10 Fla. L. Weekly Supp. 572a
Insurance — Personal injury protection — Attorney’s fees — Insured’s challenge to order awarding attorney’s fees to insurer — Trial court need not set forth written findings as to criteria used to determine reasonableness of fee — Further, appellate court cannot find that criteria were not considered since appellate record does not contain transcript or proper substitute — Although decision on merits in favor of insurer has been overturned by subsequent appellate decisions, trial judge had no discretion but to award fees to insurer
CHRISTINE M. DUNN, Appellant, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee. Circuit Court, 6th Judicial Circuit (Appellate) in and for Pinellas County. Case No. 02-3423-CI-88A. UCN 522002CA003423XXCICI. June 10, 2003. John A. Schaefer, Judge. Appeal from final Order, Pinellas County Court, County Judge Henry J. Andringa. Counsel: William K. Saron, St. Petersburg, for Appellant. Anthony J. Parrino, St. Petersburg, for Appellee.
[Prior order at 8 Fla. L. Weekly Supp. 132a.]
ORDER AND OPINION
THIS CAUSE came before the Court on appeal, filed by Christine Dunn, from the Order granting attorney’s fees and costs to State Farm Mutual Automobile Insurance Company (State Farm), entered March 22, 2002. Upon review of the briefs, the record and being otherwise fully advised, the Court affirms the trial court’s ruling as set forth below.
This is the parties’ second appeal before this Court from the same underlying cause of action. These proceedings began when Ms. Dunn filed a complaint, on October 7, 1998, against State Farm to recover personal injury protection benefits. The trial court entered Summary Judgment in favor of State Farm and also awarded attorney’s fees and costs to State Farm, pursuant to Florida Statute § 768.79, as Ms. Dunn had rejected State Farm’s proposal of settlement. Those orders were affirmed by this Court, sitting in its appellate capacity, in its Order and Opinion, entered October 27, 2000. See Dunn v. State Farm Mutual Automobile Insurance Company, 8 Fla. L. Weekly Supp. 132a (Fla. 6th Cir. Ct. App. Div. Oct. 27, 2000).
In affirming the trial court, this Court concluded that Ms. Dunn had not suffered damages from State Farm’s reduced payments to Ms. Dunn’s medical provider so, therefore, was unable to maintain a breach of contract cause of action against State Farm. Ms. Dunn appealed the Order and Opinion to the Second District Court of Appeal. On April 19, 2001, the Second District denied Ms. Dunn’s petition for writ of certiorari and also granted State Farm’s motion for attorney’s fees and costs. See Dunn v. State Farm Mutual Automobile Insurance Company, No. 2D00-4824 (Fla. 2d DCA April 19, 2001). Thereafter, State Farm filed its Motion to Tax Attorney’s Fees and Costs, which was granted by the trial court and led to the present appeal.
Ms. Dunn asserts that the trial court erred in awarding State Farm fees and costs totaling $6,089.75, approximately 90% of what State Farm requested, as the Order does not state whether the factors set forth in Florida Statutes § 768.79(7)(b) were considered or applied. Ms. Dunn also argues that the trial court abused its discretion in failing to award a reduced fee under the circumstances of this case.
Initially, this Court finds that the trial judge need not set forth written findings as to the criteria used in determining the reasonableness of an award of attorney’s fees under section 768.79(7)(b). See Fla. Stat. § 768.79(7)(b) (enumerating six factors that the court shall consider when determining the reasonableness of an award of attorney’s fees pursuant to that section). Moreover, it is impossible for this Court to find that the trial court did not consider the statutory factors since the appellate record is void of a transcript or proper substitute of the fee hearing below. The “[a]ppellant’s failure to provide either a transcript or proper substitute, such as a stipulated statement of the facts, defeats the appellate court’s ability to review either the factual or legal basis for the trial court’s decision.” See Klette v. Klette, 785 So.2d 562, 563 (Fla. 1st DCA 2001) (quoting Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1980)) (stating that the decision of the trial court comes to an appellate court clothed in a presumption of correctness and the burden is on the appellant to demonstrate reversible error).
This Court recognizes that the holding set forth in its first Order and Opinion has been squarely overturned by subsequent appellate court decisions. See Allstate Insurance Company v. Kaklamanos, 843 So.2d 885 (Fla. 2003), aff’d, Kaklamanos v. Allstate Ins. Co., 796 So.2d 555 (Fla. 1st DCA 2001) (agreeing with the First District Court of Appeal that “[a]n insured who incurs reasonable and necessary medical expenses on account of an automobile accident sustains losses and incurs liability for PIP and medpay benefits, whether or not the medical benefits have been paid”). However, that has no bearing at this point on whether the trial court abused its discretion in awarding attorney’s fees and costs in this case. Indeed, Ms. Dunn states that the trial judge was made aware of the Kaklamanos decision during the fee hearing and also concedes that the trial judge had no discretion but to award fees. As provided above, without a transcript of the hearing, Ms. Dunn is unable to overcome the presumption of correctness of the trial court’s Order. See Klette, 785 So.2d at 563; see also DiStefano Construction, Inc. v. Fidelity and Deposit Company of Maryland, 597 So.2d 248, 250 (Fla. 1992) (holding that an award of attorney fees is a matter committed to sound judicial discretion which will not be disturbed on appeal absent showing of a clear abuse of discretion).
Therefore, it is,
ORDERED AND ADJUDGED the Order awarding attorney’s fees and costs to State Farm is affirmed. It is further
ORDERED AND ADJUDGED that the Appellee’s Motion for Attorney’s Fees is granted. The trial court shall determine the amount of these fees.
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