Mejia v. United Automobile Insurance Co.

District Court of Appeal of Florida

Mejia v. United Automobile Insurance Co.

83 So. 3d 897, 2012 WL 469810, 2012 Fla. App. LEXIS 2168

CourtDistrict Court of Appeal of Florida

DecidedFebruary 15, 2012

Docket3D11-2985

StatusPublished

Cited by1 cases

This text of 83 So. 3d 897 (Mejia v. United Automobile Insurance Co.) 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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Mejia v. United Automobile Insurance Co., 83 So. 3d 897, 2012 WL 469810, 2012 Fla. App. LEXIS 2168 (Fla. Ct. App. 2012).

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Opinion

LAGOA, J.

Pursuant to Florida Rule of Appellate Procedure 9.040(c), we treat the motion for review filed in the instant case as a petition for writ of certiorari, grant the petition, and quash the order below. See Ramirez v. United Auto. Ins. Co., 67 So.3d 1174 (Fla. 3d DCA 2011) (finding that circuit court appellate division order denying appellate attorney’s fees was properly reviewed pursuant to first-tier certiorari).

Mario Mejia (“Mejia”) filed .suit against United Auto in the county court seeking payment of medical bills pursuant to the personal injury protection section of his auto insurance policy. Mejia voluntary dismissed his lawsuit against United Auto, without prejudice. United Auto subsequently obtained a cost judgment against Mejia in the county court, and Mejia appealed the cost judgment to the circuit court’s appellate division. United Auto sought appellate attorney’s fees in the circuit court, arguing that it was entitled to *898 fees pursuant to section 768.79, Florida Statutes (2011), the offer of judgment statute. The circuit court affirmed the cost judgment, and in a separate order awarded United Auto appellate attorney’s fees. Mejia seeks review of the circuit court’s order awarding United Auto appellate attorney’s fees.

United Auto concedes, and we agree, that the order on review must be quashed. United Auto is not entitled to an award of appellate attorney’s fees pursuant to section 768.79, because Mejia’s voluntary dismissal of his case was without prejudice. See MX Invs., Inc. v. Crawford, 700 So.2d 640 (Fla.1997); Smith v. Loews Miami Beach Hotel Operating Co., 35 So.3d 101 (Fla. 3d DCA 2010). The circuit court’s award of appellate attorney’s fees to United Auto under these circumstances was a departure from the essential requirements of the law. See Ramirez, 67 So.3d at 1176; Guadagno v. United Auto. Ins. Co., — So.3d -, 2011 WL 4949820 (Fla. 3d DCA 2011).

Accordingly, we grant the petition for certiorari, and quash the circuit court’s order awarding United Auto appellate attorney’s fees.

Petition granted.

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LAGOA, J.

Pursuant to Florida Rule of Appellate Procedure 9.040(c), we treat the motion for review filed in the instant case as a petition for writ of certiorari, grant the petition, and quash the order below. See Ramirez v. United Auto. Ins. Co., 67 So.3d 1174 (Fla. 3d DCA 2011) (finding that circuit court appellate division order denying appellate attorney’s fees was properly reviewed pursuant to first-tier certiorari).

Mario Mejia (“Mejia”) filed .suit against United Auto in the county court seeking payment of medical bills pursuant to the personal injury protection section of his auto insurance policy. Mejia voluntary dismissed his lawsuit against United Auto, without prejudice. United Auto subsequently obtained a cost judgment against Mejia in the county court, and Mejia appealed the cost judgment to the circuit court’s appellate division. United Auto sought appellate attorney’s fees in the circuit court, arguing that it was entitled to *898 fees pursuant to section 768.79, Florida Statutes (2011), the offer of judgment statute. The circuit court affirmed the cost judgment, and in a separate order awarded United Auto appellate attorney’s fees. Mejia seeks review of the circuit court’s order awarding United Auto appellate attorney’s fees.

United Auto concedes, and we agree, that the order on review must be quashed. United Auto is not entitled to an award of appellate attorney’s fees pursuant to section 768.79, because Mejia’s voluntary dismissal of his case was without prejudice. See MX Invs., Inc. v. Crawford, 700 So.2d 640 (Fla.1997); Smith v. Loews Miami Beach Hotel Operating Co., 35 So.3d 101 (Fla. 3d DCA 2010). The circuit court’s award of appellate attorney’s fees to United Auto under these circumstances was a departure from the essential requirements of the law. See Ramirez, 67 So.3d at 1176; Guadagno v. United Auto. Ins. Co., — So.3d -, 2011 WL 4949820 (Fla. 3d DCA 2011).

Accordingly, we grant the petition for certiorari, and quash the circuit court’s order awarding United Auto appellate attorney’s fees.

Petition granted.

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83 So. 3d 897, 2012 WL 469810, 2012 Fla. App. LEXIS 2168, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mejia-v-united-automobile-insurance-co-fladistctapp-2012.

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