11 Fla. L. Weekly Supp. 79b

Insurance — Personal injury protection — Attorney’s fees — Offer of judgment — Award of reasonable fees and costs to prevailing insurer was mandatory once entitlement was established under offer of judgment statute — Insureds were unable to show that trial court abused its discretion in awarding fees or failed to consider statutory factors in determining reasonableness of fee award since there was no transcript and no requirement that trial court set forth written findings as to criteria used in determining reasonableness of award

LYNN GRIFFITH, KIMBERLY GRIFFITH, and BRADLEY GRIFFITH, by and through his next friend, natural guardian, and father, KIMBERLY GRIFFITH, Appellants, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee. Circuit Court, 6th Judicial Circuit (Appellate) in and for Pinellas County. Case No. 02-6574CI-88B. UCN522002CA006574XXCICI. December 5, 2003. David A. Demers, Judge. Appeal from Order Awarding Attorney’s Fees and Costs, County Court, Small Claims Division, Pinellas County, The Honorable Karl B. Grube. Counsel: Joseph M. Ciarciaglino, for Appellants. Sonya S. Hammac, Ramey Ramey & Kampf, Tampa, for Appellee.

ORDER AND OPINION

THIS CAUSE came before the Court on appeal, filed by Lyn Griffith, Kimberly Griffith and Bradley Griffith, by and through his next friend, natural guardian, and father, Kimberly Griffith (Griffith), from the Order on Plaintiff’s Motion for Rehearing and Order Denying Motion for Relief from Order Awarding Attorney’s Fees and Costs,¹ entered in favor of the Appellee, State Farm Mutual Automobile Insurance Company (State Farm). These Orders awarded State Farm attorney’s fees and costs for the trial court action and for the first appeal to this Court, in which State Farm was the prevailing party. Upon review of the record and the briefs and being otherwise fully advised in the premises, the Orders entered by the trial court are affirmed.

This is the parties’ second appeal before this Court from the same underlying cause of action. These proceedings began when Griffith filed a complaint, on September 3, 1999, against State Farm to recover personal injury protection benefits. The trial court entered Summary Judgment in favor of State Farm, which Griffith appealed. The trial court’s ruling was affirmed by this Court, sitting in its appellate capacity, in its Order and Opinion, entered January 31, 2001, which also awarded reasonable attorney’s fees and costs to State Farm. See Griffith v. State Farm Mutual Automobile Insurance Company, Case No. 00-4430 (Fla. 6th Cir. Ct. App. Div. January 31, 2001) [8 Fla. L. Weekly Supp. 411b].

In affirming the trial court, this Court concluded that Griffith had not suffered damages from State Farm’s denial to pay several charges submitted by the Griffiths’ medical providers so, therefore, was unable to maintain a breach of contract cause of action against State Farm. Griffith filed a petition for writ of certiorari to the Second District Court of Appeal, which was denied on September 11, 2001. See Griffith v. State Farm Mutual Automobile Insurance Company, 806 So.2d 474 (Fla. 2d DCA 2001). Thereafter, State Farm filed its Motion for Entitlement to Attorney’s Fees and Costs, which was granted by the trial court and led to the present appeal.

Griffith asserts that the trial court abused its discretion and erred in awarding State Farm fees and costs totaling $11,995.69.² Initially, the Court finds that, as the prevailing party, the award of reasonable attorney’s fees and costs to State Farm is mandatory. See Fla. Stat. § 768.79(a); see also Jordan v. Food Lion, Inc., 670 So.2d 138, 140 (Fla. 1st DCA 1996) (stating that the offer of judgment statute creates a mandatory right to attorney’s fees when the statutory prerequisites have been fulfilled); Motter Roofing, Inc. v. Leibowitz, 833 So.2d 788, 789 (Fla. 3d DCA 2002) (holding that Section 768.79 also applies to fees incurred on appeal). Further, once entitlement is established under the offer of judgment statute, the burden is on the offeree to prove the absence of good faith for purposes of disallowing costs and fees. See Camejo v. Smith, 774 So.2d 28, 29 (Fla. 2d DCA 2000).

The Griffiths are unable to show that the trial court abused its discretion in awarding attorney’s fees and costs, particularly since the appellate record is void of a transcript or proper substitute of the fee hearings below. Florida case law clearly provides that an “[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).

Additionally, there is no requirement that the trial court 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, as stated above, it is impossible for the Court to find that the trial court did not consider the statutory factors since there is no transcript.

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), affirming, 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”). Indeed, the record provides that the trial judge did specifically consider those factors in ruling on Griffith’s Motion for Relief and Motion for Rehearing.

However, the Kaklamanos decision has no bearing at this point on whether the trial court abused its discretion in awarding attorney’s fees and costs in this case. Accordingly, Griffith is unable to overcome the presumption of correctness of the trial court’s award of attorney’s fees and costs, which included fees for paralegal services and an expert witness. 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); Dunn v. State Farm Mutual Automobile Insurance Company, Case No. 02-3423CI-88A (Fla. 6th Cir. Ct. App. Div. June 10, 2003) [10 Fla. L. Weekly Supp. 572a] (affirming the trial court’s award of fees and costs under similar circumstances). Lastly, the Court notes that the multiple issues raised by Griffith on appeal are not joint and severable; the claims are intertwined such that affirmance of any one order necessitates the affirmance of the others.

Therefore, it is,

ORDERED AND ADJUDGED that the Order on Plaintiff’s Motion for Rehearing and Order Denying Motion for Relief from Order Awarding Fees and Costs are hereby affirmed. It is further

ORDERED AND ADJUDGED that the Appellee’s Motion for Appellate Attorneys’ Fees Pursuant to F.S. § 57.105 is hereby denied.

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¹The appeal of these Orders, both entered July 15, 2002, upon the Griffiths’ timely Motion for Rehearing and Motion for Relief, et al., brings the other related orders before this Court for review, including: Order Granting Entitlement to Attorney’s Fees at Trial Court Level, entered December 21, 2001; Order Granting State Farm’s Motion to Tax Fees and Costs, entered January 16, 2002; and, Order Awarding Attorney’s Fees and Costs, entered May 3, 2002.

²The trial court did not award fees and costs of the subsequent petition to the Second District Court of Appeal.

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