Miami Children's Hosp. v. Tamayo, No. 71213

CourtUnited States State Supreme Court of Florida
Writing for the CourtOVERTON; McDONALD
Citation529 So.2d 667,13 Fla. L. Weekly 340
Parties13 Fla. L. Weekly 340 MIAMI CHILDREN'S HOSPITAL, Petitioner, v. Ulises TAMAYO, etc., et al., Respondents.
Docket NumberNo. 71213
Decision Date26 May 1988

Page 667

529 So.2d 667
13 Fla. L. Weekly 340
MIAMI CHILDREN'S HOSPITAL, Petitioner,
v.
Ulises TAMAYO, etc., et al., Respondents.
No. 71213.
Supreme Court of Florida.
May 26, 1988.
Rehearing Denied Sept. 8, 1988.

Betsy E. Gallagher of Kubicki, Bradley, Draper, Gallagher & McGrane, P.A., Miami, for petitioner.

Arnold R. Ginsberg of Horton, Perse & Ginsberg, and J. Arthur Hawkesworth, Miami, for respondents.

OVERTON, Justice.

This is a petition to review Tamayo v. Miami Children's Hospital, 511 So.2d 1091 (Fla. 3d DCA 1987), in which the Third District Court of Appeal certified that its decision passed on a question of great public importance. We rephrase the question as follows:

When addressing an attorney's fee award under section 768.56, Florida Statutes (1985), may the lodestar principles set forth in Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. [1983]1985), be applied without the requirement contained in Rowe that an attorney's fee not exceed the fee set by the contingency agreement if the agreement was entered into prior to our Rowe decision?

We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We answer the question in the negative and rule that if section 768.56, Florida Statutes (1983), applies, all of the principles enunciated in Rowe must apply.

The facts show that the respondents prevailed in a medical malpractice action and recovered a $5,000 judgment. They and their attorney had entered into a forty percent contingency fee contract. The trial court, in awarding attorney's fees pursuant to section 768.56, utilized the principles set forth in Rowe, but limited the award to the forty percent contingent fee payable under their contract. The district court reversed, holding that the language in Rowe which restricted the attorney's fee to no more than the amount contained in the agreement between the attorney and his client should not be applied in this instance because the attorney's fee agreement was entered into prior to the effective date of Rowe and determining that that part of Rowe should not apply retroactively to restrict an attorney's fee award. The court relied on its decisions in Tuerk v. Allstate Insurance Co., 498 So.2d 504 (Fla. 3d DCA 1986), review denied, 506 So.2d 1040 (Fla.1987), and Levy v. Levy, 483 So.2d 455 (Fla. 3d DCA), review denied, 492 So.2d 1333 (Fla.1986), and remanded the cause to the trial court "with directions to enter an attorney's fee award based on the standards

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25 practice notes
  • First Baptist Church of Cape Coral, Fla., Inc. v. Compass Constr., Inc., Nos. SC11–1278
    • United States
    • United States State Supreme Court of Florida
    • 30 Mayo 2013
    ...applied Rowe to cap fees awarded under both contingency and hourly fee agreements. For example, in Miami Children's Hospital v. Tamayo, 529 So.2d 667, 667–68 (Fla.1988), we held that the defendant could not be required to pay the plaintiffs more in prevailing party attorney's fees than the ......
  • Orlando Regional Medical Center, Inc. v. Chmielewski, Nos. 89-691
    • United States
    • Florida District Court of Appeals
    • 6 Diciembre 1990
    ...of their gross award. World Service Life Insurance Co. v. Bodiford, 537 So.2d 1381 (Fla.1989); Miami Children's Hospital v. Tamayo, 529 So.2d 667 (Fla.1988); North Shore Medical Center, Inc. v. Kennedy, 554 So.2d 8 (Fla. 3d DCA 1989), rev. denied, 563 So.2d 632 (Fla.1990). See also Perez-Bo......
  • B & H Const. & Supply Co., Inc. v. District Bd. of Trustees of Tallahassee Community College, Florida, No. 88-446
    • United States
    • Court of Appeal of Florida (US)
    • 6 Abril 1989
    ...498 So.2d 504 (Fla. 3d DCA 1986), rev. den., I 506 So.2d 1040 (Fla.1987) (disapproved on other grounds, Miami Children's Hosp. v. Tamayo, 529 So.2d 667 In Travieso, the Court held that the broad language of § 92.231 encompassed taxing costs for the services of an attorney who testifies as a......
  • Foliage Design Systems, Inc. v. Fernandez, No. 90-3382
    • United States
    • Court of Appeal of Florida (US)
    • 13 Noviembre 1991
    ...So.2d 277 (Fla. 1st DCA 1989); Martin Marietta Corp. v. Glumb, 523 So.2d 1190 (Fla. 1st DCA 1988); Miami Children's Hospital v. Tamayo, 529 So.2d 667 (Fla.1988); United States v. Kolter, 849 F.2d 541 (11th Cir.1988); Bacon v. Broward Employment & Training Admin., 501 So.2d 724 (Fla. 1st DCA......
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25 cases
  • First Baptist Church of Cape Coral, Fla., Inc. v. Compass Constr., Inc., Nos. SC11–1278
    • United States
    • United States State Supreme Court of Florida
    • 30 Mayo 2013
    ...applied Rowe to cap fees awarded under both contingency and hourly fee agreements. For example, in Miami Children's Hospital v. Tamayo, 529 So.2d 667, 667–68 (Fla.1988), we held that the defendant could not be required to pay the plaintiffs more in prevailing party attorney's fees than the ......
  • Orlando Regional Medical Center, Inc. v. Chmielewski, Nos. 89-691
    • United States
    • Florida District Court of Appeals
    • 6 Diciembre 1990
    ...of their gross award. World Service Life Insurance Co. v. Bodiford, 537 So.2d 1381 (Fla.1989); Miami Children's Hospital v. Tamayo, 529 So.2d 667 (Fla.1988); North Shore Medical Center, Inc. v. Kennedy, 554 So.2d 8 (Fla. 3d DCA 1989), rev. denied, 563 So.2d 632 (Fla.1990). See also Perez-Bo......
  • B & H Const. & Supply Co., Inc. v. District Bd. of Trustees of Tallahassee Community College, Florida, No. 88-446
    • United States
    • Court of Appeal of Florida (US)
    • 6 Abril 1989
    ...498 So.2d 504 (Fla. 3d DCA 1986), rev. den., I 506 So.2d 1040 (Fla.1987) (disapproved on other grounds, Miami Children's Hosp. v. Tamayo, 529 So.2d 667 In Travieso, the Court held that the broad language of § 92.231 encompassed taxing costs for the services of an attorney who testifies as a......
  • Ganson v. State, Dept. of Admin., Office of State Employees' Ins., No. 88-1568
    • United States
    • Court of Appeal of Florida (US)
    • 22 Diciembre 1989
    ...together produces a lodestar of $24,125.00. But the Department argues, on the basis of cases such as Miami Children's Hospital v. Tamayo, 529 So.2d 667 (Fla.1988), that the fee to be awarded in this case must be limited to the maximum fee that Ganson was obligated to pay to her attorney; an......
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