A. Carlo Guadagno, D.C., P.A. v. United Automobile Insurance

88 So. 3d 246, 2011 WL 4949820, 2011 Fla. App. LEXIS 16504

• Court: District Court of Appeal of Florida
• Decided: October 19, 2011
• Docket: No. 3D11-1419
• Status: Published

Opinion

EMAS, J.

Upon review of the petition and the response, this Court grants the petition for writ of certiorari and quashes the circuit court’s order denying West Kendall Chiropractic Center’s motion for appellate attorney’s fees. Respondent concedes, and we agree, that the circuit court, acting in its appellate capacity, should have awarded petitioner appellate attorney’s fees, pursuant to section 627.428(1), Florida Statutes (1982), conditioned upon petitioner prevailing in the underlying proceedings. The failure to do so was a departure from the essential requirements of law. See Ramirez v. United Auto. Ins. Co., 67 So.3d 1174 (Fla. 3d DCA 2011); Comprehensive Health Center, LLC v. United Auto. Ins. Co., — So.3d —, 2011 WL 2848667 (Fla. 3d DCA 2011); Allstate Insurance Company v. De La Fe, 647 So.2d 965 (Fla. 3d DCA 1994).

The order denying motion for appellate attorney’s fees is quashed and this cause is remanded to the circuit court for entry of an order conditionally granting petitioner’s motion for appellate attorney’s fees.

Petition granted.