Schmieder v. Nlc America

Opinion

Third District Court of Appeal State of Florida

Opinion filed December 10, 2014.

Not final until disposition of timely filed motion for rehearing.

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No. 3D14-909

Lower Tribunal No. 09-41553

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Carieann M. Schmieder,

Appellant,

vs.

NCL America, Inc.,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Stanford Blake, Judge.

Lipcon, Margulies, Alsina & Winkleman, and Michael A. Winkleman and Jacqueline Garcell, for appellant.

McAlpin Conroy, and Richard J. McAlpin and Kassandra C. Doyle, for appellee.

Before SHEPHERD, C.J., and ROTHENBERG and EMAS, JJ.

SHEPHERD, C.J.

Carieann M. Schmieder appeals from orders dismissing her negligence claim for fraud on the court and a final judgment awarding NCL America, Inc., attorney’s fees and costs. Finding no abuse of discretion, we affirm the order dismissing Ms. Schmieder’s claim. NCL America, Inc., however, has conceded error in the award of attorney’s fees and costs predicated upon section 768.79, Florida Statutes (2013), which this Court has ruled inapplicable in admiralty cases. See Royal Caribbean Cruises, Ltd. v. Cox, 137 So. 3d 1157 (Fla. 3d DCA 2014), rev. dismissed, 145 So. 3d 822 (Fla. 2014).1 Accordingly, we reverse the judgment awarding attorney’s fees and remand the award of costs to the trial court for reconsideration.

Affirmed in part; reversed in part; and remanded.

1 The trial court did not have the benefit of this Court’s holding in Cox.