UNITED AUTOMOBILE INSURANCE COMPANY v. PROFESSIONAL MEDICAL GROUP, INC., A/A/O MARA LOURDES BARRIOS ( 2021 )

Third District Court of Appeal
State of Florida
Opinion filed May 12, 2021.
Not final until disposition of timely filed motion for rehearing.
________________
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.
4