Frankowitz v. Propst, Nos. 84-402

CourtFlorida District Court of Appeals
Writing for the CourtDELL; BARKETT; ANSTEAD; PER CURIAM; ANSTEAD; ANSTEAD
Citation10 Fla. L. Weekly 152,464 So.2d 1225
Parties10 Fla. L. Weekly 152, 10 Fla. L. Weekly 863 Stanley FRANKOWITZ, D.O., John Thesing, D.O., Sunrise Medical Group, James J. Yezbick, D.O., David Miller, D.O., and John A. Neily, Appellants, v. Myrtle PROPST and Matthias Propst, Appellees.
Docket Number84-505 and 84-554,Nos. 84-402
Decision Date09 January 1985

Page 1225

464 So.2d 1225
10 Fla. L. Weekly 152, 10 Fla. L. Weekly 863
Stanley FRANKOWITZ, D.O., John Thesing, D.O., Sunrise Medical Group, James J. Yezbick, D.O., David Miller, D.O., and John A. Neily, Appellants,
v.
Myrtle PROPST and Matthias Propst, Appellees.
Nos. 84-402, 84-505 and 84-554.
District Court of Appeal of Florida,
Fourth District.
Jan. 9, 1985.
Rehearing and/or Certification Denied April 3, 1985.

Melanie G. May of Bunnell, Denman & Woulfe, P.A., and David L. Kahn of David L. Kahn, P.A., Fort Lauderdale, for appellants--Stanley Frankowitz, John Thesing, Sunrise Medical Group, James J. Yezbick and David Miller.

Bruce F. Simberg, Conroy & Simberg, P.A., Hollywood, for appellant--John A. Neily.

Guy B. Bailey, Jr., and Mercedes C. Busto, Bailey & Dawes, Miami, for appellees.

DELL, Judge.

Appellants challenge the constitutionality of Section 768.56, Florida Statutes (1983).

In August, 1981, appellees filed a complaint which alleged that each appellant, at various times commencing in 1977 and ending in June of 1980, was guilty of medical malpractice. Appellants moved to dismiss appellees' complaint asserting non-compliance with Section 768.56, Florida Statutes (1983). 1 The trial court denied the motion,

Page 1226

conditioned upon appellees filing an affidavit in compliance with the statute. Thereafter appellants answered the complaint and affirmatively sought attorney's fees under Section 768.56. A jury found that each doctor had committed negligence and awarded Mrs. Propst damages, but found that Mr. Propst had not sustained any damages. Appellants moved for attorney's fees against Mr. Propst asserting that they prevailed on his claim, and appellees moved for attorney's fees against appellants as prevailing parties. The trial court granted appellants' motion for attorney's fees against Mr. Propst 2 and granted Mrs. Propst's motion for attorney's fees against appellants.

This appeal concerns only the award of attorney's fees to Mrs. Propst. Appellants contend that the trial judge erred by applying Section 768.56, Florida Statutes, retroactively; that Section 768.56 is unconstitutional; and that the trial court erred when it found appellants equitably estopped to assert the unconstitutionality of the statute.

Appellants first contend that because the acts of negligence alleged by appellees all occurred before July 1, 1980, the effective date of the statute, the award of attorney's fees to Mrs. Propst constitutes an impermissible retroactive application of the statute. Statutes generally operate prospectively, but will be given retroactive application if required by the terms of the statute. Keystone Water Co. v. Bevis, 278 So.2d 606 (Fla.1973). Section 768.56(2) provides "This section shall not apply to any action filed before July 1, 1980." We previously held that this language evidenced the legislature's intent for the statute to apply to parties sued on and after July 1, 1980, Bethesda Radiology...

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6 practice notes
  • American Motors Corp. v. Abrahantes, Nos. 84-2294
    • United States
    • Court of Appeal of Florida (US)
    • June 25, 1985
    ...Rueben H. Donnelley Corp., 415 So.2d 892 (Fla. 3d DCA 1982); White v. Nicholson, 386 So.2d 74 (Fla. 2d DCA 1980). 6 Frankowitz v. Propst, 464 So.2d 1225 (Fla. 4th DCA 1985), relied upon by the Abrahanteses and Exon, did not involve a long-arm statute and was disapproved by the supreme court......
  • Florida Patient's Compensation Fund v. Rowe, No. 64459
    • United States
    • United States State Supreme Court of Florida
    • May 2, 1985
    ...the constitutionality of the statute. See Bayfront Medical Center, Inc. v. Ly, 465 So.2d 1383 (Fla. 2d DCA 1985); Frankowitz v. Propst, 464 So.2d 1225 (Fla. 4th DCA 1985); Davis v. North Shore Hospital, 452 So.2d 937 Fla. 3d DCA 1983); Young v. Altenhaus, 448 So.2d 1039 (Fla. 3d DCA 1983); ......
  • Young v. Altenhaus, Nos. 64504
    • United States
    • United States State Supreme Court of Florida
    • May 2, 1985
    ...2d DCA 1985), is consistent with this holding. The Fourth District Court of Appeal has taken a contrary position in Frankowitz v. Propst, 464 So.2d 1225 (Fla. 4th DCA 1985), and Bethesda Radiology Associates, P.A. v. Yaffee, 437 So.2d 189 (Fla. 4th DCA 1983). We agree with the First and Sec......
  • Bayfront Medical Center, Inc. v. Kim Oang Thi Ly, No. 84-1568
    • United States
    • Florida District Court of Appeals
    • March 29, 1985
    ...courts of appeal have considered the constitutionality of section 768.56 and found it to be constitutional. Frankowitz v. Propst, 464 So.2d 1225 (Fla. 4th DCA 1985) [10 FLW 153]; Davis v. North Shore Hospital, 452 So.2d 937 (Fla. 3d DCA 1983); Young v. Altenhaus, 448 So.2d 1039 (Fla. 3d DCA......
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6 cases
  • American Motors Corp. v. Abrahantes, Nos. 84-2294
    • United States
    • Court of Appeal of Florida (US)
    • June 25, 1985
    ...Rueben H. Donnelley Corp., 415 So.2d 892 (Fla. 3d DCA 1982); White v. Nicholson, 386 So.2d 74 (Fla. 2d DCA 1980). 6 Frankowitz v. Propst, 464 So.2d 1225 (Fla. 4th DCA 1985), relied upon by the Abrahanteses and Exon, did not involve a long-arm statute and was disapproved by the supreme court......
  • Florida Patient's Compensation Fund v. Rowe, No. 64459
    • United States
    • United States State Supreme Court of Florida
    • May 2, 1985
    ...the constitutionality of the statute. See Bayfront Medical Center, Inc. v. Ly, 465 So.2d 1383 (Fla. 2d DCA 1985); Frankowitz v. Propst, 464 So.2d 1225 (Fla. 4th DCA 1985); Davis v. North Shore Hospital, 452 So.2d 937 Fla. 3d DCA 1983); Young v. Altenhaus, 448 So.2d 1039 (Fla. 3d DCA 1983); ......
  • Young v. Altenhaus, Nos. 64504
    • United States
    • United States State Supreme Court of Florida
    • May 2, 1985
    ...2d DCA 1985), is consistent with this holding. The Fourth District Court of Appeal has taken a contrary position in Frankowitz v. Propst, 464 So.2d 1225 (Fla. 4th DCA 1985), and Bethesda Radiology Associates, P.A. v. Yaffee, 437 So.2d 189 (Fla. 4th DCA 1983). We agree with the First and Sec......
  • Bayfront Medical Center, Inc. v. Kim Oang Thi Ly, No. 84-1568
    • United States
    • Florida District Court of Appeals
    • March 29, 1985
    ...courts of appeal have considered the constitutionality of section 768.56 and found it to be constitutional. Frankowitz v. Propst, 464 So.2d 1225 (Fla. 4th DCA 1985) [10 FLW 153]; Davis v. North Shore Hospital, 452 So.2d 937 (Fla. 3d DCA 1983); Young v. Altenhaus, 448 So.2d 1039 (Fla. 3d DCA......
  • Request a trial to view additional results

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