Advanced Chiropractic & Rehab. Ctr., Corp. v. United Auto. Ins. Co., 4D11–4801.

• Decision Date: 12 September 2012
• Docket Number: No. 4D11–4801.,4D11–4801.
• Citation: 103 So.3d 866
• Parties: ADVANCED CHIROPRACTIC AND REHABILITATION CENTER, CORPORATION, d/b/a Advanced Chiropractic and Rehabilitation Center a/a/o Americo Galindo, Petitioner, v. UNITED AUTOMOBILE INSURANCE COMPANY, Respondent.
• Court: Florida District Court of Appeals

103 So.3d 866

ADVANCED CHIROPRACTIC AND REHABILITATION CENTER, CORPORATION, d/b/a Advanced Chiropractic and Rehabilitation Center a/a/o Americo Galindo, Petitioner,
v.
UNITED AUTOMOBILE INSURANCE COMPANY, Respondent.

No. 4D11–4801.

District Court of Appeal of Florida,
Fourth District.

Sept. 12, 2012.

[103 So.3d 867]

Jennifer S. Carroll of Law Offices of Jennifer S. Carroll, P.A., Palm Beach Gardens, for petitioner.

[103 So.3d 868]

Michael J. Neimand, Office of General Counsel, United Automobile Insurance Company, Trial Division, Miami, for respondent.

GROSS, J.

Advanced Chiropractic and Rehabilitation Center Corporation has filed a second-tier petition for writ of certiorari directed at a decision of the appellate division of the circuit court. The circuit court reversed county court final orders on an issue that was neither preserved in the county court nor raised in the appellant's brief on appeal. Because this amounts to a denial of due process, we grant the writ, quash the appellate decision of the circuit court, and remand for reinstatement of the county court orders.

In the county court action, Advanced sued respondent United Automobile Insurance Company for PIP benefits. The case settled for $4,128 and $1,980 in prejudgment interest. When Advanced moved for attorney's fees, a dispute arose over whether Advanced knew about an order of dismissal. Advanced filed a motion under Florida Rule of Civil Procedure 1.540(b) to vacate the order of dismissal, supported by affidavits. The court held a hearing. Advanced's lawyer told the court what happened. An employee of the clerk's office described the state of the court file and the practice of the clerk's office regarding address changes. Neither witness was sworn. The matters discussed by the witnesses were not disputed by the parties at the hearing. Advanced offered the affidavit of a legal assistant. The county court judge examined the court file. United raised no evidentiary objections; United raised no objection to the informal way that the county court conducted the hearing. The county court granted the rule 1.540(b) motion, vacated the order of dismissal, and, later, awarded Advanced attorney's fees and costs.

United appealed to the circuit court. In its brief, United argued two errors—that the county court abused its discretion in finding (1) that the motion for attorney's fees was timely and (2) excusable neglect sufficient to support rule 1.540(b) relief.

The one-judge appellate panel of the circuit court reversed the county court order on grounds different from those raised by United in its brief. The court explained that the lawyer and the clerk's employee had not been placed under oath at the...