15 Fla. L. Weekly Supp. 779b
Insurance — Personal injury protection — Summary judgment — Opposing affidavit — Notarization — Trial court was correct in finding that initial affidavit filed by doctor who performed independent medical examination was legally insufficient for failing to indicate whether doctor was personally known or had produced identification to notary — Trial court erred by not permitting insurer to cure this technical defect — Trial court should have considered corrected affidavit attached to timely motion for rehearing
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. HIALEAH MEDICAL ASSOCIATES, INC., a/a/o OSMANY SANCHEZ, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case Nos. 07-147 AP & 07-260 AP. L.C. Case No. 2006006123CC05. June 2, 2008. An Appeal from the County Court for Miami-Dade County. Counsel: Michael J. Neimand, for Appellant. Marlene S. Reiss and Richard E. Doherty, for Appellee.
(Before LEONARD E. GLICK, ELLEN L. LEESFIELD and DENNIS J. MURPHY, JJ.)
(LEESFIELD, J.) This is an appeal from a final summary judgment entered by the trial court in favor of the Appellee, Hialeah Medical Associates, Inc. (“Hialeah Medical”) on the issue of reasonableness, relatedness and necessity (“RRN”) of medical treatment it provided as assignee of Osmany Sanchez’s personal injury protection benefits. Appellant, United Automobile Insurance Company (“United”) additionally appeals the award of attorney’s fees and costs to Hialeah Medical.
A motion for summary judgment was filed by Hialeah Medical on October 16, 2006. In opposition to the motion United filed, among other counter-affidavits, that of Dr. Musa-Ris, who performed an independent medical examination. At the summary judgment hearing held on January 29, 2007, the trial court struck the counter-affidavit of Dr. Musa-Ris finding that it was defective because the jurat failed to indicate whether the doctor was personally known or had produced identification to the notary. Additionally, the trial court denied United’s request for an opportunity to supplement the record with a corrected affidavit.
On February 7, 2007, United filed a timely motion for rehearing attaching a counter-affidavit which corrected the defect in the jurat. The trial court denied the motion indicating that the corrected affidavit would not be considered as it was filed too late.
We reverse and remand the summary judgment below finding that the trial court erred in refusing to consider Dr. Musa-Ris’s corrected counter-affidavit filed with United’s motion for rehearing. While the trial court was correct that the initial counter-affidavit was legally insufficient, the defect in the jurat was essentially a technical one. At the Motion for Rehearing, the trial court was not presented with a new affidavit, but rather the exact same affidavit, except for a sufficient jurat. The Florida Supreme Court has held that it is error to deny a non-moving party the opportunity to amend and supplement a defective affidavit. Stephens v. Dichtenmueller, 216 So. 2d 448 (Fla. 1968). When technical deficiencies in a non-movant’s affidavit are correctable, the trial judge should permit the correction to be made. McCoy v. Hoffmeister, 435 So. 2d 989, 990 (Fla. 5th DCA 1983). Even if essential, correctable deficiencies should be allowed to be corrected. Charlonne v. Rosenthal, 642 So. 2d 632 (Fla. 3d DCA 1994). The defect in the affidavit of Dr. Musa-Ris was technical and curable. Hence, it was error for the trial court to refuse to allow United the opportunity to correct any technical deficiency. The trial court should have considered Dr. Musa-Ris’s corrected counter-affidavit on the merits.
We also reverse the lower court’s order awarding Hialeah Medical attorney’s fees and costs. Where a final judgment is no longer enforceable, an attorney fee award based on that judgment is likewise not enforceable. See Nevarez v. Friskney, 819 So. 2d 992, 993 (Fla. 5th DCA 2002); Marty v. Barister, 727 So. 2d 1124, 1125 (Fla. 1st DCA 1999).
Additionally, Appellee’s Motion for Attorney’s Fees is DENIED. Since Appellee is not the prevailing party in this appeal, attorney’s fees are not attainable. §627.428(1). Fla. Stat.
FOR THESE REASONS, the order granting summary judgment in favor of Appellee is
REVERSED, and this cause is REMANDED to the trial court for further proceedings consistent with this opinion. REVERSED and REMANDED. (GLICK and MURPHY, JJ., concur.)
