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State Farm Mut. Auto. Ins. Co. v. Pro Health Pa (In re in Relief Ctr., Inc.)

Third District Court of Appeal State of Florida
Feb 17, 2016
185 So. 3d 712 (Fla. Dist. Ct. App. 2016)

Opinion

No. 3D15–2806.

02-17-2016

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. PRO HEALTH PAIN RELIEF CENTER, INC., etc., Respondent.

Seipp, Flick & Hosley, LLP, and Douglas H. Stein, for petitioner. Marlene S. Reiss; Munir D. Barakat, for respondent.


Seipp, Flick & Hosley, LLP, and Douglas H. Stein, for petitioner.

Marlene S. Reiss; Munir D. Barakat, for respondent.

Opinion

SHEPHERD, J.

State Farm Automobile Insurance Company petitions this Court for a writ of certiorari to review an order of the Eleventh Judicial Circuit of Miami–Dade County, sitting in its appellate capacity, unconditionally granting respondent's, Pro Health Pain Relief Center, Inc. a/a/o Arturo Perez, motion for appellate attorney's fees. Respondent concedes below, and we agree, that “the award of appellate attorney's fees, pursuant to section 627.428(1), Florida Statutes, should have been conditioned upon respondent ultimately prevailing in the underlying proceeding.” Mercury Ins. Co. of Fla. v. RPM Medical Ctr., 89 So.3d 261, 262 (Fla. 3d DCA 2012) (citing Guadagno v. United Auto. Ins. Co., 88 So.3d 246 (Fla. 3d DCA 2011)) (other citations omitted). In Guadagno, this Court held, “the circuit court, acting in its appellate capacity, should have awarded petitioner appellate attorney's fees, pursuant to section 627.428(1), Florida Statutes (1982), conditioned upon petitioner prevailing in the underlying proceedings” and “[t]he failure to do so was a departure from the essential requirements of law.” Guadagno at 247.

We therefore grant the petition for writ of certiorari and quash the circuit court appellate division's order unconditionally granting respondent's appellate attorney's fees. We further remand to the appellate division for entry of an order conditionally awarding appellate attorney's fees to respondent upon its prevailing in the underlying proceedings.

Petition granted, order quashed, and case remanded with instructions.


Summaries of

State Farm Mut. Auto. Ins. Co. v. Pro Health Pa (In re in Relief Ctr., Inc.)

Third District Court of Appeal State of Florida
Feb 17, 2016
185 So. 3d 712 (Fla. Dist. Ct. App. 2016)
Case details for

State Farm Mut. Auto. Ins. Co. v. Pro Health Pa (In re in Relief Ctr., Inc.)

Case Details

Full title:State Farm Mutual Automobile Insurance Company, Petitioner, v. Pro Health…

Court:Third District Court of Appeal State of Florida

Date published: Feb 17, 2016

Citations

185 So. 3d 712 (Fla. Dist. Ct. App. 2016)