Third District Court of Appeal
State of Florida
Opinion filed February 17, 2016.
Not final until disposition of timely filed motion for rehearing.
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No. 3D15-2806
Lower Tribunal No. 14-268
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State Farm Mutual Automobile Insurance Company,
Petitioner,
vs.
Pro Health Pain Relief Center, Inc., etc.,
Respondent.
A Writ of Certiorari to the Circuit Court for Miami-Dade County, Appellate
Division, Jacqueline Hogan Scola, Jorge E. Cueto and Ariana Fajardo Orshan,
Judges.
Seipp, Flick & Hosley, LLP, and Douglas H. Stein, for petitioner.
Marlene S. Reiss; Munir D. Barakat, for respondent.
Before SUAREZ, C.J., and WELLS and SHEPHERD, JJ.
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.
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