Opinion
No. 87-1518.
February 9, 1988.
Appeal from the Circuit Court, Dade County, Joseph Gersten, J.
Womack, Lombana Bass and Jay P. Chimpoulis, Miami, for appellants.
L. Gabriel Bach, Miami, for appellee.
Before SCHWARTZ, C.J., and HUBBART and DANIEL S. PEARSON, JJ.
This is an appeal by the defendants Clinica Fatima, Inc. and Francisco Perez from an adverse final order awarding attorney's fees to the plaintiff Claudio Diaz, M.D., P.A. in an action below to collect on a medical bill. It appears that after the action had been instituted below and the defendants had filed an answer and affirmative defenses, a stranger to this action, International Medical Centers, paid the plaintiff the amount due and owing on the subject medical bill. The defendants did not direct International Medical Centers to make this payment and the record is silent as to why the payment was made. Moreover, there was never any settlement between the parties or otherwise amicable resolution to this dispute; indeed, the plaintiff did not even take a voluntary dismissal in the cause.
We reverse the order under review because Sections 57.105 and 641.28, Florida Statutes (1985), the statutes on which the trial court relied to award the attorney's fees herein, are inapplicable to this case. The plaintiff below was not, as required by the above statutes, "the prevailing party" in the action below. Indeed, the defendants resisted the instant action at all times, and the action itself was never resolved adversely against them if, indeed, it was resolved at all. Moreover, the fact that the said action was apparently mooted by International Medical Centers' payment to the plaintiff does not make the plaintiff a "prevailing party" under the above statutes. See Del Valle v. Biltmore II Condominium Ass'n, 411 So.2d 1356 (Fla. 3d DCA 1982).
The order under review is reversed, and the cause is remanded to the trial court with directions to deny the plaintiff's motion for attorney's fees.
Reversed and remanded.