Guerrero v. Fonte
| Decision Date | 07 April 1987 |
| Docket Number | No. 85-1636,85-1636 |
| Citation | 507 So.2d 620,12 Fla. L. Weekly 960 |
| Parties | 12 Fla. L. Weekly 960 Cesar Enrique GUERRERO, M.D. and Cesar Enrique Guerrero, M.D., P.A., Appellants, v. Azucena FONTE, as guardian of the person and property of Rafael Fonte, incompetent, Azucena Fonte, as wife of Rafael Fonte; Lazara Concepcion Fonte, through her mother and next friend, Azucena Fonte; and Mercedes Barbara Fonte, through her mother and next friend, Azucena Fonte, Appellees. |
| Court | Florida District Court of Appeals |
Burt E. Redlus, Miami, for appellants.
Spence, Payne, Masington, Grossman & Needle and Stuart Z. Grossman and Rosalind B. Herschthal, Miami, for appellees.
Before HUBBART, NESBITT, BASKIN, DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.
ON HEARING EN BANC
Dr. Guerrero and Guerrero, M.D., P.A., appeal from the trial court's order denying their motion for attorney's fees. We reverse the order. 1
The plaintiffs below, Azucena, Rafael, Lazara Concepcion and Mercedes Barbara Fonte, brought a medical malpractice action against numerous defendants, including the appellants. Following some discovery in the case, the plaintiffs settled with all of the defendants except Dr. Guerrero and another doctor. The plaintiffs took a voluntary dismissal against the remaining defendants, pursuant to Florida Rule of Civil Procedure 1.420(a). The plaintiffs stipulated in the dismissal against the other doctor that it would be with prejudice to the re-filing of the claim in return for a stipulation that they would not be responsible for the doctor's attorney's fees. The dismissal taken against the appellants was without stipulation.
Thereafter, the appellants filed a motion in the trial court for attorney's fees, pursuant to section 768.56, Florida Statutes (1983). It was their contention that a voluntarily dismissed defendant is a prevailing party, or in the alternative, they were the prevailing parties, within the meaning of that section, since the statute of limitations had now run on the malpractice action and the plaintiffs would no longer be able to maintain a suit against them. The trial court denied their motion and they brought this appeal.
We agree with appellants that the facts of this case distinguish it from Simmons v. Schimmel, 476 So.2d 1342 (Fla. 3d DCA 1985), review denied, 486 So.2d 597 (Fla.1986), and following the rationale of this court's majority opinion in Englander v. St. Francis Hosp., Inc., 506 So.2d 423, (Fla. 3d DCA 1987) (en banc), we reverse the trial court's order denying the appellants' motion for attorney's fees and remand for further proceedings in accordance with Englander. 2
It is so ordered.
My dissent is for reasons which are explained in my concurring opinion in Englander v. St. Francis Hosp. Inc., 506 So.2d 423 (Fla. 3d DCA 1987) (en banc).
1 This court granted hearing en banc to avoid a conflict with Englander v. St. Francis Hosp., Inc., 506 So.2d 423 (Fla. 3d DCA 1987) (en banc).
2 Appellants contend that since the statute of limitations has subsequently run against the plaintiffs' claim, they are the prevailing party. We do not agree that the subsequent running of the statute makes the appellants the prevailing party. The...
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