Preview
46. Thus, Avatar’s “Motion for Attorney Fees and Costs” is GRANTED.
47. Also, Avatar’s “Second Motion for Attorney Fees and Costs” is GRANTED.
48. It is hereby ADJUDGED that Defendant, Avatar Property and Casualty
{Insurance Company, 1101 East Cumberland Avenue, Tampa, Florida 33602, recover from
Militzok and Levy, P.A., 3230 Stirling Road, Suite 1, Hollywood, Florida 33021, the following
attorney fees pursuant to section 57.105, Florida Statutes:
Biller Hours Rate Amount
Curt Allen, Esquire 79.9 $200.00 $15,980.00
Brian Hohman, 41.2 $185.00 $7,622.00
Esquire
Alex Cayer, Esquire 28.2 $185.00 $5,217.00
Sean Hernandez, 6.3 $185.00 $1,165.50
Esquire
Susan Wittman 3 $95.00 $28.50
Melissa Lopretto 93 $95.00 $883.50
Total Attorney Fees: $30,896.50
49. It is hereby further ADJUDGED that Defendant, Avatar Property and Casualty
Insurance Company, 1101 East Cumberland Avenue, Tampa, Florida 33602, recover
from Militzok and Levy, P.A., 3230 Stirling Road, Suite 1, Hollywood, Florida 33021,
the following costs, including expert costs, pursuant to section 57.041; Florida Statutes,
and, Florida Rule of Civil Procedure 1.420(c):
$ YY. pew
Costs:
50. The total amount owed is $_3/, 2 YO *£ ». The
sum shall bear interest at the applicable statutory rate, for which let execution issue.
51. {tis further ADJUDGED that Militzok and Levy, P.A., shall complete under
oath, pursuant to Florida Rule of Civil Procedure 1.560, Form 1.977 (Fact Information
S.Ba2b86
Sheet), attached hereto, including all required attachments, and serve it on counsel for
Avatar Property and Casualty Insurance Company, Curt Allen, Esquire, 400 North
Ashley Drive, Suite 2300, Tampa, Florida 33602, within 45 days from the date of this final
judgment, unless the final judgment is satisfied or post-judgment discovery is stayed.
52. Jurisdiction of this case is retained to enter further orders that are proper to
compel Militzok and Levy, P.A., to complete a form 1.977, including all required
attachments, and serve it on counsel for Avatar Property and Casualty Insurance Company,
Curt Allen, Esquire, 400 North Ashley Drive, Suite 2300, Tampa, Florida 33602.
DONE AND ORDERED in Chambers, in West Palm Beach, Palm Beach County,
Florida, this 7G day of hae OL
DON. ,AAFELE
Circytt Court Judge
Conformed copies to:
Curt Allen, Esquire
400 North Ashley Drive, Suite 2300
Tampa, Florida 33602
callen@butler.legal
Secondary: eservice@butler.legal
Michael S. Takiff, Esquire
The Yankee Clipper Law Center
3230 Stirling Road, Suite 1
Hollywood, Florida 33021
Michael@milawil.com
Tatiana@mllawfl.com
FLService@mllawfl.com
S.Bo24387
IN THE CIRCUIT COURT OF THE
FIFTEENTH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA
CIRCUIT CIVIL DIVISION
GASPARD RECULE,
Plaintiff,
vs.
AVATAR PROPERTY AND CASUALTY CASE NO: 2015-CA-009814
INSURANCE COMPANY,
Defendant.
/
FACT INFORMATION SHEET
Name of entity:
Name and title of person filling out this form:
Telephone number:
Place of business:
Mailing address (if different):
Gross/taxable income reported for federal income tax purposes last three years:
$ I$, $ I$. $ I$.
Taxpayer identification number:
Is this entity an S corporation for federal income tax purposes? Yes No
Average number of employees per month
S.Ba2d88
Name of each shareholder, member, or partner owning 5% or more of the entity's common
stock, preferred stock, or other equity interest:
Names of officers, directors, members, or partners:
Checking account at:. Account #
Savings account at: Account #
Does the entity own any vehicles? Yes No
For each vehicle please state:
Year/Make/Model:
Color:
Vehicle ID No: Tag No: Mileage:
Names on Title: Present Value: $.
Loan Owed to:
Balance on Loan: $
Monthly Payment: $
Does the entity own any real property? ___ Yes No
If yes, please state the address(es):
Please check if the entity owns the following:
2
S.Ba2d89
Boat
Camper
Stocks/bonds
Other real property
Other personal property
Please attach copies of the following:
1. Copies of state and federal income tax returns for the past 3 years.
2. All bank, savings and loan, and other account books and statements for accounts in
institutions in which the entity had any legal or equitable interest for the past 3 years.
3. All canceled checks for the 12 months immediately preceding the service date of this
Fact Information Sheet for accounts in which the entity held any legal or equitable interest.
4. All deeds, leases, mortgages, or other written instruments evidencing any interest in or
ownership of real property at any time within the 12 months immediately preceding the date
this lawsuit was filed.
5. Bills of sale or other written evidence of the gift, sale, purchase, or other transfer of any
personal or real property to or from the entity within the 12 months immediately preceding
the date this lawsuit was filed.
6. Motor vehicle or vessel documents, including titles and registrations relating to any motor
vehicles or vessels owned by the entity alone or with others.
7. Financial statements as to the entity's assets, liabilities, and owner's equity prepared
within the 12 months immediately preceding the service date of this Fact Information Sheet.
8. Minutes of all meetings of the entity's members, partners, shareholders, or board of
directors held within 2 years of the service date of this Fact Information Sheet.
9. Resolutions of the entity's members, partners, shareholders, or board of directors passed
within 2 years of the service date of this Fact Information Sheet.
UNDER PENALTY OF PERJURY,:| SWEAR OR AFFIRM THAT THE FOREGOING
3
S.B2490
ANSWERS ARE TRUE AND COMPLETE.
JUDGMENT DEBTOR
Designated Representative:. ——
Title:
STATE OF FLORIDA )
)ss:
COUNTY OF ___ )
The foregoing instrument was acknowledged before me the day of
2016, by who is personally
known to me or who has produced (type of identification) as
identification and who did/did not take an oath.
Notary Public
My Commission Expires:
THE JUDGMENT DEBTOR SHALL FILE WITH THE CLERK OF THE COURT A NOTICE
OF COMPLIANCE AFTER THE ORIGINAL FACT INFORMATION SHEET, TOGETHER
WITH ALL ATTACHMENTS, HAS BEEN DELIVERED TO THE JUDGMENT CREDITOR'S
ATTORNEY, OR TO THE JUDGMENT CREDITOR IF THE JUDGMENT CREDITOR IS
NOT REPRESENTED BY AN ATTORNEY.
S.Bad91
IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA
CIVIL DIVISION
SHARON GOLDFARB F/K/A CASE NO,: 50 2011 CA 001138 XXXX MB
SHARON GRYL
Plaintiff,
VS.
STATE FARM FLORIDA INSURANCE
COMPANY
Defendant.
/
ORDER
THIS CAUSE came before the Court on January 31, 2012, upon the “Motion for
Sanctions” made by Defendant, State Farm Florida Insurance Company, and served on
August 18, 2011. The Court, having reviewed the motion, entertained the arguments of
counsel and being otherwise advised in the premises, it is hereby
ORDERED AND ADJUDGED that
the motion is GRANTED. The Court finds that State Farm Florida Insurance
Company is entitled to attorney fees and costs. The Court reserves jurisdiction to
determine the amount at a future hearing
DONE AND ORDERED in Chambers, in West Pam’Beach, Palm Beach County,
Florida, this_ 2/ _day of fawn 2012 OAT TE=e& SIG
D q&
JAN 31 202
JANIS BRUSTARES KEYSER JUDGE
Circuit Court Judge JANIS BRUSTARES KEYSER
EXHIBIT
S.Bo2492 H
Conformed copies to:
Curt Allen, Esquire
777 S. Harbour Island Boulevard, Suite 500
Tampa, Florida 33602
Ms. Sharon Goldfarb
fik/a Sharon Gryl
7676 Bristol Bay Lane
Lake Worth, Florida 33467-7512
S.B22493
IN THE CIRCUIT COURT OF THE
NINETEENTH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
CIRCUIT CIVIL DIVISION
INTEGRATED TRADES LLC
d/b/a TC RESTORATION
alalo ALEXANDRIA LOPEZ,
Plaintiff,
VS.
AVATAR PROPERTY & CASUALTY CASE NO: 2016-CA-2008 Cl
INSURANCE COMPANY,
Defendant.
/
ORDER GRANTING “MOTION FOR ATTORNEY FEES AND COSTS”
THIS. CAUSE came before the Court.upon the “Motion for Attorney Fees and Costs”
(‘Motion’) made by. Defendant, Avatar Property and Casualty Insurance Company
(‘Avatar’), and served on January 20, 2017. The Court, having reviewed the motion,
considered the various submissions of the parties, and, weighed the record evidence
at the June 20, 2017, evidentiary hearing, hereby makes the following findings of fact and
law.
1 Plaintiff sued Avatar for money damages.
2. An response to the lawsuit, Avatar served, but did not yet file, a motion for
sanctions pursuant to section.67.105, Florida Statutes, -
3 The motion advised that the allegations made in the Complaint were
unsupported, in several ways.
4. Plaintiff, and its lawyers, had 21 days following service of the motion to take
corrective action, and, to dismiss the lawsuit. If they did timely dismiss, they would avoid a
EXHIBIT
S.Ba2h94 I
later adverse award for attorney fees. If Plaintiff and its lawyers did not timely dismiss,
Avatar’s right to later seek attorney fees under section 57.105, Florida Statutes, would
become perfected, even in the event of a subsequent, untimely dismissal.
5. Plaintiff and its lawyers did not timely dismiss.
6 Thus, Avatar’s right to later seek attorney fees under section 57.105, Florida
Statutes, became perfected.
7
On January 20, 2017, Plaintiff abandoned and dismissed the lawsuit without
recovery.
8 Therefore, Avatar is the prevailing party, and, entitled to an award of taxable
costs under Florida Rule of Civil Procedure 1.420(c). See, e.g., Tubbs v. Mechanik
Nuccio Hearne & Wester, P.A., 125 So. 3d 1034, 1040 (Fla. 2d DCA 2013) (“In most
instances, ‘when a plaintiff voluntarily dismisses an action, the defendant is the
prevailing party.’ Thornber v. City of Fort Walton Beach, 568 So. 2d 914, 919 (Fla. 1990).”)
9 The same day as the dismissal, Avatar filed the Motion, in accordance with
Florida Rule of Civil Procedure 1.525.
10. Avatar’s request for attorney fees, again, is based on section 57.105, Florida
Statutes.
11. And, the Court retains jurisdiction to resolve Avatar's request. See, e.g.,
Pino v. Bank of New York, 121 So. 3d 23, 50-55 (Fla. 2013) (“If the plaintiff does not file a
notice of voluntary dismissal or withdraw the offending pleading within 21 days of the
defendant's request for sanctions under 57.105, the defendant may file the sanctions
motion with the trial court, whereupon the trial court will have continuing jurisdiction to
resolve the pending motion and to award attorneys’ fees under that provision if
appropriate, regardless of the plaintiffs subsequent dismissal.”). See also, Coney v. State,
995 So. 2d 1038, 1044 (Fla. 4th DCA 2008) (“Coney filed a notice of voluntary dismissal,
S.Bood95
but the filing of a voluntary dismissal does not divest a court of jurisdiction to enter an order
authorizing sanctions”); Van Meter v. State, 726 So. 2d 388, 389 (Fla. ist DCA 1999) (“A
trial court retains jurisdiction to make a determination pursuant to s. 57.105, Florida Statutes
concerning the reasonableness of litigation even after the filing of a notice of voluntary
dismissal’); Neustein v. Miami Shores Village, 837 So. 2d 1054, 1055 (Fla. 3d DCA 2003)
(‘The voluntary dismissal did not oust the trial court of jurisdiction to entertain the
subsection 57.105 motion’); Schultz v. Schickedanz, 884 So. 2d 422, 424 (Fla. 4th DCA
2004) (noting that an appeal does not divest the trial court from addressing fee claims); and,
Bernstein v. Berrin, 516 So. 2d 1042 (Fla. 2d DCA 1987) (same).
12. The Florida Supreme Court has set forth the proper standard to be applied to
requests for attorney fees under section 57.105, Florida Statutes.
As the district court noted in this case, 788 So. 2d at 1061, the statute
no longer applies to only an entire action; it now applies to any claim
or defense. The standard for granting fees also has changed.
Previously, a movant had to show “a complete absence of a justiciable
issue of either law or fact raised by the losing party.” §57.105, Fla.
Stat. (Supp. 1978). Under the revised version however, a movant
need only show that the party and counsel “knew or should have
known” that any claim or defense asserted was (a) not supported by
the facts or (b) not supported by an application of “then-existing” law.
§57.105. Fla. Stat. (2000). The amendments therefore greatly
expanded the statute’s potential use.
Boca Burger, Inc. v. Forum, 912 So. 2d 561, 570 (Fla. 2005). (Emphasis in original)
13. Therefore, if any claim made by Plaintiff is not supported by fact, and, then-
existing law, Avatar is entitled to attorney fees as a matter of law.
14. On June 20, 2017, the Court conducted an evidentiary hearing on the Motion.
Importantly, Avatar presented the testimony of its corporate representative,’ and introduced
4
Plaintiff and its lawyers, while not saying so directly, appear to infer that Avatars designated
representative cannot be an attorney. However, Florida Rule of Civil Procedure 1.310(b)(6) is clear and
unambiguous. And, it does not impose the limitation inferred. To the contrary, the Rule says ~ “The
organization so named shall designate one or more officers, directors, or managing agents, or other
S Bnd06
three exhibits. Plaintiff and its lawyers called no witnesses. They did introduce three
exhibits: the policy; a July 20, 2016, letter from Avatar; and, a document purporting to
be a sworn proof of loss, which, not only did not speak to the loss listed in the Complaint, it
did not include the damages sought by Plaintiff. However, the exhibits introduced by
Plaintiff and its lawyers did not refute the assertions of Avatar. If anything, they supported
the assertions.
15. The unrefuted evidence before the Court conclusively demonstrates that the
lawsuit was unsupported in multiple respects.
16. The Complaint is based entirely on a loss that allegedly occurred on March
22, 2016. While several losses were reported to Avatar, and claims made thereon, no
one ever reported a loss happening on March 22, 2016, nor made a claim for such. Avatar
cannot possibly be said to be in breach for supposedly not paying a claim never made.
17. Also, all losses claimed by the insureds were not covered. Avatar’s
representative testified to this unequivocally, and, Plaintiff and its lawyers reinforced the
same by introducing the July 20, 2016, letter at the hearing. There was no testimony or
evidence presented so much as suggesting the insureds sustained one or more covered
losses. This is in addition to the undisputed fact that, again, the loss listed in the Complaint
was neither reported, nor claimed, by anyone.
18. Further, multiple conditions precedent to recovery, and suit, were not satisfied
prior to the initiation of legal action, or at any time for that matter.
19. Again, the required notice of the loss was not provided to Avatar, the
damage and purported cause of the damage were not shown to Avatar, and, Avatar's right
persons who consent to do so, to testify on its behalf and may state the matters on which each person
designated will testify.” (Emphasis added) Here, Avatar’s representative testified that he had been
designated to speak on behalf of the company, and, that he consented to do so. Accordingly, Rule
1.310(b)(6) was satisfied.
S.Ba2d97
to repair was vitiated.
20. Any one of these violations, in and of itself, renders the policy ineffective, bars
recovery as a matter of law, and, relieves Avatar of its contract obligations.
[T]he material breach of an insured’s duty to perform a condition
precedent renders the insurance contract ineffective and relieves the
insurer of its contract obligations. Starling v. Allstate Floridian Ins. Co.,
956 So. 2d 511, 513 (Fla. Sth DCA 2007); Goldman v. State Farm Fire
Gen. Ins. Co., 660 So. 2d 300, 303 (Fla. 4th DCA 1995).
Progressive Express Ins. Co. v. Menendez, 979 So. 2d 324, 333 (Fla. 3d DCA 2008),
quashed on other grounds, 35 So. 3d 873.
21. In addition, there is the failure to submit a sworn proof of loss for the loss
sued upon. The document introduced by Plaintiff was not for the loss listed in the
Complaint, but rather, for some other loss. Plus, the damages sought by Plaintiff in the
lawsuit were not included, at all. Not to mention, it is uncontroverted that the document was
deficient on its face, and thus a legal nullity, as both insureds did not sign it, as specifically
required by the policy. This violation too precludes recovery.
22. Thus, Avatar is entitled to attorney fees.
23. Accordingly, the Motion is GRANTED.
24. The Court will determine the specific amount owed at a special hearing.
25. The parties are directed to cooperate in the coordination of that hearing, and,
such should be set as soon as practical.
DONE AND ORDERED, in Chambers, in Kissimmee, Osceola County, Florida this
day of , 2017. Original Siened
a4
0?
MARGARET H, SCHREIBER
Circuit ude.
THE HONORABLE MARGARET H. SCHREIBER
Circuit Court Judge
S.Bad98
Conformed copies to:
Curt Allen, Esquire
400 North Ashley Drive, Suite 2300
Tampa, Florida 33602
callen@butler.legal
eservice@butler.legal
Stephanie Feldman, Esquire
Feldman Lawyers, P.A.
9990 Southwest 77th Avenue
Miami, Florida 33156
service@thefeldmanlawyers.com
Daniel L. Kaufman, Esquire
1580 Sawgrass Corporate Parkway, Suite 401
Sunrise, Florida 33323
Diklaw90@gmail.com
mgarcia@asklaw.org
Conformed
and
AUG 16 2947
WEeNoy B
LAIR
S.Bad99
IN THE COUNTY COURT OF THE
SEVENTH JUDICIAL CIRCUIT
IN AND FOR VOLUSIA COUNTY,
FLORIDA
THE KIDWELL GROUP LLC, CASE NO: 2015 12032 CODL
d/b/a AIR QUALITY ASSESSOR DIVISION: 71
OF FLORIDA, a/a/o STEPHEN
BLAIS, SMALL CLAIMS DIVISION
Plaintiff,
vs.
STATE FARM FLORIDA
INSURANCE COMPANY,
Defendant.
AMENDED
FINAL JUDGMENT AWARDING ATTORNEY FEES AND COSTS
(Amended as to Costs Only)
THIS CAUSE came before the Court on June 21, 2016, upon the
Defendant, State Farm Florida Insurance Company’s (“State Farm”), “Motion for
Attorney Fees and Costs” [Docket # 81] and the Court having reviewed the
motion, entertained the arguments of counsel, weighed the record evidence and
being otherwise advised in the premises, hereby makes the following findings of
fact and law:
EXHIBIT
S.B22x00 J
Findings of Fact & Procedural History
1 On May 14, 2015, the Kidwell Group LLC d/b/a Air Quality Assessor
of Florida (“AQA” or “Plaintiff”), relying on the same underlying facts as the
instant case, sued State Farm for breach of contract in Orange County, Florida.
2 In the Orange County case, State Farm served AQA, but did not file
with the Clerk, a motion for sanctions, pursuant to section 57.105, Florida Statutes,
alleging the that the lawsuit filed against State Farm was not supported factually or
legally.
3 AQA dismissed the Orange County action within the 21 days of being
served with the motion for sanctions.
4 In accordance with section 57.105’s 21 day “safe harbor” provision,
State Farm made no request for 57.105 attorney fees in the Orange County case.
5 Subsequent to the dismissal in Orange County, AQA hired a different
law firm from the one that appeared in the Orange County case and by and through
the new law firm, Hogan & Hogan, P.A., AQA filed a Statement of Claim against
State Farm in the Small Claims Division of the Volusia County Court initiating the
instant litigation on November 23, 2016.
6 The Statement of Claim, relying on the same underlying facts as the
Orange County case, alleged in pertinent part that:'
A Stephen Blais (“Blais”), a homeowner, purchased an insurance
" Court Docket No.: 1.
2
S.Bne01
policy (“Policy”) from State Farm. Plaintiff is not in possession of the
Policy, but will request a copy from the Defendant and file it with the
court upon receipt.
B On August 19, 2014, Blais’ home was damaged by a sudden
and accidental water loss.
The Policy covers water damage.
Blais retained the services of AQA who performed mold and
moisture assessment service necessary to mitigate the water
damage to the home.
Blais executed a post-loss assignment of benefits under the
insurance policy to AQA.
AQA submitted an invoice to State Farm in the amount of
$800.00.
State Farm issued one single payment in the amount of
$367.44, purportedly to cover the whole cost of Water Damage
Mitigation, inclusive of Plaintiff's mold assessment services.
State Farm, by remitting payment in the amount of $367.44 has
admitted coverage under the Policy for services rendered by
AQA.
State Farm breached the insurance contract by remitting
payment for less than the actual cost of services necessary to
mitigate damages.
AQA and Blais have complied with all policy conditions
precedent to the filing of the lawsuit.
7 On January 11, 2016, in response to the Statement of Claim, State
Farm filed a Motion for Summary Judgment and pursuant to section 57.105;
S.Ba2%02
3
Florida Statutes” served upon the Plaintiff a “Motion for Sanctions.
8 The Motion for Sanctions put the Plaintiff and its counsel on notice
that if the Plaintiff failed to dismiss the pending action within 21 days of service of
the Motion for Sanctions, then State Farm would seek the imposition of sanctions
against the Plaintiff and Plaintiffs counsel to include an award of attorney’s fees
and costs.
9 Generally, the Motion for Sanctions alleged that “there is no
reasonable basis, in fact or law, to support the allegations set forth in the lawsuit”
and that State Farm did not breach the subject policy in any respect.
10. Specifically, the Motion for Sanctions alleges, “the insured did not
submit a sworn statement in proof of loss within the 60 days following the loss, as
is specifically required by the policy.”
11. Notwithstanding the Motion for Sanctions, the Plaintiff, and its law
firm, continued to litigate this action.
12. On January 14, 2016, pursuant to the Summons and Notice to Appear,
counsel for each of the parties appeared for the Small Claims Pretrial Conference
at which time State Farm denied the allegations set forth in the Statement of Claim
and by agreement of the parties the rules of civil procedure were invoked.
13. On February 2, 2016, as a follow-up to the Motion for Sanctions,
? Pursuant to Fla. Sm. Cl. R. 7.090(C), written pretrial motions and defensive pleading are
ermissive, but not required.
p Court Docket No.: 27.
4
S.Bn303
State Farm sent the Plaintiff a six page letter* explaining in great detail why the
lawsuit was without support, giving the Plaintiff, and its law firm, another
opportunity to dismiss the action without penalty of sanctions and an adverse
award of attorney fees or costs.
14, On February 2, 2016, two months after they served the Statement of
Claim in this action, and nine months after commencing the litigation in Orange
County, AQA, filed a response to State Farm’s Request for Admissions stating that
“Plaintiff lacks sufficient knowledge” as to whether: °
A The Policy required the insured to provide State Farm with
“immediate” notice of loss.
The insured provided State Farm with an immediate notice of
loss.
The Policy required the insured to provide State Farm with a
sworn statement in proof of loss within 60 days following the
loss.
The insured provided State Farm with a sworn statement in
proof of loss within the 60 days following the loss.
The policy required the satisfaction of all policy conditions as a
condition precedent to any legal action.
15. On February 5, 2016, the Plaintiff filed with the Clerk a certified copy
of the Policy at issue in this action.°
16. On February 10, 2016, the Plaintiff filed amended responses to
4 See Defendant’s Exhibit 6 entered into evidence at the hearing on June 21,2016.
5 Court Docket No.: 25.
® Court Docket No.: 28.
5
S.Ba2004
Defendant’s First Request for Admission establishing
A The Policy required the insured to provide State Farm with
immediate notice of loss.
The Policy required the insured to provide a sworn statement in
proof of loss within the 60 days following the loss
Plaintiff still lacked sufficient knowledge to admit or deny
whether a sworn statement in proof of loss was submitted.
The Policy required the satisfaction of all policy conditions as a
condition precedent to legal action against State Farm
Plaintiff filed the subject claim “in good faith that all policy
conditions were satisfied based on the information available.
(Emphasis added).
17. On April 8, 2016, State Farm deposed the Plaintiffs designated
corporate representative and during the deposition, the Plaintiff's designated
corporate representative admitted that:
A The allegations in the Complaint were unsupported. °
B The Plaintiff never had the policy, much less reviewed it,before
twice suing State Farm for supposedly breaching that policy."®
The claim specifically was excluded under no less than three,
T Court Docket No.: 31
5 The Plaintiff objected to the court considering the testimony of the corporate representative on
the basis that the deponent’s answers were in response to hypothetical questions and the
questions posed by State Farms’ Counsel were not factually supported by the record. The
Plaintiff's position on this point is not completely without merit, and while the court gave
consideration to the objection, the court relied upon the overall record as set forth in this
Judgment. It should also be noted that Plaintiff presented no evidence at the attorney fees
hearing to counter the concessions of the corporate representative.
° Depo of Ron Sargent 178:6-7.
'0 Depo
of Ron Sargent 169:17-18; 170:16-19; 172: 20-21.
6
S.B2d05
different policy provisions.'!
No proof of loss was ever submitted.’
State Farm had not breached the policy, and, no payment was
owed to anyone, including Plaintiff.
F State Farm had done nothing wrong.”
18. On April 8, 2016, the same day State Farm concluded the deposition
of AQA’s Corporate Representative, AQA filed a Notice of Voluntary Dismissal
with Prejudice in this action.
19. On April 11, 2016, State Farm filed its Motion for Attorney Fees and
Costs.
20. At the hearing on June 21, 2016 on State Farm’s Motion, Attorney
Jeremy Hogan of Hogan & Hogan, P.A., was called as a witness by State Farm.
21. In substance, Attorney Hogan testified to the following:
A Neither Mr. Hogan nor his client had a copy of the insurance
policy that was alleged to have been breached by State Farm
prior to filing suit, during the time the suit was pending and still
did not have a copy of the policy at the time of the attorneys fee
hearing.’ 5
B Mr. Hogan at no time requested a copy of the policy and he
was not aware of this client having requested a copy of the
"| Depo of Ron Sargent 164:15-17; 174: 20-22; 177: 13-21.
2 Depo of Ron Sargent 172: 17-19; 173: 9-13.
3 Depo of Ron Sargent 184:18-23; 185:16-20.
‘4 The court notes with interest that the testimony of Mr. Hogan left the court with the impression
that neither the Plaintiff nor its counsel had ever seen a copy of policy at issue in this case.
However, as previously noted in this Judgment, Plaintiff filed a certified copy of the policy with
clerk on February 5, 2016.
15 Hearing Transcript 62:15-17; 63:13-20; 66:1-4; 108: 5-9 & 24-25; 109: 1-3
7
S.Ba2206
policy.’®
Mr. Hogan did not recall if he verified the allegations in the
complaint, did not know if anyone verified the allegations in the
complaint, did not know if the complaint was shown to the
client and did not know whether AQA’s corporate
representative was correct that no one at AQA had ever seen the
complaint.”
Mr. Hogan did not know what provision of the policy was
breached,!* but assumed there was a breach on the basis that
State Farm had not paid the full balance of AQA’s bill.”
Although it was alleged in the Complaint that all conditions
precedent to payment had been met, Mr. Hogan did not check
to see what the conditions precedent were and did not know if
they had been met.”
Mr. Hogan acknowledged that generally if a water loss is not
sudden then it is not a covered loss, but a sudden accidental
water loss is a covered loss. In this case, Mr. Hogan did not
know the basis for the claim that the water loss was sudden and
accidental and stated that no one that he was aware of told him
it was sudden and accidental, but he just assumed it was a
covered loss because State Farm tendered a payment.”!
Although Mr. Hogan was not sure if it was the law, he believed
it to be correct that an insurance company could issue payment
even if the loss was not covered under the policy.”
22. In opposition to the Motion for attorney fees, AQA called Richie
'6 Hearing Transcript 62:11-18: 63:15-17; 99:7-9; 108:5-25 109:1-3.
‘7 Hearing Transcript 71:16-25; 72: 1-7.
is Hearing Transcript 62:21-22; 64: 2-14
'9 Dage 64, Lines 10-14.
20 page 67, Lines 13-25 & Page 68, Lines 1-6.
21 page 74, Lines 11-25 & Page 75, Lines 1-14.
2 Page 76, Lines 10-21.
8
S.Ba2807
Kidwell, “the owner” of AQA and the Kidwell Group.”
23. Mr. Kidwell testified in substance that he did not personally handle
any aspect of this claim “besides training those folks that are involved and setting
724
the atmosphere for our policies and procedures . . .
24, Notwithstanding Mr. Kidwell’s lack of personal knowledge, his
testimony only served to confirm that AQA brought this action without regard for
the truth and veracity of the facts upon which this action was based. As an
example, even though AQA acknowledged that the loss would only be covered if
the water loss was sudden and accidental, Mr. Kidwell stated that based on the
reports prepared by AQA’s employee the water loss “could have been sudden, it
925
could not have been.
Analysis Entitlement to §57.105 Fees
25. The basis for State Farm’s claim for attorney fees is section 57.105,
Florida Statues which provides in pertinent part:
(1) Upon... motion of any party, the court shall award
a reasonable attorney’s fee, .. . to be paid .. . in equal
amounts by the losing party and the losing party’s
attorney on any claim... which the court finds that the
losing party or the losing party’s attorney knew or should
have known . . . when initially presented to the court or at
any time before trial:
?3 The testimony of Mr. Kidwell was permitted subject to a standing objection by State Farm that
the deposition of the records custodian and corporate representative had already been taken and
AQA was therefore bound by that testimony.
24 Dage 166, Lines 1-5.
25 Page 142, Lines 15-17.
9
S.Ba2e08
(a) Was not supported by the material facts necessary
to establish the claim or defense; or
(b) Would not be supported by the application of then-
existing law to those material facts. ...
(4) A motion by a party seeking sanctions under this
section must be served but may not be filed with or
presented to the court unless, within 21 days after service
of the motion, the challenged paper, claim, defense,
contention, allegation, or denial is not withdrawn or
appropriately corrected.
26. On April 11, 2016, State Farm timely filed its “Motion for Attorney
Fees and Costs.”
27. The Motion for Attorney Fees & Costs was premised upon the
Plaintiffs failure to dismiss this action within 21 days of being served with State
Farm’s “Motion for Sanctions.”
28. There is no dispute that the Plaintiff was served with the Motion for
Sanctions and Plaintiff continued to litigate this action well beyond 21 days after
being served with the Motion.
29. The issue before this court then becomes whether State Farm has
shown that AQA and Hogan & Hogan “knew or should have known” that the
claim was (a) not supported by the facts or (b) not supported by an application of
“then-existing” law.”°
26 The Florida Supreme Court in Boca Burger, Inc. v. Forum, 912 So.2d 561, 570 (Fla. 2005)
opined on the proper application of section 57.105, Florida Statutes:
[T]he statute no longer applies to only an entire action; it now applies to any claim or
10
S.Ba2d09
30. It is the Plaintiff's position that despite the conditions precedent set
forth in the policy, it could in good faith bring suit because State Farm had
accepted coverage by making a payment. In other words, the Plaintiff asserts there
had to be a breach because State Farm had investigated the claim and tendered a
payment.
31. The fallacy in this argument is that State Farm investigated the claim
and tendered payment, subject to a reservation of rights, and the full protections of
section 627.426(1), Florida Statutes.””
32. In accordance with section 627.426(1), State Farm’s tender of
defense. The standard for granting fees also has changed. Previously, a movant had to
show “a complete absence of a justiciable issue of either law or fact raised by the losing
party.” §57.105, Fla. Stat. (Supp. 1978). Under the revised version however, a movant
need only show that the party and counsel “knew or should have known” that any claim
or defense asserted was (a) not supported by the facts or (b) not supported by an
application of “then-existing” law. §57.105. Fla. Stat. (2000). The amendments
therefore greatly expanded the statute’s potential use.).
27 Section 627.426(1), Florida Statutes, provides:
(1) Without limitation of any right or defense of an insurer otherwise, none of the
following acts by or on behalf of an insurer shall be deemed to constitute a waiver
of any provision of a policy or of any defense of the insurer thereunder:
(a) Acknowledgment of the receipt of notice of loss or claim under the policy.
(b) Furnishing forms for reporting a loss or claim, for giving information relative
thereto, or for making proof of loss, or receiving or acknowledging receipt of any
such forms or proofs completed or uncompleted.
(c) Investigating any loss or claim under any policy or engaging in negotiations
looking toward a possible settlement of any such loss or claim.
See also, Rodrigo v. State Farm Florida Ins. Co., 144 So. 3d 690 (Fla. 4th DCA 2014); and,
Exotic Furniture, Inc., v. Am. Cas. Co. of Reading, 173 So. 3d 894 (Fla. 2d DCA 2015).
11
S.Ba2e10
payment, jointly to the Plaintiff and a third party, did not waive any of the
insured’s obligations under the policy, nor did it waive any defense otherwise
available to State Farm.
33. Although not dispositive in and of itself, the Court’s analysis starts
with the fact that at the time Plaintiff filed this breach of contract action, the
Plaintiff did not have a copy of the contract, to wit: the policy that the Plaintiff
alleged was breached by State Farm.”*
34. Despite not having a copy of the policy, the Plaintiff alleged in
Paragraph Twenty-Three of the Complaint that “Plaintiff and the homeowner
assignor have complied with all policy conditions precedent to filing this lawsuit.”
35. Notwithstanding this allegation, the Plaintiff in its response to the
request for admissions admitted not knowing what the conditions precedent were
and whether those conditions had been met.
36. Even more concerning was the testimony of Attorney Hogan wherein
he stated he did not check to see what the conditions precedent were and he did not
know if they had been met.
37. Specifically, the policy in question issued by State Farm requires the
fulfillment of certain duties in the event of a loss” such as, the submission of a
28 This Court is mindful that Breach of Contract actions are often filed without the Plaintiff
having a copy of the contract in their possession, but Plaintiff's insistence on continuing to
litigate after being put on notice of the deficiencies in its case was at its own peril.
29
“Conditions in policies of insurance are part of the consideration for assuming the risk, and
12
S.Bo2el 1
sworn proof of loss within the 60 days following a loss.
38. Here, a sworn proof of loss was never submitted by anyone, much less
within the mandated 60 days after the loss.
39. Further, AQA’s corporate representative acknowledged during his
deposition that the claim was not a covered loss and at the time of the attorneys fee
hearing, neither Mr. Hogan nor Mr. Kidwell could say whether the water damage
resulted from a sudden and accidental discharge, while acknowledging that policy
did not cover the claim unless it was a sudden and accidental discharge.
40. The court having considered the Plaintiffs response to State Farm’s
Request for Admissions, the sworn testimony of the Plaintiff's designated
corporate representative, and the testimony of one of the Plaintiff's lawyers,
Jeremy Hogan, finds that at the time the Plaintiff commenced this action there was
a complete lack of factual support for the lawsuit.
41. Accordingly, the Court finds that the lawsuit brought against State
Farm was unsupported by fact or law, and that State Farm is entitled to recover its
reasonable Attorney Fees.
42. Having determined that the action filed by the Plaintiff was not
supported in fact or law, Section 57.105, Florida Statues provides that the Court
shall apportion the attorney fees between the Plaintiff & Counsel unless:
the insured, by accepting the policy, becomes bound by these conditions.” Goldman v. State
Farm Fire Gen. Ins. Co., 660 So. 2d 300, 304 (Fla. 4th DCA 1995).
13
S.Barel2
(3) Notwithstanding subsections (1) and (2), monetary
sanctions may not be awarded:
(a) Under paragraph (1)(b) if the court determines that
the claim or defense was initially presented to the court
as a good faith argument for the extension, modification,
or reversal of existing law or the establishment of new
law, as it applied to the material facts, with a reasonable
expectation of success.
(b) Under paragraph (1)(a) or paragraph (1)(b) against
the losing party’s attorney if he or she has acted in good
faith, based on the representations of his or her client as
to the existence of those material facts.
(c) Under paragraph (1)(b) against a represented party.
43, The court having considered the requirements of section 57.105(3)
further finds that the Plaintiff and its attorneys equally demonstrated a complete
lack of concern for the accuracy of the facts as set forth in the Statement of Claim
and accordingly the attorney fees awarded pursuant to this Judgment shall be paid
in equal amounts by the Plaintiff and the Plaintiff's attorneys.
44. As aresult of the dismissal, the Court also finds that State Farm is the
prevailing party and entitled to an award of costs under section 57.041, Florida
Statutes, and, Florida Rule of Civil Procedure 1.420(c).°
Analysis as to Amount of Attorney Fees & Costs
45. As to the amount of Attorney Fees, State Farm called three witnesses
39 See, e.g., Tubbs v. Mechanik Nuccio Hearne & Wester, P.A., 125 So. 3d 1034, 1040 (Fla. 2d
DCA 2013) (“In most instances, ‘when a plaintiff voluntarily dismisses an action, the defendant
is the prevailing party.’ Thornber v. City of Fort Walton Beach, 568 So. 2d 914, 919 (Fla.
1990).”).
14
S.Bo2013
and introduced numerous exhibits. Plaintiff and its law firm called no witnesses,
and introduced no exhibits. Therefore, the testimony and evidence presented by
State Farm was unrefuted.
46. Specifically, at the hearing on the Motion for attorney fees, State
Farm presented the expert testimony of Attorney Janet Brown.
47. Ms. Brown testified that she had reviewed the files and invoices of
State Farm’s counsel as to the reasonableness and necessity of those charges or
fees.
48. Ms. Brown further testified that in her opinion, the hourly rates
charged by each of the attorneys and the paralegal who worked on this case were
reasonable. Additionally, Ms. Brown testified that the scope of the services
rendered was reasonable and necessary in defense of the action filed by AQA and
having reviewed each of the invoices, she did not find anything that should be
reduced or eliminated.
49. The Plaintiff presented no testimony in opposition to the opinion
expressed by Ms. Brown, however, the Plaintiff did raise questions related to the
compensability of travel time, block billing, duplicative entries, the time from
which attorney fees should be awarded, and the number of attorneys working on
the case and the overall amount sought for a one count breach of contract action.
50. Although the general proposition is that travel time is not
15
S.Boo%l4
compensable, there are exceptions to the rule.
51. The courts have held that attorney travel time may be included in an
attorney fee award a
Preview
46. Thus, Avatar’s “Motion for Attorney Fees and Costs” is GRANTED. 47. Also, Avatar’s “Second Motion for Attorney Fees and Costs” is GRANTED. 48. It is hereby ADJUDGED that Defendant, Avatar Property and Casualty {Insurance Company, 1101 East Cumberland Avenue, Tampa, Florida 33602, recover from Militzok and Levy, P.A., 3230 Stirling Road, Suite 1, Hollywood, Florida 33021, the following attorney fees pursuant to section 57.105, Florida Statutes: Biller Hours Rate Amount Curt Allen, Esquire 79.9 $200.00 $15,980.00 Brian Hohman, 41.2 $185.00 $7,622.00 Esquire Alex Cayer, Esquire 28.2 $185.00 $5,217.00 Sean Hernandez, 6.3 $185.00 $1,165.50 Esquire Susan Wittman 3 $95.00 $28.50 Melissa Lopretto 93 $95.00 $883.50 Total Attorney Fees: $30,896.50 49. It is hereby further ADJUDGED that Defendant, Avatar Property and Casualty Insurance Company, 1101 East Cumberland Avenue, Tampa, Florida 33602, recover from Militzok and Levy, P.A., 3230 Stirling Road, Suite 1, Hollywood, Florida 33021, the following costs, including expert costs, pursuant to section 57.041; Florida Statutes, and, Florida Rule of Civil Procedure 1.420(c): $ YY. pew Costs: 50. The total amount owed is $_3/, 2 YO *£ ». The sum shall bear interest at the applicable statutory rate, for which let execution issue. 51. {tis further ADJUDGED that Militzok and Levy, P.A., shall complete under oath, pursuant to Florida Rule of Civil Procedure 1.560, Form 1.977 (Fact Information S.Ba2b86 Sheet), attached hereto, including all required attachments, and serve it on counsel for Avatar Property and Casualty Insurance Company, Curt Allen, Esquire, 400 North Ashley Drive, Suite 2300, Tampa, Florida 33602, within 45 days from the date of this final judgment, unless the final judgment is satisfied or post-judgment discovery is stayed. 52. Jurisdiction of this case is retained to enter further orders that are proper to compel Militzok and Levy, P.A., to complete a form 1.977, including all required attachments, and serve it on counsel for Avatar Property and Casualty Insurance Company, Curt Allen, Esquire, 400 North Ashley Drive, Suite 2300, Tampa, Florida 33602. DONE AND ORDERED in Chambers, in West Palm Beach, Palm Beach County, Florida, this 7G day of hae OL DON. ,AAFELE Circytt Court Judge Conformed copies to: Curt Allen, Esquire 400 North Ashley Drive, Suite 2300 Tampa, Florida 33602 callen@butler.legal Secondary: eservice@butler.legal Michael S. Takiff, Esquire The Yankee Clipper Law Center 3230 Stirling Road, Suite 1 Hollywood, Florida 33021 Michael@milawil.com Tatiana@mllawfl.com FLService@mllawfl.com S.Bo24387 IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CIRCUIT CIVIL DIVISION GASPARD RECULE, Plaintiff, vs. AVATAR PROPERTY AND CASUALTY CASE NO: 2015-CA-009814 INSURANCE COMPANY, Defendant. / FACT INFORMATION SHEET Name of entity: Name and title of person filling out this form: Telephone number: Place of business: Mailing address (if different): Gross/taxable income reported for federal income tax purposes last three years: $ I$, $ I$. $ I$. Taxpayer identification number: Is this entity an S corporation for federal income tax purposes? Yes No Average number of employees per month S.Ba2d88 Name of each shareholder, member, or partner owning 5% or more of the entity's common stock, preferred stock, or other equity interest: Names of officers, directors, members, or partners: Checking account at:. Account # Savings account at: Account # Does the entity own any vehicles? Yes No For each vehicle please state: Year/Make/Model: Color: Vehicle ID No: Tag No: Mileage: Names on Title: Present Value: $. Loan Owed to: Balance on Loan: $ Monthly Payment: $ Does the entity own any real property? ___ Yes No If yes, please state the address(es): Please check if the entity owns the following: 2 S.Ba2d89 Boat Camper Stocks/bonds Other real property Other personal property Please attach copies of the following: 1. Copies of state and federal income tax returns for the past 3 years. 2. All bank, savings and loan, and other account books and statements for accounts in institutions in which the entity had any legal or equitable interest for the past 3 years. 3. All canceled checks for the 12 months immediately preceding the service date of this Fact Information Sheet for accounts in which the entity held any legal or equitable interest. 4. All deeds, leases, mortgages, or other written instruments evidencing any interest in or ownership of real property at any time within the 12 months immediately preceding the date this lawsuit was filed. 5. Bills of sale or other written evidence of the gift, sale, purchase, or other transfer of any personal or real property to or from the entity within the 12 months immediately preceding the date this lawsuit was filed. 6. Motor vehicle or vessel documents, including titles and registrations relating to any motor vehicles or vessels owned by the entity alone or with others. 7. Financial statements as to the entity's assets, liabilities, and owner's equity prepared within the 12 months immediately preceding the service date of this Fact Information Sheet. 8. Minutes of all meetings of the entity's members, partners, shareholders, or board of directors held within 2 years of the service date of this Fact Information Sheet. 9. Resolutions of the entity's members, partners, shareholders, or board of directors passed within 2 years of the service date of this Fact Information Sheet. UNDER PENALTY OF PERJURY,:| SWEAR OR AFFIRM THAT THE FOREGOING 3 S.B2490 ANSWERS ARE TRUE AND COMPLETE. JUDGMENT DEBTOR Designated Representative:. —— Title: STATE OF FLORIDA ) )ss: COUNTY OF ___ ) The foregoing instrument was acknowledged before me the day of 2016, by who is personally known to me or who has produced (type of identification) as identification and who did/did not take an oath. Notary Public My Commission Expires: THE JUDGMENT DEBTOR SHALL FILE WITH THE CLERK OF THE COURT A NOTICE OF COMPLIANCE AFTER THE ORIGINAL FACT INFORMATION SHEET, TOGETHER WITH ALL ATTACHMENTS, HAS BEEN DELIVERED TO THE JUDGMENT CREDITOR'S ATTORNEY, OR TO THE JUDGMENT CREDITOR IF THE JUDGMENT CREDITOR IS NOT REPRESENTED BY AN ATTORNEY. S.Bad91 IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CIVIL DIVISION SHARON GOLDFARB F/K/A CASE NO,: 50 2011 CA 001138 XXXX MB SHARON GRYL Plaintiff, VS. STATE FARM FLORIDA INSURANCE COMPANY Defendant. / ORDER THIS CAUSE came before the Court on January 31, 2012, upon the “Motion for Sanctions” made by Defendant, State Farm Florida Insurance Company, and served on August 18, 2011. The Court, having reviewed the motion, entertained the arguments of counsel and being otherwise advised in the premises, it is hereby ORDERED AND ADJUDGED that the motion is GRANTED. The Court finds that State Farm Florida Insurance Company is entitled to attorney fees and costs. The Court reserves jurisdiction to determine the amount at a future hearing DONE AND ORDERED in Chambers, in West Pam’Beach, Palm Beach County, Florida, this_ 2/ _day of fawn 2012 OAT TE=e& SIG D q& JAN 31 202 JANIS BRUSTARES KEYSER JUDGE Circuit Court Judge JANIS BRUSTARES KEYSER EXHIBIT S.Bo2492 H Conformed copies to: Curt Allen, Esquire 777 S. Harbour Island Boulevard, Suite 500 Tampa, Florida 33602 Ms. Sharon Goldfarb fik/a Sharon Gryl 7676 Bristol Bay Lane Lake Worth, Florida 33467-7512 S.B22493 IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA CIRCUIT CIVIL DIVISION INTEGRATED TRADES LLC d/b/a TC RESTORATION alalo ALEXANDRIA LOPEZ, Plaintiff, VS. AVATAR PROPERTY & CASUALTY CASE NO: 2016-CA-2008 Cl INSURANCE COMPANY, Defendant. / ORDER GRANTING “MOTION FOR ATTORNEY FEES AND COSTS” THIS. CAUSE came before the Court.upon the “Motion for Attorney Fees and Costs” (‘Motion’) made by. Defendant, Avatar Property and Casualty Insurance Company (‘Avatar’), and served on January 20, 2017. The Court, having reviewed the motion, considered the various submissions of the parties, and, weighed the record evidence at the June 20, 2017, evidentiary hearing, hereby makes the following findings of fact and law. 1 Plaintiff sued Avatar for money damages. 2. An response to the lawsuit, Avatar served, but did not yet file, a motion for sanctions pursuant to section.67.105, Florida Statutes, - 3 The motion advised that the allegations made in the Complaint were unsupported, in several ways. 4. Plaintiff, and its lawyers, had 21 days following service of the motion to take corrective action, and, to dismiss the lawsuit. If they did timely dismiss, they would avoid a EXHIBIT S.Ba2h94 I later adverse award for attorney fees. If Plaintiff and its lawyers did not timely dismiss, Avatar’s right to later seek attorney fees under section 57.105, Florida Statutes, would become perfected, even in the event of a subsequent, untimely dismissal. 5. Plaintiff and its lawyers did not timely dismiss. 6 Thus, Avatar’s right to later seek attorney fees under section 57.105, Florida Statutes, became perfected. 7 On January 20, 2017, Plaintiff abandoned and dismissed the lawsuit without recovery. 8 Therefore, Avatar is the prevailing party, and, entitled to an award of taxable costs under Florida Rule of Civil Procedure 1.420(c). See, e.g., Tubbs v. Mechanik Nuccio Hearne & Wester, P.A., 125 So. 3d 1034, 1040 (Fla. 2d DCA 2013) (“In most instances, ‘when a plaintiff voluntarily dismisses an action, the defendant is the prevailing party.’ Thornber v. City of Fort Walton Beach, 568 So. 2d 914, 919 (Fla. 1990).”) 9 The same day as the dismissal, Avatar filed the Motion, in accordance with Florida Rule of Civil Procedure 1.525. 10. Avatar’s request for attorney fees, again, is based on section 57.105, Florida Statutes. 11. And, the Court retains jurisdiction to resolve Avatar's request. See, e.g., Pino v. Bank of New York, 121 So. 3d 23, 50-55 (Fla. 2013) (“If the plaintiff does not file a notice of voluntary dismissal or withdraw the offending pleading within 21 days of the defendant's request for sanctions under 57.105, the defendant may file the sanctions motion with the trial court, whereupon the trial court will have continuing jurisdiction to resolve the pending motion and to award attorneys’ fees under that provision if appropriate, regardless of the plaintiffs subsequent dismissal.”). See also, Coney v. State, 995 So. 2d 1038, 1044 (Fla. 4th DCA 2008) (“Coney filed a notice of voluntary dismissal, S.Bood95 but the filing of a voluntary dismissal does not divest a court of jurisdiction to enter an order authorizing sanctions”); Van Meter v. State, 726 So. 2d 388, 389 (Fla. ist DCA 1999) (“A trial court retains jurisdiction to make a determination pursuant to s. 57.105, Florida Statutes concerning the reasonableness of litigation even after the filing of a notice of voluntary dismissal’); Neustein v. Miami Shores Village, 837 So. 2d 1054, 1055 (Fla. 3d DCA 2003) (‘The voluntary dismissal did not oust the trial court of jurisdiction to entertain the subsection 57.105 motion’); Schultz v. Schickedanz, 884 So. 2d 422, 424 (Fla. 4th DCA 2004) (noting that an appeal does not divest the trial court from addressing fee claims); and, Bernstein v. Berrin, 516 So. 2d 1042 (Fla. 2d DCA 1987) (same). 12. The Florida Supreme Court has set forth the proper standard to be applied to requests for attorney fees under section 57.105, Florida Statutes. As the district court noted in this case, 788 So. 2d at 1061, the statute no longer applies to only an entire action; it now applies to any claim or defense. The standard for granting fees also has changed. Previously, a movant had to show “a complete absence of a justiciable issue of either law or fact raised by the losing party.” §57.105, Fla. Stat. (Supp. 1978). Under the revised version however, a movant need only show that the party and counsel “knew or should have known” that any claim or defense asserted was (a) not supported by the facts or (b) not supported by an application of “then-existing” law. §57.105. Fla. Stat. (2000). The amendments therefore greatly expanded the statute’s potential use. Boca Burger, Inc. v. Forum, 912 So. 2d 561, 570 (Fla. 2005). (Emphasis in original) 13. Therefore, if any claim made by Plaintiff is not supported by fact, and, then- existing law, Avatar is entitled to attorney fees as a matter of law. 14. On June 20, 2017, the Court conducted an evidentiary hearing on the Motion. Importantly, Avatar presented the testimony of its corporate representative,’ and introduced 4 Plaintiff and its lawyers, while not saying so directly, appear to infer that Avatars designated representative cannot be an attorney. However, Florida Rule of Civil Procedure 1.310(b)(6) is clear and unambiguous. And, it does not impose the limitation inferred. To the contrary, the Rule says ~ “The organization so named shall designate one or more officers, directors, or managing agents, or other S Bnd06 three exhibits. Plaintiff and its lawyers called no witnesses. They did introduce three exhibits: the policy; a July 20, 2016, letter from Avatar; and, a document purporting to be a sworn proof of loss, which, not only did not speak to the loss listed in the Complaint, it did not include the damages sought by Plaintiff. However, the exhibits introduced by Plaintiff and its lawyers did not refute the assertions of Avatar. If anything, they supported the assertions. 15. The unrefuted evidence before the Court conclusively demonstrates that the lawsuit was unsupported in multiple respects. 16. The Complaint is based entirely on a loss that allegedly occurred on March 22, 2016. While several losses were reported to Avatar, and claims made thereon, no one ever reported a loss happening on March 22, 2016, nor made a claim for such. Avatar cannot possibly be said to be in breach for supposedly not paying a claim never made. 17. Also, all losses claimed by the insureds were not covered. Avatar’s representative testified to this unequivocally, and, Plaintiff and its lawyers reinforced the same by introducing the July 20, 2016, letter at the hearing. There was no testimony or evidence presented so much as suggesting the insureds sustained one or more covered losses. This is in addition to the undisputed fact that, again, the loss listed in the Complaint was neither reported, nor claimed, by anyone. 18. Further, multiple conditions precedent to recovery, and suit, were not satisfied prior to the initiation of legal action, or at any time for that matter. 19. Again, the required notice of the loss was not provided to Avatar, the damage and purported cause of the damage were not shown to Avatar, and, Avatar's right persons who consent to do so, to testify on its behalf and may state the matters on which each person designated will testify.” (Emphasis added) Here, Avatar’s representative testified that he had been designated to speak on behalf of the company, and, that he consented to do so. Accordingly, Rule 1.310(b)(6) was satisfied. S.Ba2d97 to repair was vitiated. 20. Any one of these violations, in and of itself, renders the policy ineffective, bars recovery as a matter of law, and, relieves Avatar of its contract obligations. [T]he material breach of an insured’s duty to perform a condition precedent renders the insurance contract ineffective and relieves the insurer of its contract obligations. Starling v. Allstate Floridian Ins. Co., 956 So. 2d 511, 513 (Fla. Sth DCA 2007); Goldman v. State Farm Fire Gen. Ins. Co., 660 So. 2d 300, 303 (Fla. 4th DCA 1995). Progressive Express Ins. Co. v. Menendez, 979 So. 2d 324, 333 (Fla. 3d DCA 2008), quashed on other grounds, 35 So. 3d 873. 21. In addition, there is the failure to submit a sworn proof of loss for the loss sued upon. The document introduced by Plaintiff was not for the loss listed in the Complaint, but rather, for some other loss. Plus, the damages sought by Plaintiff in the lawsuit were not included, at all. Not to mention, it is uncontroverted that the document was deficient on its face, and thus a legal nullity, as both insureds did not sign it, as specifically required by the policy. This violation too precludes recovery. 22. Thus, Avatar is entitled to attorney fees. 23. Accordingly, the Motion is GRANTED. 24. The Court will determine the specific amount owed at a special hearing. 25. The parties are directed to cooperate in the coordination of that hearing, and, such should be set as soon as practical. DONE AND ORDERED, in Chambers, in Kissimmee, Osceola County, Florida this day of , 2017. Original Siened a4 0? MARGARET H, SCHREIBER Circuit ude. THE HONORABLE MARGARET H. SCHREIBER Circuit Court Judge S.Bad98 Conformed copies to: Curt Allen, Esquire 400 North Ashley Drive, Suite 2300 Tampa, Florida 33602 callen@butler.legal eservice@butler.legal Stephanie Feldman, Esquire Feldman Lawyers, P.A. 9990 Southwest 77th Avenue Miami, Florida 33156 service@thefeldmanlawyers.com Daniel L. Kaufman, Esquire 1580 Sawgrass Corporate Parkway, Suite 401 Sunrise, Florida 33323 Diklaw90@gmail.com mgarcia@asklaw.org Conformed and AUG 16 2947 WEeNoy B LAIR S.Bad99 IN THE COUNTY COURT OF THE SEVENTH JUDICIAL CIRCUIT IN AND FOR VOLUSIA COUNTY, FLORIDA THE KIDWELL GROUP LLC, CASE NO: 2015 12032 CODL d/b/a AIR QUALITY ASSESSOR DIVISION: 71 OF FLORIDA, a/a/o STEPHEN BLAIS, SMALL CLAIMS DIVISION Plaintiff, vs. STATE FARM FLORIDA INSURANCE COMPANY, Defendant. AMENDED FINAL JUDGMENT AWARDING ATTORNEY FEES AND COSTS (Amended as to Costs Only) THIS CAUSE came before the Court on June 21, 2016, upon the Defendant, State Farm Florida Insurance Company’s (“State Farm”), “Motion for Attorney Fees and Costs” [Docket # 81] and the Court having reviewed the motion, entertained the arguments of counsel, weighed the record evidence and being otherwise advised in the premises, hereby makes the following findings of fact and law: EXHIBIT S.B22x00 J Findings of Fact & Procedural History 1 On May 14, 2015, the Kidwell Group LLC d/b/a Air Quality Assessor of Florida (“AQA” or “Plaintiff”), relying on the same underlying facts as the instant case, sued State Farm for breach of contract in Orange County, Florida. 2 In the Orange County case, State Farm served AQA, but did not file with the Clerk, a motion for sanctions, pursuant to section 57.105, Florida Statutes, alleging the that the lawsuit filed against State Farm was not supported factually or legally. 3 AQA dismissed the Orange County action within the 21 days of being served with the motion for sanctions. 4 In accordance with section 57.105’s 21 day “safe harbor” provision, State Farm made no request for 57.105 attorney fees in the Orange County case. 5 Subsequent to the dismissal in Orange County, AQA hired a different law firm from the one that appeared in the Orange County case and by and through the new law firm, Hogan & Hogan, P.A., AQA filed a Statement of Claim against State Farm in the Small Claims Division of the Volusia County Court initiating the instant litigation on November 23, 2016. 6 The Statement of Claim, relying on the same underlying facts as the Orange County case, alleged in pertinent part that:' A Stephen Blais (“Blais”), a homeowner, purchased an insurance " Court Docket No.: 1. 2 S.Bne01 policy (“Policy”) from State Farm. Plaintiff is not in possession of the Policy, but will request a copy from the Defendant and file it with the court upon receipt. B On August 19, 2014, Blais’ home was damaged by a sudden and accidental water loss. The Policy covers water damage. Blais retained the services of AQA who performed mold and moisture assessment service necessary to mitigate the water damage to the home. Blais executed a post-loss assignment of benefits under the insurance policy to AQA. AQA submitted an invoice to State Farm in the amount of $800.00. State Farm issued one single payment in the amount of $367.44, purportedly to cover the whole cost of Water Damage Mitigation, inclusive of Plaintiff's mold assessment services. State Farm, by remitting payment in the amount of $367.44 has admitted coverage under the Policy for services rendered by AQA. State Farm breached the insurance contract by remitting payment for less than the actual cost of services necessary to mitigate damages. AQA and Blais have complied with all policy conditions precedent to the filing of the lawsuit. 7 On January 11, 2016, in response to the Statement of Claim, State Farm filed a Motion for Summary Judgment and pursuant to section 57.105; S.Ba2%02 3 Florida Statutes” served upon the Plaintiff a “Motion for Sanctions. 8 The Motion for Sanctions put the Plaintiff and its counsel on notice that if the Plaintiff failed to dismiss the pending action within 21 days of service of the Motion for Sanctions, then State Farm would seek the imposition of sanctions against the Plaintiff and Plaintiffs counsel to include an award of attorney’s fees and costs. 9 Generally, the Motion for Sanctions alleged that “there is no reasonable basis, in fact or law, to support the allegations set forth in the lawsuit” and that State Farm did not breach the subject policy in any respect. 10. Specifically, the Motion for Sanctions alleges, “the insured did not submit a sworn statement in proof of loss within the 60 days following the loss, as is specifically required by the policy.” 11. Notwithstanding the Motion for Sanctions, the Plaintiff, and its law firm, continued to litigate this action. 12. On January 14, 2016, pursuant to the Summons and Notice to Appear, counsel for each of the parties appeared for the Small Claims Pretrial Conference at which time State Farm denied the allegations set forth in the Statement of Claim and by agreement of the parties the rules of civil procedure were invoked. 13. On February 2, 2016, as a follow-up to the Motion for Sanctions, ? Pursuant to Fla. Sm. Cl. R. 7.090(C), written pretrial motions and defensive pleading are ermissive, but not required. p Court Docket No.: 27. 4 S.Bn303 State Farm sent the Plaintiff a six page letter* explaining in great detail why the lawsuit was without support, giving the Plaintiff, and its law firm, another opportunity to dismiss the action without penalty of sanctions and an adverse award of attorney fees or costs. 14, On February 2, 2016, two months after they served the Statement of Claim in this action, and nine months after commencing the litigation in Orange County, AQA, filed a response to State Farm’s Request for Admissions stating that “Plaintiff lacks sufficient knowledge” as to whether: ° A The Policy required the insured to provide State Farm with “immediate” notice of loss. The insured provided State Farm with an immediate notice of loss. The Policy required the insured to provide State Farm with a sworn statement in proof of loss within 60 days following the loss. The insured provided State Farm with a sworn statement in proof of loss within the 60 days following the loss. The policy required the satisfaction of all policy conditions as a condition precedent to any legal action. 15. On February 5, 2016, the Plaintiff filed with the Clerk a certified copy of the Policy at issue in this action.° 16. On February 10, 2016, the Plaintiff filed amended responses to 4 See Defendant’s Exhibit 6 entered into evidence at the hearing on June 21,2016. 5 Court Docket No.: 25. ® Court Docket No.: 28. 5 S.Ba2004 Defendant’s First Request for Admission establishing A The Policy required the insured to provide State Farm with immediate notice of loss. The Policy required the insured to provide a sworn statement in proof of loss within the 60 days following the loss Plaintiff still lacked sufficient knowledge to admit or deny whether a sworn statement in proof of loss was submitted. The Policy required the satisfaction of all policy conditions as a condition precedent to legal action against State Farm Plaintiff filed the subject claim “in good faith that all policy conditions were satisfied based on the information available. (Emphasis added). 17. On April 8, 2016, State Farm deposed the Plaintiffs designated corporate representative and during the deposition, the Plaintiff's designated corporate representative admitted that: A The allegations in the Complaint were unsupported. ° B The Plaintiff never had the policy, much less reviewed it,before twice suing State Farm for supposedly breaching that policy."® The claim specifically was excluded under no less than three, T Court Docket No.: 31 5 The Plaintiff objected to the court considering the testimony of the corporate representative on the basis that the deponent’s answers were in response to hypothetical questions and the questions posed by State Farms’ Counsel were not factually supported by the record. The Plaintiff's position on this point is not completely without merit, and while the court gave consideration to the objection, the court relied upon the overall record as set forth in this Judgment. It should also be noted that Plaintiff presented no evidence at the attorney fees hearing to counter the concessions of the corporate representative. ° Depo of Ron Sargent 178:6-7. '0 Depo of Ron Sargent 169:17-18; 170:16-19; 172: 20-21. 6 S.B2d05 different policy provisions.'! No proof of loss was ever submitted.’ State Farm had not breached the policy, and, no payment was owed to anyone, including Plaintiff. F State Farm had done nothing wrong.” 18. On April 8, 2016, the same day State Farm concluded the deposition of AQA’s Corporate Representative, AQA filed a Notice of Voluntary Dismissal with Prejudice in this action. 19. On April 11, 2016, State Farm filed its Motion for Attorney Fees and Costs. 20. At the hearing on June 21, 2016 on State Farm’s Motion, Attorney Jeremy Hogan of Hogan & Hogan, P.A., was called as a witness by State Farm. 21. In substance, Attorney Hogan testified to the following: A Neither Mr. Hogan nor his client had a copy of the insurance policy that was alleged to have been breached by State Farm prior to filing suit, during the time the suit was pending and still did not have a copy of the policy at the time of the attorneys fee hearing.’ 5 B Mr. Hogan at no time requested a copy of the policy and he was not aware of this client having requested a copy of the "| Depo of Ron Sargent 164:15-17; 174: 20-22; 177: 13-21. 2 Depo of Ron Sargent 172: 17-19; 173: 9-13. 3 Depo of Ron Sargent 184:18-23; 185:16-20. ‘4 The court notes with interest that the testimony of Mr. Hogan left the court with the impression that neither the Plaintiff nor its counsel had ever seen a copy of policy at issue in this case. However, as previously noted in this Judgment, Plaintiff filed a certified copy of the policy with clerk on February 5, 2016. 15 Hearing Transcript 62:15-17; 63:13-20; 66:1-4; 108: 5-9 & 24-25; 109: 1-3 7 S.Ba2206 policy.’® Mr. Hogan did not recall if he verified the allegations in the complaint, did not know if anyone verified the allegations in the complaint, did not know if the complaint was shown to the client and did not know whether AQA’s corporate representative was correct that no one at AQA had ever seen the complaint.” Mr. Hogan did not know what provision of the policy was breached,!* but assumed there was a breach on the basis that State Farm had not paid the full balance of AQA’s bill.” Although it was alleged in the Complaint that all conditions precedent to payment had been met, Mr. Hogan did not check to see what the conditions precedent were and did not know if they had been met.” Mr. Hogan acknowledged that generally if a water loss is not sudden then it is not a covered loss, but a sudden accidental water loss is a covered loss. In this case, Mr. Hogan did not know the basis for the claim that the water loss was sudden and accidental and stated that no one that he was aware of told him it was sudden and accidental, but he just assumed it was a covered loss because State Farm tendered a payment.”! Although Mr. Hogan was not sure if it was the law, he believed it to be correct that an insurance company could issue payment even if the loss was not covered under the policy.” 22. In opposition to the Motion for attorney fees, AQA called Richie '6 Hearing Transcript 62:11-18: 63:15-17; 99:7-9; 108:5-25 109:1-3. ‘7 Hearing Transcript 71:16-25; 72: 1-7. is Hearing Transcript 62:21-22; 64: 2-14 '9 Dage 64, Lines 10-14. 20 page 67, Lines 13-25 & Page 68, Lines 1-6. 21 page 74, Lines 11-25 & Page 75, Lines 1-14. 2 Page 76, Lines 10-21. 8 S.Ba2807 Kidwell, “the owner” of AQA and the Kidwell Group.” 23. Mr. Kidwell testified in substance that he did not personally handle any aspect of this claim “besides training those folks that are involved and setting 724 the atmosphere for our policies and procedures . . . 24, Notwithstanding Mr. Kidwell’s lack of personal knowledge, his testimony only served to confirm that AQA brought this action without regard for the truth and veracity of the facts upon which this action was based. As an example, even though AQA acknowledged that the loss would only be covered if the water loss was sudden and accidental, Mr. Kidwell stated that based on the reports prepared by AQA’s employee the water loss “could have been sudden, it 925 could not have been. Analysis Entitlement to §57.105 Fees 25. The basis for State Farm’s claim for attorney fees is section 57.105, Florida Statues which provides in pertinent part: (1) Upon... motion of any party, the court shall award a reasonable attorney’s fee, .. . to be paid .. . in equal amounts by the losing party and the losing party’s attorney on any claim... which the court finds that the losing party or the losing party’s attorney knew or should have known . . . when initially presented to the court or at any time before trial: ?3 The testimony of Mr. Kidwell was permitted subject to a standing objection by State Farm that the deposition of the records custodian and corporate representative had already been taken and AQA was therefore bound by that testimony. 24 Dage 166, Lines 1-5. 25 Page 142, Lines 15-17. 9 S.Ba2e08 (a) Was not supported by the material facts necessary to establish the claim or defense; or (b) Would not be supported by the application of then- existing law to those material facts. ... (4) A motion by a party seeking sanctions under this section must be served but may not be filed with or presented to the court unless, within 21 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected. 26. On April 11, 2016, State Farm timely filed its “Motion for Attorney Fees and Costs.” 27. The Motion for Attorney Fees & Costs was premised upon the Plaintiffs failure to dismiss this action within 21 days of being served with State Farm’s “Motion for Sanctions.” 28. There is no dispute that the Plaintiff was served with the Motion for Sanctions and Plaintiff continued to litigate this action well beyond 21 days after being served with the Motion. 29. The issue before this court then becomes whether State Farm has shown that AQA and Hogan & Hogan “knew or should have known” that the claim was (a) not supported by the facts or (b) not supported by an application of “then-existing” law.”° 26 The Florida Supreme Court in Boca Burger, Inc. v. Forum, 912 So.2d 561, 570 (Fla. 2005) opined on the proper application of section 57.105, Florida Statutes: [T]he statute no longer applies to only an entire action; it now applies to any claim or 10 S.Ba2d09 30. It is the Plaintiff's position that despite the conditions precedent set forth in the policy, it could in good faith bring suit because State Farm had accepted coverage by making a payment. In other words, the Plaintiff asserts there had to be a breach because State Farm had investigated the claim and tendered a payment. 31. The fallacy in this argument is that State Farm investigated the claim and tendered payment, subject to a reservation of rights, and the full protections of section 627.426(1), Florida Statutes.”” 32. In accordance with section 627.426(1), State Farm’s tender of defense. The standard for granting fees also has changed. Previously, a movant had to show “a complete absence of a justiciable issue of either law or fact raised by the losing party.” §57.105, Fla. Stat. (Supp. 1978). Under the revised version however, a movant need only show that the party and counsel “knew or should have known” that any claim or defense asserted was (a) not supported by the facts or (b) not supported by an application of “then-existing” law. §57.105. Fla. Stat. (2000). The amendments therefore greatly expanded the statute’s potential use.). 27 Section 627.426(1), Florida Statutes, provides: (1) Without limitation of any right or defense of an insurer otherwise, none of the following acts by or on behalf of an insurer shall be deemed to constitute a waiver of any provision of a policy or of any defense of the insurer thereunder: (a) Acknowledgment of the receipt of notice of loss or claim under the policy. (b) Furnishing forms for reporting a loss or claim, for giving information relative thereto, or for making proof of loss, or receiving or acknowledging receipt of any such forms or proofs completed or uncompleted. (c) Investigating any loss or claim under any policy or engaging in negotiations looking toward a possible settlement of any such loss or claim. See also, Rodrigo v. State Farm Florida Ins. Co., 144 So. 3d 690 (Fla. 4th DCA 2014); and, Exotic Furniture, Inc., v. Am. Cas. Co. of Reading, 173 So. 3d 894 (Fla. 2d DCA 2015). 11 S.Ba2e10 payment, jointly to the Plaintiff and a third party, did not waive any of the insured’s obligations under the policy, nor did it waive any defense otherwise available to State Farm. 33. Although not dispositive in and of itself, the Court’s analysis starts with the fact that at the time Plaintiff filed this breach of contract action, the Plaintiff did not have a copy of the contract, to wit: the policy that the Plaintiff alleged was breached by State Farm.”* 34. Despite not having a copy of the policy, the Plaintiff alleged in Paragraph Twenty-Three of the Complaint that “Plaintiff and the homeowner assignor have complied with all policy conditions precedent to filing this lawsuit.” 35. Notwithstanding this allegation, the Plaintiff in its response to the request for admissions admitted not knowing what the conditions precedent were and whether those conditions had been met. 36. Even more concerning was the testimony of Attorney Hogan wherein he stated he did not check to see what the conditions precedent were and he did not know if they had been met. 37. Specifically, the policy in question issued by State Farm requires the fulfillment of certain duties in the event of a loss” such as, the submission of a 28 This Court is mindful that Breach of Contract actions are often filed without the Plaintiff having a copy of the contract in their possession, but Plaintiff's insistence on continuing to litigate after being put on notice of the deficiencies in its case was at its own peril. 29 “Conditions in policies of insurance are part of the consideration for assuming the risk, and 12 S.Bo2el 1 sworn proof of loss within the 60 days following a loss. 38. Here, a sworn proof of loss was never submitted by anyone, much less within the mandated 60 days after the loss. 39. Further, AQA’s corporate representative acknowledged during his deposition that the claim was not a covered loss and at the time of the attorneys fee hearing, neither Mr. Hogan nor Mr. Kidwell could say whether the water damage resulted from a sudden and accidental discharge, while acknowledging that policy did not cover the claim unless it was a sudden and accidental discharge. 40. The court having considered the Plaintiffs response to State Farm’s Request for Admissions, the sworn testimony of the Plaintiff's designated corporate representative, and the testimony of one of the Plaintiff's lawyers, Jeremy Hogan, finds that at the time the Plaintiff commenced this action there was a complete lack of factual support for the lawsuit. 41. Accordingly, the Court finds that the lawsuit brought against State Farm was unsupported by fact or law, and that State Farm is entitled to recover its reasonable Attorney Fees. 42. Having determined that the action filed by the Plaintiff was not supported in fact or law, Section 57.105, Florida Statues provides that the Court shall apportion the attorney fees between the Plaintiff & Counsel unless: the insured, by accepting the policy, becomes bound by these conditions.” Goldman v. State Farm Fire Gen. Ins. Co., 660 So. 2d 300, 304 (Fla. 4th DCA 1995). 13 S.Barel2 (3) Notwithstanding subsections (1) and (2), monetary sanctions may not be awarded: (a) Under paragraph (1)(b) if the court determines that the claim or defense was initially presented to the court as a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law, as it applied to the material facts, with a reasonable expectation of success. (b) Under paragraph (1)(a) or paragraph (1)(b) against the losing party’s attorney if he or she has acted in good faith, based on the representations of his or her client as to the existence of those material facts. (c) Under paragraph (1)(b) against a represented party. 43, The court having considered the requirements of section 57.105(3) further finds that the Plaintiff and its attorneys equally demonstrated a complete lack of concern for the accuracy of the facts as set forth in the Statement of Claim and accordingly the attorney fees awarded pursuant to this Judgment shall be paid in equal amounts by the Plaintiff and the Plaintiff's attorneys. 44. As aresult of the dismissal, the Court also finds that State Farm is the prevailing party and entitled to an award of costs under section 57.041, Florida Statutes, and, Florida Rule of Civil Procedure 1.420(c).° Analysis as to Amount of Attorney Fees & Costs 45. As to the amount of Attorney Fees, State Farm called three witnesses 39 See, e.g., Tubbs v. Mechanik Nuccio Hearne & Wester, P.A., 125 So. 3d 1034, 1040 (Fla. 2d DCA 2013) (“In most instances, ‘when a plaintiff voluntarily dismisses an action, the defendant is the prevailing party.’ Thornber v. City of Fort Walton Beach, 568 So. 2d 914, 919 (Fla. 1990).”). 14 S.Bo2013 and introduced numerous exhibits. Plaintiff and its law firm called no witnesses, and introduced no exhibits. Therefore, the testimony and evidence presented by State Farm was unrefuted. 46. Specifically, at the hearing on the Motion for attorney fees, State Farm presented the expert testimony of Attorney Janet Brown. 47. Ms. Brown testified that she had reviewed the files and invoices of State Farm’s counsel as to the reasonableness and necessity of those charges or fees. 48. Ms. Brown further testified that in her opinion, the hourly rates charged by each of the attorneys and the paralegal who worked on this case were reasonable. Additionally, Ms. Brown testified that the scope of the services rendered was reasonable and necessary in defense of the action filed by AQA and having reviewed each of the invoices, she did not find anything that should be reduced or eliminated. 49. The Plaintiff presented no testimony in opposition to the opinion expressed by Ms. Brown, however, the Plaintiff did raise questions related to the compensability of travel time, block billing, duplicative entries, the time from which attorney fees should be awarded, and the number of attorneys working on the case and the overall amount sought for a one count breach of contract action. 50. Although the general proposition is that travel time is not 15 S.Boo%l4 compensable, there are exceptions to the rule. 51. The courts have held that attorney travel time may be included in an attorney fee award a