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11 Fla. L. Weekly Supp. 690a

Attorney’s fees — Insurance — Personal injury protection — Post-judgment collection efforts — Where insurer did not challenge final judgment awarding attorney’s fees, but instead informed provider’s attorney at end of thirty-day period for decision as to whether to file appeal that it would pay entire amount of judgment plus interest, and there was no evidence that in informing provider’s attorney that check would be issued once attorney reported back with calculation of interest due insurer was stalling to avoid paying judgment, trial court did not abuse discretion in denying provider’s entitlement to attorney’s fees for collection efforts

PETER J. GODLESKI, M.D., P.A., Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a foreign corporation, Appellee. Circuit Court, 9th Judicial Circuit in and for Orange County. Case No. CVA1 02-25. L.C. Case No. 00-8365. May 11, 2004. Appeal from County Court for Orange County, Wilfredo Martinez, Judge. Counsel: Charles R. George, III, and Robert S. Hoofman, Rush, Marshall, Jones & Kelly, P.A., Orlando; and V. Rand Saltsgaver, Law Office of V. Rand Saltsgaver, Orlando, for Appellant. Stephen J. Jacobs, Drage, de Beaubien, Knight, Simmons, Mantzaris & Neal, LLP, Orlando, for Appellee.

(Before Conrad, Turner, and Roche, JJ.)

ORDER AFFIRMING THE LOWER COURT’S ORDER

(PER CURIAM.) Appellant Peter J. Godleski, M.D., P.A. (“Godleski”) timely filed this appeal of the lower court’s final judgment denying his entitlement to post-judgment attorney’s fees and costs entered by the county court on December 5, 2001, in favor of Appellee State Farm Mutual Automobile Insurance Company (“State Farm”). This Court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(c)(1)(A). We dispense with oral argument pursuant to Florida Rule of Appellate Procedure 9.320.

Factual and Procedural Background

On or about April 8, 2000, Mamie Williams, the policy holder, (“Williams”) was involved in a motor vehicle accident and suffered injuries as a result of the accident. Williams sought treatment from Dr. Godleski under the insurance policy administered by State Farm. On July 25, 2000, Godleksi, as assignee of Williams, filed suit against State Farm to enforce the collection of personal injury protection (PIP) benefits for medical treatment rendered to Williams. State Farm reached a settlement with Godleski on the coverage issue but could not agree on the amount of attorney’s fees due to V. Rand Saltsgaver, Esquire, Godleski’s attorney.

Two hearings on attorney’s fees were held by the trial court. On July 9, 2001, the lower court entered a Final Judgment awarding Godleski a total of $4,122.00, including attorney’s fees, costs, expert witness fees, and prejudgment interest. The order¹ was rendered by the trial court on July 11, 2001. On July 27, 2001, Godleski contacted and retained Charles R. George, III, Esquire, and his law firm, Rush, Marshall, Jones, and Kelly, P.A. (“RMJK”) to proceed with collection efforts.² On August 10, 2001,³ State Farm contacted Mr. George to inform him that it would pay the entire amount of the award plus interest, and asked Mr. George to calculate the amount of pre and post-judgment interest at issue. ⁴ On August 13, 2001, State Farm received correspondence from Mr. George with the interest calculations plus a claim for attorney’s fees in the amount of $829.00 for an additional three-hour of post-judgment collection work. On August 24, 2001, State Farm tendered the full amount of the final judgment, including interest but did not pay the additional post-judgment attorney’s fees.

On September 24, 2001, Godleski moved to tax post-judgment attorney’s fees and costs due RMJK pursuant to sections 627.736(8), 627.428, and 57.115, Florida Statutes. On December 7, 2001, Godleski filed an amended motion to tax post-judgment attorney’s fees and costs due RMJK. The trial court conducted a hearing on the matter and subsequently denied Godleski’s motion on December 5, 2001. On December 19, 2001, Godleski moved for a rehearing on the issue of post-judgment attorney’s fees and costs. On March 22, 2002, the trial court denied Godleski’s motion for rehearing. On April 22, 2002, Godleski filed his appeal. The nature of the orders being appealed are: 1) a final judgment on the issue of entitlement to post-judgment costs and attorney’s fees; and 2) an order denying his motion for rehearing.

Standard of Review

Godleski seeks to have this Court determine whether the lower court erred in denying his request for attorney’s fees associated with post-judgment collection efforts pursuant to sections 627.736(8), 627.428, and 57.115, Florida Statutes. Since the issue of entitlement to attorney’s fees pursuant to statutes is a question of law, the standard of review is de novo. Gibbs Const. Co. v. S.L. Page Corp., 755 So. 2d 787, 790 (Fla. 2d DCA 2000). However, section 57.115 leaves to the trial court the decision of whether to award attorney’s fees based upon the facts of the case; therefore, the standard of review under that section is abuse of discretion. Tower Cranes of Am., Inc. v. Monte Campbell Crane Co. Inc., 627 So. 2d 1350 (Fla. 4th DCA 1993); Black v. Bedford At Lake Catherine Homeowners Ass’n, Inc., 801 So. 2d 252, 253 (Fla. 4th DCA 2001); DiStefano Construction, Inc. v. Fidelity & Deposit Co. of Maryland, 597 So. 2d 248, 250 (Fla. 1992).

Discussion

The sole issue on appeal is whether Godleski is entitled to post-judgment fees and costs in connection with execution on the final judgment entered by the lower court. The law is well-settled in Florida that the court can only award attorney’s fees pursuant to either a contract or statute. Paz v. Hernandez, 654 So. 2d 1243, 1244 (Fla. 3d DCA 1995). Statutes which entitle the insured to attorney’s fees upon the rendition of a judgment against the insurer “must be strictly construed because an award of attorney’s fees is in derogation of common law.” Pepper’s Steel & Alloys, Inc. v. U.S., 850 So. 2d 462, 465 (Fla. 2003).

Section 627.428, Florida Statutes

Godleski argues that he is entitled to an award of post-judgment attorney’s fees pursuant to section 627.428, Florida Statutes. Section 627.428⁵ states that upon rendition of a judgment in favor of the insured, the trial court shall award attorney’s fees in favor of the insured for efforts in prosecuting the case to recovery. Godleski cited Lopez v. Fortune Ins. Co., 4 Fla. L. Weekly Supp. 226a (Fla. Sarasota County Court July 30, 1996), Nationwide Mutual Fire Ins. Co. v. Pinnacle Medical, Inc., 753 So. 2d 55 (Fla. 2000), Gibson v. Walker, 380 So. 2d 531 (Fla. 5th DCA 1980) and Ivey v. Allstate Ins. Co., 774 So. 2d 679 (Fla. 2000) to support his argument.

With the exception of Lopez, 4 Fla. L. Weekly at 226a, we find none of the above cited cases furnish a guide for assessment of plaintiff’s attorney’s fees in subsequent collection work. Lopez, however, involved an award of post-judgment attorney’s fees in favor of the insured for post-judgment hours expended in defense of the attack on the judgments by the insurer. Id. Thus, the court found, based on those grounds, that the Plaintiff was entitled to compensation for post-judgment work. Id. Unlike Lopez, State Farm did not challenge the final judgment entered by the lower court nor was Godleski required to defend the judgment in court. Similarly, in Alloys, 850 So. 2d at 462, the Supreme Court of Florida held that the prevailing insured is entitled to attorney’s fees under section 627.428 in defending against the insurer on whether a valid settlement agreement existed between the parties.

Godleski next argues that the intent of section 627.428 is to encourage prompt payment. Godleski asserts that since State Farm did not seek a stay of execution, he was entitled to proceed with collection efforts and recover attorney’s fees in connection with his collection work. We do not find Godleski’s contention meritorious. Under the circumstances, it was unnecessary for State Farm to obtain a stay of execution by posting a supersedeas bond as contended by Godleski because State Farm did not appeal the final judgment, instead it agreed to pay on the thirtieth day after rendition of the final judgment. Therefore, there was nothing pending on review before this Court which would have required or justified State Farm to post a bond to stay the proceeding. Fitzgerald v. Addison, 287 So. 2d 151 (Fla. 2d DCA 1973) (stating that while the right to appeal is not dependent upon posting a supersedeas bond, the party who is seeking an appeal without filing a supersedeas bond runs the risk of having to satisfy the judgment before the appeal is finished). But see Greenbriar Condominium Assoc., Inc. v. Padgett, 583 So. 2d 1100 (holding that in the absence of filing of a supersedeas bond after the time to appeal had expired, the party seeking to stay the proceeding must demonstrate good cause before the trial court can grant a stay of execution on the judgment).

Section 57.115, Florida Statutes

Godleski asserts that it was necessary under the circumstances to retain the services of RMJK to pursue with the post-judgment collection work because the final judgment provided for execution to issue “forthwith,” which allowed immediate execution. Godleski points to Contemporary Motor Car, Ltd. v. FTC Trading Corp., 8 Fla. L. Weekly Supp. 283a (Fla. Miami-Dade County Court February 27, 2001) as support. In Contemporary, a final judgment was entered in favor of FTC in February 1997 for breach of contract by Contemporary. Id. FTC later transferred the judgment to another state for enforcement but it was denied by the other state. In May 1999, the Florida trial court held that subsequent action taken to domesticate a Florida judgment in another state could be interpreted as enforcing the judgment, entitling FTC to an award of attorney’s fees under sections 57.115, Florida Statutes. Unlike Contemporary, there were no subsequent proceedings in this case to domesticate the final judgment in another state for enforcement.

In addition, an award of attorney’s fees under section 57.115 requires some showing that State Farm attempted to avoid or evade payment of the money judgment to justify the necessity of the costs incurred by Godleski in connection with the execution. In the instant case, there was no evidence that State Farm employed stalling tactics to avoid paying the judgment. State Farm contacted Mr. George of RMJK on the thirtieth day after rendition of the final judgment, which was the last day for State Farm to file an appeal, and informed Mr. George that a check would be issued once Mr. George reported back with a quote, including interest. Even though State Farm did not tender the check until August 24, 2001, Mr. George knew that payment was forthcoming as evidenced in the confirmation letter sent by State Farm on August 10, 2001. Hence, State Farm should be allowed to determine whether or not to file an appeal within thirty-days after rendition of the judgment before incurring attorney’s fees in connection with RMJK’s collection efforts. See Fla. R. Civ. P. 9.110(b).

In sum, State Farm had a right under the thirty-day period to decide whether or not to pursue with an appeal before satisfying the judgment. If State Farm had voluntarily paid the judgment, it would have resulted in a waiver of State Farm’s right to appeal. Consortion Trading Int’l, Ltd. v. Lowrance, 682 So. 2d 221 (Fla. 3d DCA 1996) (holding that if a party voluntarily pays an adverse money judgment, the case becomes moot on appeal). Based on the facts of the case, we cannot agree with Godleski’s contention that State Farm was trying to evade or avoid its obligation under the judgment; rather, the evidence shows that State Farm exercised good faith to satisfy the judgment by sending the confirmation letter and subsequently issuing a check in the amount calculated by Mr. George. See § 57.115, Fla. Stat. (2003).⁶

Accordingly, the trial court did not abuse its discretion in denying Godleski’s entitlement to attorney’s fees for collection efforts under section 57.115.

Based upon the foregoing, it is hereby ORDERED AND ADJUDGED that the trial court’s order dated December 5, 2001 denying Godleski’s entitlement to post-judgment attorney’s fees and costs is AFFIRMED.

It is FURTHER ORDERED AND ADJUDGED that the trial court’s order dated March 22, 2002 denying Godleski’s motion for rehearing is AFFIRMED.

It is also FURTHER ORDERED AND ADJUGDED that Godleski’s motion to tax appellate attorney’s fees and costs is DENIED.

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¹The final judgment directed “let execution issue forthwith.”

²Collection efforts by Mr. George included obtaining a writ of execution, conducting discovery in aid of execution, and corresponding with Mr. Saltsgaver. The interrogatories, which were drafted from a form book, requested information regarding State Farm’s (judgment debtor) total assets.

³August 10, 2001 was the last date for State Farm to file an appeal.

⁴State Farm sent a letter confirming the payment proposal to RMJK and Mr. Saltsgaver.

⁵Section 627.736(8), Florida Statutes states that section 627.428 applies to any dispute under the provisions of sections 627.730-.7405 in PIP cases. Contrary to Godleski’s contention, section 627.736(8) is not a separate statutory mechanism by which to recover attorney’s fees.

⁶Section 57.115 provides in pertinent part that:

(1) The court may award against a judgment debtor reasonable costs and attorney’s fees incurred thereafter by a judgment creditor in connection with execution on a judgment.

(2) In determining the amount of costs, including attorney’s fees, if any, to be awarded under this section, the court shall consider:

(a) Whether the judgment debtor had attempted to avoid or evade the payment of the judgment;and

(b) Other factors as may be appropriate in determining the value of the services provided or the necessity for incurring costs in connection with the execution.

§ 57.115, Fla. Stat. (2003) (emphasis added).

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