The Third District Court of Appeal. Photo: J. Albert Diaz/ALM

One Miami lawyer is out of luck when it comes to getting his attorney fees paid by an insurer in a breach-of-contract case.

Daniel L. Monfiston, partner and founder at the Monfiston Firm, found himself on the losing side of an appellate decision with client Rafael Velez.

The Third District Court of Appeal ruled in favor of Velez's insurer, United Services Automobile Association, on cross-motions for summary judgment after finding the company did not breach its contract with Velez. Court records show Velez conceded that United Services had complied with the policy in paying his claim.

The Third DCA reversed and remanded a lower court ruling, finding that the Miami-Dade Circuit Court made a mistake when it had ruled in Velez's favor. On appeal, Velez seemed to focus on recouping fees, instead of on other issues before the court. His answer brief was "devoted to arguments in support of his contention that he is entitled to attorney's fees," according to the Third DCA, which did not consider the issue. The appellate court cited a lack of jurisdiction and found the appeal premature because the amount had yet to be determined.

In the underlying dispute, Velez filed a claim for water damage in April 2015 at his Homestead house. An assessment by United Services provided the scope and cost repairs. Before paying nearly $21,000 on a damage estimate the following month, United Services repeatedly reached out to Velez's designated loss consultant to work out the scope of repairs for the home, the appellate opinion said. Velez had also initially named and served the wrong "USAA entity," before correcting the error. United Services was served in August 2015.

The case appeared hard-fought.

United Services filed a motion for sanctions pursuant to Florida Statute Section 57.105 in response to what it deemed frivolous filing of claims by Velez. It alleged he had not complied with his contractual obligation to participate in the appraisal process. The day before the hearing, Velez's counsel agreed to submit to appraisal, abate the action and cancel the hearing.

But then the litigation took another twist, that led United Services to file a motion for a protective order and for stay of Velez's discovery requests because of the pending motion to compel appraisal.

Miami-Dade Circuit Judge John W. Thornton Jr. entered an agreed order compelling appraisal. An appraisal panel awarded Velez nearly $7,000, which United Services paid. The award compromised actual cash value and replacement cost value, bringing Velez's reimbursement for amount of loss at over $28,000.

"Ultimately, my client was able to secure an excess award,"  Monfiston said. "The work that went into securing that excess award, not only the amount from the appraisal," needs to also be considered.

Read the full Third DCA opinion:

United Services persistently sought Velez's counsel's time records and invoices but had no luck. Velez did not argue that United Services breached the insurance contract nor did he present any new evidence in opposition to summary judgment. Rather, Velez devoted "the entirety of his argument to a discussion about his entitlement to attorney's fees," the Third DCA opinion stated.

On appeal, United Services says the Miami-Dade Circuit Court made a mistake in not granting its motion for summary judgment. The Third DCA agreed, stating once United Services met its burden of proving its case, it was now Velez who had to prove relevant additional evidence.

"Velez was required to come forward with admissible counter-evidence sufficient to reveal a genuine issue of material fact; he failed to do so," the Third DCA found.

Monfiston, Velez's attorney, said he plans to file a motion for rehearing.