Hoeltzell v. Erenstoft

District Court of Appeal of Florida

Hoeltzell v. Erenstoft

985 So. 2d 636, 2008 Fla. App. LEXIS 9094, 2008 WL 2436178

CourtDistrict Court of Appeal of Florida

DecidedJune 18, 2008

DocketNo. 4D07-4186

StatusPublished

Cited by3 cases

This text of 985 So. 2d 636 (Hoeltzell v. Erenstoft) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Hoeltzell v. Erenstoft, 985 So. 2d 636, 2008 Fla. App. LEXIS 9094, 2008 WL 2436178 (Fla. Ct. App. 2008).

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Opinion

KLEIN, J.

We affirm the order granting the motion of the plaintiff in this medical malpractice case to strike the physician’s pleadings for failing to comply with the presuit provisions of section 766.206, Florida Statutes (2007). It is undisputed that the physician violated section 766.206(3) in that he did not, in his pro se response to the claim, include an affidavit of an expert [637]*637witness. In addition, the trial court noted that the plaintiff lost the opportunity to identify additional defendants, prior to the running of the statute of limitations, because of the physician’s failure to timely respond.

We deny plaintiffs motion for appellate attorney’s fees, grounded on section 766.206(3), which provides in part:

The person who mailed such response, whether the defendant, the defendant’s insurer, or the defendant’s attorney, shall be personally liable for all attorney’s fees and costs incurred during the investigation and evaluation of the claim, including the reasonable attorney’s fees and costs of the claimant.

Because fee statutes are strictly construed, Campbell v. Goldman, 959 So.2d 223 (Fla.2007), and the statute does not authorize appellate fees, we deny plaintiffs motion for appellate attorney’s fees. Rodriguez v. Campbell, 778 So.2d 511, 512 (Fla. 4th DCA 2001) (limiting fees under the same statute for trial court work to fees incurred “during the investigation and evaluation.”)

Affirmed.

STONE and FARMER, JJ., concur.

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KLEIN, J.

We affirm the order granting the motion of the plaintiff in this medical malpractice case to strike the physician’s pleadings for failing to comply with the presuit provisions of section 766.206, Florida Statutes (2007). It is undisputed that the physician violated section 766.206(3) in that he did not, in his pro se response to the claim, include an affidavit of an expert [637]*637witness. In addition, the trial court noted that the plaintiff lost the opportunity to identify additional defendants, prior to the running of the statute of limitations, because of the physician’s failure to timely respond.

We deny plaintiffs motion for appellate attorney’s fees, grounded on section 766.206(3), which provides in part:

The person who mailed such response, whether the defendant, the defendant’s insurer, or the defendant’s attorney, shall be personally liable for all attorney’s fees and costs incurred during the investigation and evaluation of the claim, including the reasonable attorney’s fees and costs of the claimant.

Because fee statutes are strictly construed, Campbell v. Goldman, 959 So.2d 223 (Fla.2007), and the statute does not authorize appellate fees, we deny plaintiffs motion for appellate attorney’s fees. Rodriguez v. Campbell, 778 So.2d 511, 512 (Fla. 4th DCA 2001) (limiting fees under the same statute for trial court work to fees incurred “during the investigation and evaluation.”)

Affirmed.

STONE and FARMER, JJ., concur.

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985 So. 2d 636, 2008 Fla. App. LEXIS 9094, 2008 WL 2436178, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hoeltzell-v-erenstoft-fladistctapp-2008.

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