18 Fla. L. Weekly Supp. 45a
Online Reference: FLWSUPP 1801LEWI
Insurance — Personal injury protection — Attorney’s fees — Trial court erred in entering final judgment entitling medical provider to appellate attorney’s fees for defense of certiorari challenge to discovery order prior to prevailing on merits of case
UNITED AUTOMOBILE INSURANCE COMPANY, Petitioner, v. DAVID S. MAKLAN, D.C., P.A. d/b/a DEERFIELD CHIROPRACTIC CENTER (DARREN LEWIS), Respondent. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 08-51879 (03). September 17, 2010. Counsel: Adolfo Podrecca, and Scott A. DiSalvo, Fazio, DiSalvo, Cannon, Abers, Podrecca, Fazio & Carroll, Ft. Lauderdale. Lara J. Edelstein, United Auto Insurance Co., Office of General Counsel, Miami.
ORDER ON PETITIONER’S MOTION FOR REVIEW OF THE TRIAL COURT’S ORDER AWARDING APPELLATE FEES
(RODRIGUEZ-POWELL, Judge.) THIS CAUSE has been brought before this Court upon Petitioner’s Motion for Review of Order Awarding Appellate Fees. The Court having considered the motion, the record, and being advised in the premises, it hereby finds and decides as follow:
On November 14, 2008, the Respondent timely filed its motion for appellate fees pursuant to Florida Rule of Appellate Procedure 9.400(b).1 In that motion, the Respondent requested its appellate fees pursuant to sections 627.428 and 627.736(4)(h), Florida Statutes. See Brass & Singer, P.A. v. United Auto. Ins. Co., 944 So, 2d 252 (Fla. 2006) [31 Fla. L. Weekly S762a] (noting that appellate attorneys’ fees are subject to recovery by contract, by statute, or by the recovery of a common fund); Lehigh Corp. v. Byrd, 397 So. 2d 1202, 1205 (Fla. 1st DCA 1981). Subsequently, this Court denied Petitioner’s petition for writ of certiorari concluding that the trial court did not depart from the essential requirements of law when it required Petitioner to produce thirty redacted IME final opinions of Dr. Drucker. As such, this Court concluded that the Respondent was entitled to its appellate attorney’s fees as the prevailing party on appeal. See Douglas v. G.E.E.N. Corp., 415 So. 2d 130 (Fla. 5th DCA 1982) (holding that appellate attorneys’ fees are limited to the prevailing party).
On remand, the trial court properly considered and determined the appropriate amount of appellate attorney’s fees that Respondent should recover. See Fla.R.App.P. 9.400(b); Sierra v. Sierra, 505 So. 2d 432 (Fla. 1987) (noting that the amount of appellate attorneys’ fees is usually determined in the lower tribunal after an evidentiary hearing on the matter). However, the trial court incorrectly entered a Final Judgment entitling the Respondent to its fees, pursuant to Florida Rule of Civil Procedure 1.380(a)(4), prior to the Respondent prevailing on the merits in the case below. See Allstar Builders Corp., Inc. v. Zimmerman, 706 So. 2d 92, 92 (Fla. 3d DCA 1998) [23 Fla. L. Weekly D518a] (noting that the prevailing party in an appeal from a non-final order is entitled to recover appellate attorney’s fees only in that the party also prevails on the merits of the proceeding on remand in the lower tribunal).
Accordingly, it is hereby
ORDERED AND ADJUDGED that the Petitioner’s Motion is GRANTED in part and DENIED in part. The August 17, 2010 Final Judgment for Fazio, DiSalvo, Cannon, Abers, Podrecca, Fazio & Carroll Awarding Attorney’s Fees on Appeal on a Discovery Order is affirmed only as to the amount of the fees to be awarded. The Final Judgment is reversed in part and remanded for the trial court to enter a subsequent final judgment in favor of the Respondent for its appellate attorney’s fees, pursuant to section 627.428, Florida Statutes, if and only if, the Respondent prevails on the merits in the case below.
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1The Respondent filed two subsequent motions for appellate attorney’s fees. On March 6, 2009, the Respondent filed a motion entitled: Respondent Continuing Objection and Motion to Strike Petitioner’s Renewed Motion Dated 1/23/09 for Review of Denial of Stay, Proposed Order Granting Same and Letter Dated 03/02/09 from Lara Edelstein, Esq.; and Respondent’s Motion for Attorney’s Fees. In paragraph II of this combined motion, Respondent sought fees citing to section 627.428, Florida Statutes. See McCreary v. Florida Residential Prop. and Cas. Joint Underwriting Ass’n, 758 So. 2d 692 (Fla. 4th DCA 1999) [25 Fla. L. Weekly D380b] (attorney’s fees must be requested by filing a separate motion”). Also, on April 20, 2009, Respondent filed a First Amended Motion for Appellate Attorney’s Fees and Costs citing to Florida Rule of Civil Procedure 1.380 and sections 627.428 and 627.736(4)(h), Florida Statutes, as a bases for recovery. In response, Petitioner filed a response objecting to the motion’s bases for fees, yet conceding that should the Respondent be the prevailing party in the appeal, it would be entitled to fees pursuant to section 627.428, Florida Statutes. However, this Court need not address the validity of these subsequent motions as we find the November 14, 2008 motion dispositive.
