Simmons v. Schimmel
| Decision Date | 08 October 1985 |
| Docket Number | No. 85-403,85-403 |
| Parties | 10 Fla. L. Weekly 2319 James E. SIMMONS, as Personal Representative of the Estate of Ella Simmons, deceased, Appellant, v. Lawrence SCHIMMEL, M.D., Appellee. |
| Court | Florida District Court of Appeals |
High, Stack, Lazenby, Palahach & Lacasa and Robert Tilghman, Coral Gables, for appellant.
Burt E. Redlus, Miami, for appellee.
Before BARKDULL, HUBBART and NESBITT, JJ.
The plaintiff appeals an order awarding attorney's fees following his voluntary dismissal of a wrongful death action against the defendant-appellee. We reverse.
A wrongful death action was filed by the plaintiff alleging medical malpractice in the care and treatment rendered by Baptist Hospital of Miami and certain other defendants, including Lawrence Schimmel, M.D., the appellee herein. After extensive discovery was had, the cause was set for trial on December 6, 1982. Prior to empaneling the jury, the plaintiff voluntarily dismissed, without prejudice, all the defendants except Baptist Hospital. This was allegedly a strategic move on the part of the plaintiff in an attempt to reduce the possibility of jury confusion from multiple defendants.
Subsequently, the defendant-appellee filed a motion seeking attorney's fees pursuant to section 768.56, Florida Statutes (1981) and section 57.105, Florida Statutes (1981). The trial court determined that the defendant-appellee was entitled to attorney's fees and on January 21, 1985 awarded them in the amount of $17,362.50 against the plaintiff. 1 This appeal followed.
The statute in chapter 768 provides in pertinent part:
Except as otherwise provided by law, the court shall award a reasonable attorney's fee to the prevailing party in any civil action which involves a claim for damages by reason of injury, death, or monetary loss on account of alleged malpractice by any medical or osteopathic physician, podiatrist, hospital, or health maintenance organization.... [emphasis added]
§ 768.56, Fla.Stat. (1981). The Florida supreme court has recently acknowledged that the intent of the legislature in passing this statute was to discourage nonmeritorious medical malpractice claims. Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145, 1147 (Fla.1985). See ch. 80-67, Laws of Fla. Keeping the purpose of section 768.56 in mind, the sole issue in the present medical malpractice case is whether the defendant-appellee is a "prevailing party" within the meaning of the statute. 2 We find that he is not and reverse the award.
One well-established rule of construction is that when a statute does not specifically define words of common usage, such words are to be construed in accordance with their plain and ordinary meaning. See State v. Cormier, 375 So.2d 852 (Fla.1979); State v. Stewart, 374 So.2d 1381 (Fla.1979); Graham v. State, 362 So.2d 924 (Fla.1978). The term "prevailing party" has been defined as:
The party ultimately prevailing when the matter is finally set at rest.... To be such does not depend upon the degree of success at different stages of the suit, but whether, at the end of the suit, or other proceeding, the party who has made a claim against the other, has successfully maintained it.
Black's Law Dictionary 1069 (5th ed. 1979). Thus, the plain and ordinary meaning of "prevailing party" requires that there be some end or finality to the litigation on the merits.
In rendering this decision we are mindful of our pronouncement in State, Department of HRS v. Hall, 409 So.2d 193, 195 (Fla. 3d DCA 1982), that "a merits determination is not a prerequisite to an award of attorney's fees where the statute provides that they will inure to the party who prevails." We point out, however, that in Hall and the cases that have quoted this passage and upheld fee awards, there has been an actual end to the litigation on the merits so that it could be determined whether or not the party had "prevailed." See Hall, 409 So.2d at 195 (). See also Metropolitan Dade County v. Evans, 474 So.2d 392 (Fla. 3d DCA 1985) (); 51 Island Way Condominium Association v. Williams, 458 So.2d 364 (Fla. 2d DCA 1984) (). Thus, although a formal merits determination is not necessary to support a fee award made pursuant to a statute allowing the award to the prevailing party, there must be some end to the litigation on the merits so that the court can determine whether the party requesting fees has prevailed. 3
The present case is analogous to Del Valle v. Biltmore II Condominium Association, 411 So.2d 1356 (Fla. 3d DCA 1982), wherein this court reversed an attorney's fee award. In Del Valle the condominium association filed suit seeking enforcement of a provision in the declaration of condominium which prohibited persons under the age of twelve years to permanently reside in the condominium. The defendant answered the complaint raising a variety of affirmative defenses and demanded a jury trial. Prior to the trial, the case was dismissed as moot because the child was no longer living in the condominium. Thereafter, the trial court awarded attorney's fees to the association pursuant to section 718.303(1), Florida Statutes (1979). 4 This court reversed, holding:
Where, as here, the unit owner denies each and every material allegation in a complaint for injunctive relief and, additionally, interposes affirmative defenses including defenses of selective and discriminatory enforcement and estoppel, which, if proved at time of trial, would have precluded the Association from obtaining the relief requested, we have no basis for concluding that the Association was the prevailing party where the dismissal for mootness was unrelated to the merits of the case. [footnote omitted]
Likewise, in the present case, there is no basis to conclude that the defendant-appellee is the prevailing party. The plaintiff had an expert witness who would have given testimony tending to establish liability on the part of the defendant-appellee. The affidavit and deposition testimony of the plaintiff's expert indicated that the defendant-appellee's diagnosis and treatment of the plaintiff's decedent fell below the standard of care expected in the community. Furthermore, as in Del Valle, the plaintiff insists that the voluntary dismissal was not related to the merits of the case, but rather was a strategic move to avoid jury confusion. There is nothing in the record which refutes this claim and the defendant-appellee has not argued otherwise. Accordingly, the fee award cannot be upheld under section 768.56.
The defendant-appellee also requested fees pursuant to section 57.105, Florida Statutes (1981). This section...
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