Sholkoff v. Boca Raton Community Hosp., Inc., 95-3865

Decision Date21 May 1997
Docket NumberNo. 95-3865,95-3865
Citation693 So.2d 1114
Parties22 Fla. L. Weekly D1314 Robert M. SHOLKOFF, Petitioner, v. BOCA RATON COMMUNITY HOSPITAL, INC., Respondent.
CourtFlorida District Court of Appeals

Edward Diaz and D. Culver Smith III of Jones, Foster, Johnston & Stubbs, P.A., West Palm Beach, and Scott R. Shepherd of Greenfield & Rifkin, LLP, Ardmore, PA, for petitioner.

Jennifer S. Carroll of Metzger, Sonneborn & Rutter, P.A., West Palm Beach, for respondent.

FARMER, Judge.

While a patient at Boca Raton Community Hospital, Robert Sholkoff incurred a bill for $35,000. He sued the hospital in a class action, raising various challenges to the amount of the bill. Then he voluntarily dismissed the action, but later filed a new action raising similar claims. The hospital moved to recover costs and attorney's fees in the original action under rule 1.420(d). 1 After a hearing, the trial judge entered a judgment awarding the hospital the sum of $12,705, of which $12,232 represented attorney's fees. The judgment states that the Hospital "shall recover" costs in the stated amount and closes with the words "for which let execution issue." Sholkoff has now filed an appeal in this court to review the award.

The first question we confront, not raised by the parties, concerns the form of review. In this case--as, we suspect, for all costs judgments--the form of the judgment is final with the traditional words allowing execution. Ordinarily there would be no question that such a judgment is reviewable as a final judgment under rule 9.110. 2 In Chatlos v. City of Hallandale, 220 So.2d 353 (Fla.1969), however, the supreme court held that the proper method for review of an order awarding costs after a voluntary dismissal is a petition for certiorari, overruling a contrary decision. It is clear under Chatlos that awards of costs and fees after a voluntary dismissal are not reviewable as final appeals, but instead by certiorari.

When the new Florida Rules of Appellate Procedure were adopted in 1977, the revision made no provision for review of orders awarding costs after a voluntary dismissal; and the commentary of the rules committee, like the supreme court's opinion approving the new rules, does not cite or even mention Chatlos. See In re Proposed Florida Appellate Rules, 351 So.2d 981 (Fla.1977). There is no clear expression in the current appellate rules, therefore, that would allow a court to determine that Chatlos is no longer good law.

And, at the same time, while a "judgment" awarding voluntary dismissal costs may have all the indicia, as here, of a final judgment on which execution is possible, such a judgment may nevertheless lack some attributes of finality. For example, rule 1.420(d) expressly provides that in any refiled action the trial court:

may make such order for the payment of costs of the claim previously dismissed as it may deem proper and shall stay the proceedings in the action until the party seeking affirmative relief has complied with the order.

Under our recent decision in Estate of McGrail v. Rosas, 691 So.2d 50 (Fla. 4th DCA 1997), the trial court could allow periodic or installment payment of the cost award, which would of course require a stay of the refiled action. Additionally, the cases hold that the dismissing party who pays costs after the voluntary dismissal but who then prevails in the refiled action may recover from the losing party at least some of the costs previously paid. See Rose Printing Co. v. Wilson, 602 So.2d 600, 604 (Fla. 1st DCA 1992), aff'd, 624 So.2d 257 (Fla.1993); and McArthur Dairy, Inc. v. Guillen, 470 So.2d 747, 749 (Fla. 3d DCA 1985). Thus, while the order for costs may nominally be a judgment, it is not as final as an ordinary judgment for costs and fees would be after the case has been concluded on the merits. It is therefore reasonable to question whether the judgment awarding costs can be deemed truly final and thus reviewable under rule 9.110.

Since the adoption of the Florida Rules of Appellate Procedure, some courts have squarely held that review of awards of costs following a voluntary dismissal is properly by certiorari. See Rose Printing Co. v. Wilson, 602 So.2d 600 (Fla. 1st DCA 1992), aff'd, 624 So.2d 257 (Fla.1993); Barry A. Cohen P.A. v. LaTorre, 595 So.2d 1076 (Fla. 2nd DCA 1992); and Solimando v. Aloha Medical Center, 566 So.2d 580 (Fla. 2nd DCA 1990), after remand, 594 So.2d 850 (Fla. 2nd DCA 1992). So too with orders denying costs after the voluntary dismissal. See Wiper Hut Systems Inc. v. Steavens, 626 So.2d 289 (Fla. 4th DCA 1993); Rose Printing Co. Inc. v. Wilson, 602 So.2d 600 (Fla. 1st DCA 1992), aff'd, 624 So.2d 257 (Fla.1993); and Campbell v. Maze, 307 So.2d 234 (Fla. 4th DCA 1975), aff'd 339 So.2d 202 (Fla.1976). We therefore hold that, even under the Florida Rules of Appellate Procedure, Chatlos is still good law, and the proper method to obtain review of orders awarding and denying costs after a voluntary dismissal is by petition for certiorari. Accordingly, we treat this appeal as a petition for a writ of certiorari.

Turning to the substance, Sholkoff relies on a rule of "strict construction" of agreements for attorney's fees and argues that it was error to include attorney's fees in the cost award under rule 1.420(d) because the agreement in this case does not, he contends, unambiguously authorize attorney's fees. When he was admitted to the hospital, Sholkoff signed an "AUTHORIZATION AND GENERAL CONSENT" form. The second paragraph of this form is entitled "GUARANTEE AT TIME OF ADMISSION" and contains the following provision:

"In consideration for the services to be provided to the patient, the undersigned promise(s) to pay Boca Raton Community Hospital, Inc., and any physician providing services during the period of this admission, all amounts due for services so rendered, which payment shall be due in full at the time of discharge. The undersigned further understands that all accounts not paid in full within [sic] forty-five (45) days of the dates of discharge shall bear interest at the highest rate permitted by law, which interest shall be added to the unpaid balance. In the event it is necessary to refer this account to a collection agency or an attorney, the undersigned further agrees to pay all reasonable costs of collection, including reasonable attorney's fees." [emphasis supplied.]

Specifically, he argues that the underlined text is not as broad as the costs/fees agreement at issue in Wilson v. Rose Printing Co. Inc., 624 So.2d 257 (Fla.1993), and that applying a strict construction to the present agreement, the court must conclude that fees are not included within the term costs. In Wilson, the agreement provided:

"In connection with any litigation arising out of this agreement the prevailing party shall be entitled to recover all costs incurred, including reasonable attorney's fees for such litigation and any subsequent appeals."

624 So.2d at 258. Sholkoff argues that the Wilson agreement applied to "all" costs, while the hospital's form in this case applies merely to "costs of collection." In essence, Sholkoff reasons that when this agreement is "strictly" construed, it cannot be deemed to include attorney's fees as a cost of collection.

In this case we focus our attention on agreements between separate parties providing that one party will bear the cost of the other party's costs and attorney's fees incurred in a specific matter between them. These agreements are in the nature of indemnification. That is to say, the party having the right under an agreement to recover attorney's fees for a particular matter from another party usually is obligated in the first instance to the party's own attorney handling the matter. The party having the right of recovery may indeed actually have to compensate the attorney during the handling of the matter. The right of recovery, therefore, usually follows the conclusion of the matter and is in the nature of restoring to the party having the right the cost of the attorney's fee so incurred, as long as it is reasonable. We note that in indemnity actions an indemnitee is generally entitled to recover as part of general damages the reasonable cost of an attorney for the matter. See, e.g., American and Foreign Ins. Co. v. Avis Rent-A-Car System Inc., 401 So.2d 855 (Fla. 1st DCA 1981); Brown v. Financial Indem. Co., 366 So.2d 1273 (Fla. 4th DCA), cert. denied, 378 So.2d 342 (Fla.1979). In that instance, the law has no difficulty in implying an obligation to pay the attorney's fees of another.

We understand Sholkoff to mean, by his argument of strict construction, that all contracts for attorney's fees must, at least initially, be construed against an award of fees. This notion seems to be an adage without a clear origin. 3 Sholkoff cites our decision in Fairways Royale Ass'n Inc. v. Hasam Realty Corp., 428 So.2d 288 (Fla. 4th DCA 1983), to support the proposition that agreements for another party's attorney's fees must be strictly construed. In Fairways, a condominium association was obligated under a lease that contained a provision for the lessee to pay attorney's fees if the lessor sued for rent. When the lessor sued for unpaid rent, the association counterclaimed for damages on the theory that the rent provided in the lease was excessive and should be reduced. The lessor prevailed on the claim for rent accumulated in the court registry during the suit, but the association lost after a trial on its counterclaim. The lessor then sought attorney's fees under the lease provision for the entire case, which the trial court awarded.

On appeal, we reversed any award for defense of the counterclaim, reasoning that the attorney's fee provision in the lease provided for fees only in an action to collect unpaid rent, but not in defense of the counterclaim. As we explained:

"For the purposes of awarding attorneys' fees, each claim or permissive counterclaim must be...

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