12 Fla. L. Weekly Supp. 918a
Insurance — Personal injury protection — Appeals — Dismissal — Fraud on court — Sanctions — Where insurer deliberately made reference in appeal to evidence that was not before trial court in summary judgment decision to gain unfair advantage, appellate court withdraws its prior reversal of trial court’s attorney’s fees order — Appellate fees awarded to provider — Appeal dismissed with prejudice
UNITED AUTOMOBILE INSURANCE CO., Appellant, vs. REGINALD A. BOTTARI, D.C., P.A., a/a/o MARIA E. CABRERA, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case Nos. 04-121 AP and 04-295 AP. T.C. Case No. 03-5908 SP 25. July 6, 2005.
(Before ARTHUR L. ROTHENBERG, ELLEN L. LEESFIELD, and MAYNARD A. GROSS, JJ.)
ORDER[Original Opinion at 12 Fla. L. Weekly Supp. 632b]
Appellee’s Motion for Rehearing and\or Clarification and Motion to Dismiss Appeal for Appellant’s Fraud upon this Court is hereby GRANTED. This Court’s opinion in the above styled case, filed April 7, 2005, is withdrawn.
Theappellant\defendant did not appeal the trial court’s Order Deniying [sic] Defendant’s Motion for Rehearing, it appealed the Final Summary Judgement [sic]. Appellant\defendant indicated that the nature of the order it was appealing was “an order on plaintiff’s motion for summary judgment[,]” and attached the trial court’s Final Summary Judgement [sic] to the notice of appeal. Thus, this appeal is properly confined to only the Final Summary Judgement [sic] and its attendant evidence (see Seaboard Air Line R.R. Co. v. Holt, 80 So. 2d 354, 358 (Fla. 1955); Fla. R. App. P. 9.110(d)).
The trial court’s Final Summary Judgement [sic] was entered correctly; the record supports this conclusion. Appellant\defendant’s first two conclusory affidavits by Ms. Chase did not raise genuine issues of material fact to prevent entry of summary judgment on behalf of appellee\plaintiff. The third affidavit of Ms. Chase did raise genuine issues of material fact; however this affidavit was before the trial court for its determination of appellant\defendant’s Motion for Rehearing, not its decision regarding appellee\Plaintiff’s Motion for Summary Judgment.
Appellant\defendant did not address medically necessary and reasonable treatments in its appeal, consequently it waived the issue.
This Court holds that the fraud perpetrated upon it by appellant\defendant warrants dismissal of its appeal with prejudice. We have decided that appellant\defendant deliberately made reference in this appeal to evidence that was not before the trial court in the summary judgment decision to gain an unfair advantage. See p. 2, second paragraph, Initial Brief of Appellant; see also Andrews v. Palmas de Majorca Condominium, 898 So. 2d 1066, 1069-70 (Fla. 5th DCA 2005) (dismissal of an appeal is a strict sanction, however it is allowed when a party’s actions make it evident that the activity was done to unfairly hamper another party’s claim or defense). Correspondingly, this Court’s reversal of the trial court’s attorney’s fee order is withdrawn.
The dismissal with prejudice of this consolidated appeal obviates the need of this Court to address appellee\plaintiff’s presentation (or lack thereof) to the trial court of competent, substantial evidence which demonstrated how it determined its medical fees for services rendered.
Appellee’s Motion for Appellate Attorneys Fees is granted under the authority of § 627.428, Fla. Stat. (2001). See Arango v. United Auto. Ins. Co., [30 Fla. L. Weekly D1129a] 2005 WL 1026565 (Fla. 3d DCA 2005).
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