Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT SYNERGY CONTRACTING GROUP, INC. a/a/o TERRY and PATRICIA CLARK, Appellant, v. FEDNAT INSURANCE COMPANY f/k/a FEDERATED NATIONAL INSURANCE COMPANY, Appellee. No. 2D21-149 August 3, 2022 Appeal from the County Court for Pinellas County; John Carassas, Judge. Andrew Graf, Celebration, for Appellant. Lara E. Breslow and David T. Burr of Galloway, Johnson, Tompkins, Burr & Smith, PLC, Tampa, for Appellee. MORRIS, Chief Judge. Synergy Contracting Group, Inc. (Synergy), as assignee of rights under Terry and Patricia Clark's homeowner's insurance policy, appeals a final summary judgment entered in favor of Fednat Insurance Company (Fednat) in Synergy's breach of contract action against Fednat. Pursuant to our recent holding in Synergy Contracting Group, Inc. v. Fednat Insurance Co. (Synergy I), 332 So. 3d 62 (Fla. 2d DCA 2021), we reverse. I. Background In November 2016, Terry and Patricia Clark sustained water damage to their home. They hired Synergy to perform remediation and restoration services, and they assigned to Synergy the benefits under their homeowner's insurance policy with Fednat. After Fednat refused payment of the full amount requested by Synergy, Synergy filed a breach of contract action against Fednat on April 10, 2018. Fednat filed an answer and affirmative defenses. Fednat filed a motion to compel appraisal on May 31, 2018, seeking to invoke the policy's appraisal provision and to stay litigation. Fednat acknowledged that it accepted coverage for the damages and that it had paid a portion of the damages claimed by Synergy, but Fednat disputed the remaining amount claimed by Synergy. The county court granted Fednat's motion, and on January 18, 2019, the appraisal panel entered an appraisal award 2 in the amount of $35,000. Fednat then issued payment to Synergy in the amount of $7597.06, which constituted the remaining unpaid amount of the appraisal award after accounting for the amount already paid to Synergy and the policy's deductible. On March 26, 2019, Synergy filed its motion for attorney's fees and costs, claiming entitlement under sections 627.428, 627.736(8), 57.041, and 92.231(2), Florida Statutes (2018). Synergy argued that the payment of the appraisal award after suit was filed constituted a confession of judgment by Fednat and that Synergy was therefore entitled to fees under section 627.428. The next day, Fednat filed a motion for final summary judgment, arguing that because Fednat paid the amount determined by the appraisal panel, final summary judgment should be granted in its favor on Synergy's breach of contract action. At a hearing, Fednat sought an order recognizing that there was no dispute on the amount of money owed under the policy and that no further judicial labor was required. Synergy objected to an order granting anything in Fednat's favor and argued that the granting of summary judgment in favor of Fednat defeated Synergy's claim for entitlement to fees. Synergy argued that its position that Fednat 3 confessed judgment is relevant to and part of the breach of contract claim. After the hearing, the county court entered an order granting Fednat's motion on July 9, 2019, finding that Fednat "paid the appraisal award in full and within the time limit required by the policy" and concluding that Synergy "is entitled to no further benefits under the policy." The court "reserve[d] jurisdiction on the parties' entitlement to attorney fees and costs and the amount to be awarded, if any." Six months later, Fednat filed a motion for entry of final summary judgment, seeking a final judgment in its favor because there were "no more justiciable issues." Synergy filed a cross- motion for summary judgment, seeking a judgment in its favor based on Fednat's failure to plead and prove a "rush to the courthouse" defense to Synergy's confession of judgment claim. Synergy also filed a response to Fednat's motion. At a second hearing, Fednat asked for a final judgment as a procedural necessity so as to end the judicial labor and trigger the deadlines for the postjudgment issues of fees and costs. Again, Synergy objected and cited cases reversing summary judgments in 4 favor of insureds in similar circumstances where the fee issue was still outstanding. At the conclusion of the hearing, the county court announced that it would enter final summary judgment. On October 1, 2020, final summary judgment was entered in favor of Fednat, ordering that Synergy "shall take nothing by this action" and "reserv[ing] jurisdiction on attorney fees and costs." Synergy now appeals. II. Analysis On appeal, Synergy contends that the county court erred in granting summary judgment in favor of Fednat after Fednat paid the appraisal amount. Synergy argues that the issue of attorney's fees, which includes the issue of confession of judgment by Fednat, should have been resolved prior to the county court granting judgment in favor of either party. Synergy further contends that judgment should have been granted in its favor because no facts remained disputed and the payment by Fednat amounted to a confession of judgment. During the briefing in this case, this court decided Synergy I, 332 So. 3d 62, which is factually and procedurally on point with the 5 instant case.1 In Synergy I, this court decided the following question of law: whether the insurer was "entitled to a judgment in its favor after it paid the postlawsuit appraisal award." Id. at 65. This court agreed with the analysis in Astorquiza v. Covington Specialty Insurance Co., 8:19-CV-226T-60CPT, 2020 WL 6321868 (M.D. Fla. Oct. 28, 2020), which was decided on "virtually indistinguishable" facts and which held that attorney's fees are not ancillary to the underlying substantive claim where the insured is forced to sue to enforce the insurance contract; rather, section 628.428 is incorporated into every insurance contract and requires the fee award to be included in the judgment. Synergy I, 332 So. 3d at 65–66 (quoting Astorquiza, 2020 WL 6321868 at *3).2 This court further agreed with Astorquiza's holding that a summary judgment for the insurer "would additionally be inconsistent with the concept underlying the confession of judgment rule—that the insurer by Synergy I involves the same parties in this case but different 1 homeowners. 2 In this appeal, Synergy relied on Astorquiza in its initial brief, filed in June 2021. Synergy I, 332 So. 3d 62, was not decided until December 2021, and Synergy relied on it in its reply brief filed in January 2022. 6 payment of the claim has effectively abandoned the defense of the insured's lawsuit and conceded that its prior withholding of payment had been incorrect." 332 So. 3d at 66 (quoting Astorquiza, 2020 WL 6321868 at *4). Synergy I expanded on Astorquiza's analysis. We rejected the insurer's claim that the breach of contract action was rendered moot by payment of a postlawsuit appraisal award, finding that that argument was "fatally inconsistent with the judgment" and that a dismissal, rather than a judgment in the insurer's favor, would have been the appropriate disposition if the case had been rendered moot. 332 So. 3d at 66. Last, this court held that the payment did not render the case moot and that the payment did not wipe away the insurer's prior denial of the claim. We recognized that the insurer may have a defense to the plaintiff's claim for attorneys' fees, such as a "race to the courthouse defense," but held that judgment in favor of the insurer was not proper. See id. at 67 n.3 ("Our holding today is limited to the impropriety of entering a final judgment in [the insurer's favor] on the facts of this case. We leave it to the county court on remand to address any fee and cost entitlement issues either party may bring before it."). This court 7 reversed the final judgment in the insurer's favor and remanded for further proceedings. Id. at 67. For the reasons explained in Synergy I, 332 So. 3d 62, the county court erred in entering judgment in favor of Fednat. Accordingly, we reverse the final summary judgment and remand for further proceedings on Synergy's claim for attorney's fees and costs. Reversed and remanded. VILLANTI and SMITH, JJ., Concur. Opinion subject to revision prior to official publication. 8