State Farm Mutual Automobile Insurance Co. v. Pro Health Pain Relief Center, Inc.

185 So. 3d 712, 2016 Fla. App. LEXIS 2234, 2016 WL 628404

• Court: District Court of Appeal of Florida
• Decided: February 17, 2016
• Docket: 3D15-2806
• Status: Published

Opinion

SHEPHERD, J.

' State Fárm Automobile Insurance Company petitions this Court for a writ of certiorari to review an order of the Eleventh Judicial Circuit of Miami-Dade County, sitting in its appellate capacity, unconditionally granting respondent’s, Pro Health Pain Relief Center, Inc. a/a/o Arturo Perez, motion for appellate attorney’s fees. Respondent concedes below, and we agree, that “the award of appellate attorney’s fees/ pursuant to section 627.428(1), Florida Statutes, should have been conditioned upon respondent ultimately prevailing in the underlying proceeding.” Mercury Ins. Co. of Fla. v. RPM Medical Ctr., 89 So.3d 261, 262 (Fla. 3d DCA 2012) (citing Guadagno v. United Auto. Ins. Co., 88 So.3d 246 (Fla. 3d DCA 2011)) (other citations' omitted). In Guadagno, this Court held, “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” and “[t]he failure to do so was a departure from the essential requirements of law.” Guadagno at 247.

We therefore grant the petition for writ of certiorari and quash the circuit court appellate division’s order unconditionally granting respondent’s appellate attorney’s fees. We further remand to the appellate division for entry of an order conditionally awarding appellate attorney’s fees to respondent upon its prevailing in the underlying proceedings. ■

Petition granted, order quashed, and case remanded with instructions.