Englander v. St. Francis Hosp., Inc., 85-2773

• Decision Date: 25 March 1986
• Docket Number: No. 85-2773,85-2773
• Citation: 11 Fla. L. Weekly 716,506 So.2d 422
• Parties: 11 Fla. L. Weekly 716 Jeanne ENGLANDER and Paul Englander, her husband, Appellants, v. ST. FRANCIS HOSPITAL, INC., Appellee.
• Court: Florida District Court of Appeals

Page 422

506 So.2d 422

11 Fla. L. Weekly 716

Jeanne ENGLANDER and Paul Englander, her husband, Appellants, v. ST. FRANCIS HOSPITAL, INC., Appellee.

No. 85-2773.

District Court of Appeal of Florida Third District.

March 25, 1986.

An Appeal of a non-final order from the Circuit Court, Dade County; Robert Kaye, Judge.

Joel H. Brown, Miami, for appellants.

Talburt, Kubicki, Bradley & Draper and Betsy E. Gallagher, Miami, for appellee.

Before HUBBART, BASKIN and DANIEL S. PEARSON, JJ.

PER CURIAM.

The order denying the plaintiffs' motion to strike the defendant's claim for attorney's fees under Section 768.56, Florida Statutes (1983), is reversed upon a holding that such a claim cannot lie where, as here, (a) the plaintiff takes a voluntary dismissal without prejudice of his medical malpractice action against a particular defendant or defendants, and (b) there is nothing in the record to indicate that the voluntary dismissal was taken for other than strategic reasons. Simmons v. Schimmel, 476 So.2d 1342 (Fla. 3d DCA 1985). The cause is remanded to the trial court with directions to strike the motion for attorney's fees filed herein.

Reversed and remanded.

HUBBART and BASKIN, JJ., concur.

DANIEL S. PEARSON, Judge, dissenting.

Borrowing a page--or at least a phrase--from Simmons v. Schimmel, 476 So.2d 1342, 1345 (Fla. 3d DCA 1985), the plaintiffs claim that their "voluntary dismissal was not related to the merits of the case, but rather was a strategic move to avoid jury confusion." This court in Simmons, recognizing that the Legislature passed the attorneys' fee provision "to discourage nonmeritorious medical malpractice claims," 476 So.2d at 1344, struck an attorneys' fee award where there was ample evidence "tending to establish liability," and an undisputed contention that the voluntary dismissal was merely a strategic move unrelated to the merits of the case. In sharp contrast, in the present case there is no such evidence "tending to establish liability," and the "strategic move" assertion is strenuously disputed. Thus, the case before us appears to be the very sort of nonmeritorious medical malpractice claim the attorneys' fee provision sought to prevent.

The record on appeal shows that the complaint against St. Francis Hospital, Inc. was filed in November 1982 on the eve of the running of the statute of limitations. Over two years of discovery ensued, and in January 1985, St. Francis moved for summary judgment, noticing the motion to be heard on ...