MARK J. FELDMAN, PA

v.

RICARDO BANCIELLA, PA

SIMON, Judge. Mark J. Feldman, Esquire, Attorney for Appellant. Ricardo Banciella, Esquire, Attorney for Appellee. I ‘L'< .,,. -nu-0 €Zf.l!3V‘£fl=Z Before, THOMAS; HANZMAN and REBULL, JJ. I I‘ Hci

HANZMAN, J.

INTRODUCTION

Fla. R. Civ. P. 1.525 provides that: Any party seeking a judgment taxing costs, attorney’s fees, or both shall serve a motion no later than 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of Bk 28810 Pg 2245 CFN 20130712250 09/O9/2013 09:52:10 Pg 2 Of 8 Mia-Dade Cty, FL bu~.).1.,<.l G011 031:1- ;(/ [*2] voluntary dismissal, which judgment or notice concludes the action as to that party. Id. The Rule, first adopted by the Supreme Court in 2001, establishes “a brightline time requirement for motions for costs and attorney fees...” Saia Motor Freight Line, Inc. v. Reid, 930 So. 2d 598, 600 (Fla. 2006). Prior to its adoption, a prevailing party seeking attorney’s fees and costs was obligated to file a motion within a “reasonable time” after entry of a judgment, Amerus Life Ins. Co. v. Lait, 2 So. 3d 203, 205 (Fla. 2009), an inherently imprecise metric. The thirty (30) day repose period of Rule 1.525 was thus established “to accomplish two goals: first, to cure the “evil” of uncertainty created by tardy motions for fees and costs, see Norris, 907 So. 2d at 1218; and second, to eliminate the prejudice that tardy motions cause to both the opposing party and the trial court.” Barco v. Sch. Bd. of Pinellas County, 9'75 So. 2d 1116, 1123 (Fla. 2008), citing Norris v. Treadwell, 907 So. 2d I217 (Fla. lst DCA 2005). The narrow —and only — issue presented by this appeal is whether the trial court erred in concluding that Appellant’s motionto enforce a previously perfected charging lien against Appellee — its former client — was barred because it was admittedly filed well outside Rule 1.525’s thirty (30) day deadline. In other words, we address the purely legal question of whether the Rule applies to an attorney’s motion to enforce a charging lien; an issue we review de novo. Smith v. Smith, 902 So. 2d 859, 861 (Fla. lst DCA 2005) (the standard of review regarding the trial Bk 28810 Pg 2246 CFN 20130712250 09/09/2013 09:52:10 Gosselin, 869 So. 2d 667, 668 (Fla. 4th DCA 2004) (“Because the trial court's determination that the Wife's amended motion for attorney's fees was barred by Florida Rule of Civil Procedure 1.525 is a legal determination, we review it de novo”).

II.

FACTS AND PROCEDURAL HISTORY

Appellant, Mark J. Feldman, P.A., was retained by Appellee, Florida Wellness & Rehabilitation Center, to file suit against United Automobile Insurance Company based upon an alleged failure to pay medical bills covered by PIP policies. The suit Appellant initiated (this action) was allegedly one of “thousands” brought by Appellee against this carrier. United, in turn, filed an action against Appellee in the United States District Court for the Southern District of Florida alleging, among other things, federal RICO claims. Appellant alleges that Appellee reached a “global settlement” of the federal litigation which resulted in its receipt of a five million dollar ($5,000,000.00) payment from United. On March 9"‘, 2010 Appellant filed and served a notice of charging and retaining lien. There is no dispute that this lien was perfected. See Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik, P.A. v. Baucom, 428 S0. 2d 1383, 1385 (Fla. I983) (“There are no requirements for perfecting a charging lien beyond timely notice”). Eight (8) days later Appellee, through its new counsel, Bk 28810 Pg 2247 CFN 20130712250 09/09/2013 09:52:10 Pg 4 Oi 8 Mia-Dade Cly, FL [*4] voluntarily dismissed the underlying litigation; presumably pursuant to the terms ofthe “global settlement” reached with United in the federal action. On June 25, 2012, more than two (2) years after the filing of the voluntary dismissal, Appellant sought to enforce its lien; a request Appellee maintained was barred by Rule 1.525. Appellee also asserted that there were no settlement funds realized through the litigation upon which a lien could attach. See Litman v. Fine, Jacobson, Schwartz, Nash, Block & England, P.A., 517 So. 2d 88, 91-92 (Fla. 3d DCA I987) (“[I]t is not enough, however, to support the imposition of a charging lien that an attorney has provided his services; the services must, in addition, produce a positive judgment or settlement for the client, since the lien will attach only to the tangible fruits of the services”). Agreeing with what it described as Appellees “procedural” argument, the trial court found the charging lien claim time barred, and therefore did not reach the merits. We reverse.

III.

ANALYSIS

“[I]t is well settled that the Florida Rules of Civil Procedure are construed in accordance with the principles of statutory construction,” Barco, supra at 1121, and that “[w]hen the language ofthe statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.” Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984). Bk 28810 Pg 2248 CFN 20130712250 09/09/2013 09:52:10 Pg 5 of 8 Mia-Dade Cty, FL [*5] Rule 1.525 requires that a “party” seeking to “tax” fees and/or costs serve a motion no later than thirty (30) days alter the entry of a judgment or notice “which concludes the action as to that party.” Id. An attorney representing a client in a litigation matter is not a “party” »~ and an attorney seeking to enforce a charging lien is not seeking to “tax” attorney’s fees and costs based upon a right conferred by a Judgment “which concludes the action” in his or her favor — i.e., prevailing party status. Thus, an attorney’s effort to enforce a previously perfected charging lien clearly is not encompassed by the “plain and obvious” meaning of the Rule. Holly, supra at 219. ‘ I Furthermore, and if this were not enough, the purpose of the Rule, and the “evil” it seeks to prevent, are not implicated in such an action. Obligating a “prevailing party” to file its motion for attorney’s fees and costs within thirty (30) days of “prevailing” is reasonable ~ and furthers the policy of concluding litigation - because a “prevailing party” is always on notice of when its claimed entitlement vests; in other words, a “prevailing party” is on notice of the Judgment which triggers its alleged right to seek fees and costs. Thus, requiring a “prevailing party” to assert its claim within thirty (30) days eliminates “tardy motions” and the unfair prejudice “tardy motions” cause to both the opposing party and trial court. Barco, supra at l 123. Bk 28810 Pg 2249 CFN 20130712250 09/09/2013 09:52:10 Pg 6 Of 8 Mia-Dade Cty, FL [*6] Unlike a “party” receiving a favorable Judgment, an attorney who has perfected a charging lien is typically no longer involved in the litigation, and not directly involved in its conclusion ~‘either by settlement or Judgment. That is precisely why the “lien” is filed: it imposes a burden of disclosure —~ and protection — upon the parties. See Zaldivar v. Okeelanta Corp., 877 So. 2d 927, 930 (Fla. 1st DCA 2004) (given notice of the charging lien both parties had “an ‘affirmative obligation to inform [counsel] of the settlement stipulation”). In some instances parties will disregard those obligations — intentionally or unintentionally — and the attorney will not “discover” the outcome until long alter the case is concluded. To cut off pa lien claim through application of Rule 1.525 ’s thirty (30) day repose period would therefore reward parties for their failure to provide the notification required by law. And in a case involving a perfected charging lien, any “prejudice” suffered by a “tardy” motion is self-imposed. If the parties want the lien claim to be promptly adjudicated, all they have to do is timely disclose the terms of any settlement (or result) to the lienor. If they disregard their obligation to do so, and as a consequence adjudication of the lien claim is delayed, they have no one to blame but themselves.‘ ' The fact that a claim of lien is not within the ambit of Rule 1.525 does not mean that an attorney, with notice of her rights, may sit by idly. A charging lien is an equitable right subject to the equitable defense of Inches. Za/divar, supra at 93 I. Bk 28810 Pg 2250 CFN 20130712250 09/09/2013 09:52:10 Pg 7 Of 8 Mia-Dade Cty, FL [*7] l The trial court’s order dismissing Appellant’s equitable lien claim as untimely pursuant to Fla. R. Civ. P. L525 is reversed and this cause is remanded for fiirther proceedings consistent with this opinion. Bk 2ea¹⁰ Pg 2251 CFN 20100712250 09/00/2013 09:52:10 P9 8 of 8 Mia-Bade ClY- FL