19 Fla. L. Weekly Supp. 973a
Online Reference: FLWSUPP 1912LARAInsurance — Personal injury protection — Dismissal — Error to dismiss statement of claim with prejudice as being barred by res judicata or collateral estoppel based on voluntary dismissal of prior litigation where voluntary dismissal of prior litigation was not referenced in claim or attachments to claim — Award of appellate attorney’s fees to prevailing medical provider is automatically conditioned, by controlling, precedent on provider ultimately prevailing with recovery on policy
WIDE OPEN MRI, a/a/o Lenor Lara, Appellant-Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Appellee-Defendant. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 10-068 AP. L.C. Case No. 06-14629 SP 23. July 25, 2012. Oral Argument: August 3 , 2011. On appeal from a dismissal order rendered by the Miami-Dade County Court. Honorable Lisa Walsh, Judge. Counsel: Marlene S. Reiss, Law Offices of Marlene S. Reiss, P.A., for Appellant-Plaintiff. Lara J. Edelstein, United Automobile Insurance Company, Office of the General Counsel, for Appellee-Defendant.
(Before MUIR, ESPINOSA DENNIS, and GLAZER, JJ.)
(PER CURIAM.) Wide Open MRI a/a/o Lenor Lara (“medical provider” or “provider”) served a four (4) count statement of claim1 against United Automobile Insurance Company (“insurer”). The statement of claim alleged that the provider submitted bills to the insurer for treatment provided from May 27, 2004 through July 20, 2004.
The insurer moved to dismiss the statement of claim with prejudice. In its motion to dismiss, the insurer alleged that prior litigation (Case No. 04-10766) from the same accident involved treatment provided on May 27, 2004.2 The insurer asserted that since the prior litigation resulted in voluntary dismissal with prejudice, the trial court should dismiss this subsequent action since both civil actions flow from the same wrongful act. To clarify, the insurer asserted that collateral estoppel barred the medical provider from seeking relief for the May 27, 2004 treatment date. The lower tribunal dismissed this civil action as prohibited by collateral estoppel and reasoned that the provider voluntarily dismissed with prejudice “all dates of service encompassed in” the prior litigation.
In this direct appeal, the medical provider challenges the order dismissing its action as barred by the collateral estoppel3 doctrine. A dismissal order concluding that res judicata bars a claim constitutes a final appealable order. Diaz v. United Auto. Ins. Co., 18 Fla. L. Weekly Supp. 774a (Fla. 11th Cir. Ct. July 13, 2011), cert. denied, 3D11-2471 (Fla. 3d DCA Oct. 5, 2011). Section 26.012(1), Florida Statutes, grants us jurisdiction to review this final order.
When reviewing a dismissal order, we presume that the statement of claim’s allegations constitute truthful statements and construe all reasonable inferences from the allegations in the non-moving party’s (provider’s) favor. Id. We review an order dismissing an action de novo. Accardi v. Hillsboro Shores Improvement Ass’n, Inc., 944 So. 2d 1008, 1011; 30 Fla. L. Weekly D2128a (Fla. 4th DCA 2005). We limit our review to the statement of claim’s four (4) corners and attachments. Morin v. Florida Power & Light Co., 963 So. 2d 258, 260; 32 Fla. L. Weekly D1732a (Fla. 3d DCA 2007).I.
The provider argues that the county court improperly dismissed the action as its analysis exceeded the statement of claim’s four corners since the statement of claim did not discuss the previous lawsuit. We agree.
A defendant must generally assert res judicata as an affirmative defense within its answer. Fla. R. Civ. P. 1.110(d); Accardi, 944 So. 2d at 1012 n. 1. However, the law creates an exception where the complaint’s face sufficiently demonstrates a res judicata affirmative defense. Id.4 If the complaint does not include allegations demonstrating res judicata as an affirmative defense, then the lower tribunal may not consider the affirmative defense when ruling upon “a rule 1.140(d) motion to dismiss.” Papa John’s Intl, Inc. v. Cosentino, 916 So. 2d 977, 983; 31 Fla. L. Weekly D73a (Fla. 4th DCA 2005). See Garnac Grain Co., Inc. v. Mejia, 962 So. 2d 408, 410; 32 Fla. L. Weekly D1963a (Fla. 4th DCA 2007). Merely referring to a prior lawsuit “is insufficient” to invoke res judicata. United Auto. Ins. Co. v. Law Offices of Michael I. Libman, 46 So. 3d 1101, 1104; 35 Fla. L. Weekly D2390a (Fla. 3d DCA 2010). We review de novo a ruling that res judicata bars relief. Id. at 1103. Here, the voluntary dismissal with prejudice functions as the adjudicatory event providing the basis for our res judicata analysis. A voluntary dismissal with prejudice adjudicates the merits and thus bars a subsequent action on the same claim. W&W Lumber of Palm Beach, Inc. v. Town & Country Builders, Inc., 35 So. 3d 79, 83 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D1065a].
We determine whether the statement of claim alleged facts leading to an inference that res judicata barred the provider’s instant action. Reviewing the statement of claim de novo, we did not find any references to the voluntary dismissal with prejudice in the prior litigation (Case No. 04-10766). Indeed, the medical provider did not even attach the voluntary dismissal with prejudice to the statement of claim. Thus, for motion to dismiss purposes, the statement of claim did not apprise the trial court regarding the prior litigation’s resolution of the May 27, 2004 treatment. Legal error occurred when the lower tribunal held that “collateral estoppel” barred this action since the statement of claim and attachments did not allege sufficient facts to infer that collateral estoppels or res judicata barred this civil action. Mejia, 962 So. 2d at 410; Cosentino, 916 So. 2d at 983. By considering information beyond the statement of claim’s four (4) corners and attachments, the trial court applied the incorrect legal standard when ruling upon the motion to dismiss. Morin, 963 So. 2d at 260. We vacate the dismissal order and remand to the county court to reinstate the civil action.II.
The medical provider requests an order granting it section 627.428(1), Florida Statutes, appellate attorney’s fees. As the prevailing party on appeal, we grant the medical provider’s motion for section 627.428(1) appellate attorney’s fees.
We do not ignore the insurer’s opposition to the provider’s motion. The insurer argues that Allstate Ins. Co. v. De La Fe, 647 So. 2d 965 (Fla. 3d DCA 1994), posits that when we grant attorney’s fees, we condition the award upon the provider ultimately prevailing with a recovery pursuant to the policy. Thus, the insurer requests that we condition granting appellate attorney’s fees upon the provider obtaining a favorable judgment in the trial court litigation. We agree with the inferences the insurer draws from De La Fe. See Id. at 966 (“our prior order, in the earlier case granting the motion for appellate fees, should have been conditioned upon the insured ultimately prevailing with a recovery on the policy”) (emphasis added). However, we find no reason to inscribe this condition within this opinion. As binding precedent upon this appellate division and the county courts, De La Fe automatically placed the ultimate prevailing condition into the trial court’s analysis when determining appellate attorney’s fees. Thus, we decline to grant the insurer’s request; the insurer should raise this assertion at the trial court level.
REVERSED and REMANDED; APPELLATE ATTORNEY’S FEES GRANTED.
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1Because the provider sought damages less than $2,500.00, the Florida Small Claims Rules initially governed this proceeding. Fla. Sm. Cl. R. 7.010(b). Pursuant to Rule 7.050(a)(1), plaintiffs commence an action by filing a “statement of claim,” not a complaint. Although the small claims rules originally governed this litigation, the trial court ordered the parties to proceed pursuant to the civil procedural rules before the insurer moved for dismissal. See Fla. Sm. Cl. R. 7.020(c).
2The insurer attached the prior litigation’s statement of claim to the dismissal motion and incorrectly asserted that the prior litigation sought treatment for May 27, 2004. Upon reviewing the prior litigation’s statement of claim, we found no indication that the provider sought relief for the May 27, 2004 treatment date (R. 265-266).
3We distinguish res judicata from collateral estoppel. Res judicata “bars not only those issues which were actually decided in the prior action but also any issues which could have been raised.” Lee v. City of Peoria, 685 F.2d 196, 198 (7th Cir. 1982) (emphasis added); United Auto Ins. Co. v. Law Offices of Michael Libman, 46 So. 3d 1101, 1104; 35 Fla. L. Weekly D2390a (Fla. 3d DCA 2010). In slight contrast, collateral estoppel bars relitigating “an issue which has already been determined by a valid judgment.” Stogniew v. McQueen, 656 So. 2d 917, 919; 20 Fla. L. Weekly S208a (Fla. 1995) (emphasis added). Particularly relevant to our analysis, “under res judicata, a final . . . judgment bars a subsequent suit.” 32A Fla. Jur 2d Judgments and Decrees § 121 (emphasis added). Because the trial court did not dismiss a particular count (issue preclusion) but dismissed the entire action (claim preclusion), we proceed as if the court barred the statement of claim under the res judicata doctrine.
4See Fla. R. Civ. P. 1.110(d) (“Affirmative defenses appearing on the face of a prior pleading may be asserted as grounds for a motion or defense under rule 1.140(b)”) (emphasis added).
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