, by U.S. Mail and via e-mail (mneimand@uaig.net), this day of July,

2013.

CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with the font standards, i.e., Times

New Roman 14-point font, as set forth in Florida Rule of Appellate Procedure

9.210(a)(2).

Jennifef . Òarro 1 Florid ar 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: je@lojscarroll.com Attorney for Petitioner

CERTIFICATE OF COMPLIANCE WITH ADMINISTRATIVE ORDER AOO4-84

I hereby certify that I have complied with Administrative Order AOO4-84 in

that a copy ofPetitioner's Brief has been electronically submitted this day of

July, 2013.

Jennifer,S. ICar(oll Florida Éa 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: je@lojscarroll.com Attorney for Petitioner

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