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Krock v. Rozinsky

Florida Court of Appeal, Fourth District

January 11, 2012

Diane KROCK, Appellant,
v.
Irwin ROZINSKY and State Farm Mutual Automobile Insurance Company, Appellees.

Rehearing Denied Feb. 17, 2012.

Page 39

[Copyrighted Material Omitted]

Page 40

Diane Krock, Reddick, pro se.

Nancy W. Gregoire of Kirschbaum, Birnbaum, Lippman & Gregoire, PLLC, and Patrick Shawn Spellacy of Kirwan & Spellacy, P.A., Fort Lauderdale, for appellee State Farm Mutual Automobile Insurance Company.

WARNER, J.

Appellant, Diane Krock, appeals a final judgment awarding attorney's fees and costs to State Farm Mutual Automobile Insurance Company in the amount of $163,415.79 pursuant to an offer of settlement. Krock challenges the trial court's denial of her request for a continuance of the fee hearing. Finding no abuse of the court's discretion, we affirm.

This case began in 2002 when Krock filed a negligence action against another driver for personal injuries Krock suffered in an automobile accident in 1999. Krock later filed an amended complaint in which she asserted a claim for underinsured motorist benefits against State Farm. State Farm denied liability and served a proposal for settlement which Krock did not accept. At trial, she recovered less than the proposal. She appealed the resulting judgment, which this court per curiam affirmed on appeal. See Krock v. Kahan, 989 So.2d 649 (Fla. 4th DCA 2008). In connection with the appeal of that final judgment, this court conditionally granted State Farm's motion for appellate fees to be set by the trial court. Shortly after the conclusion of the appeal, Krock's attorney withdrew from her representation. After the underlying final judgment was affirmed on appeal, State Farm filed an Amended Motion to Tax Attorney's Fees and Costs pursuant to section 768.79, Florida Statutes, and also filed a motion for the trial court to award appellate fees and costs. Those motions were filed in 2008 and set for hearing first in December 2008, which hearing was continued at Krock's request, and again in February 2009. Prior to that hearing, Krock requested a six-month continuance based on various health problems. The trial court granted the motion.

About six months after Krock's previous request for a continuance had been granted, State Farm re-noticed its fee motions for hearing on October 9, 2009. On October 5, 2009, Krock sent a letter to the judge. Attached to Krock's letter was a doctor's note, which stated that she was 100% disabled, that she had multiple medical and psychological problems, that she was in no condition to travel, and that she would never be able to drive again. This same letter and request for continuance was faxed to the judge the day before the hearing.

The trial court denied Krock's request for an extension of time and went forward with the hearing on State Farm's fee motions. In the order denying Krock's motion for an extension of time, the trial court explained in detail its reasoning for denying the request:

This action came before the Court upon receipt of a letter that appears to be ex parte, in other words there is no certificate of service. Therefore a copy of the letter is attached to this order.
Plaintiff Mrs. Krock requests an extension of time based on a medical note from her doctor that in essence said that she will never be able to drive again and she is in no condition to travel. This is not the first time that this matter has been extended for Mrs. Krock's benefit

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so that she can attend a hearing. This case was tried before a jury and a verdict [was] rendered on September 15, 2006 and an amended final judgment was entered on September 15, 2006 and an amended final judgment was entered on March 20, 2007. The defense has been waiting for its hearing in order to have its fees and costs taxed. Mrs. Krock's medical condition apparently has never allowed her to appear. There appears to be no likelihood that Mrs. Krock will ever appear. Therefore to have extended the last hearing would have been ...

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