JACK LIEBELER A/K/A JOHN LIEBELER AND LOIS LIEBELER, APPELLANTS/CROSS-APPELLEES,
v.
RAYMOND E.P. ZIMMERMAN, M.D., RAYMOND E.P. ZIMMERMAN, M.D., P.A., AND MEASE HOSPITAL AND CLINIC, APPELLEES/ CROSS-APPELLANTS
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In a medical malpractice case, the appellants won a jury verdict but were denied attorney's fees because the statute authorizing such fees had been repealed before they became prevailing parties. The court held that the right to attorney's fees vested when the cause of action accrued, not when the party prevailed, and therefore the appellants remained entitled to fees despite the statutory repeal.
The appellants retained their right to attorney's fees because that right vested when the cause of action accrued in 1983, while section 768.56 was in effect. The subsequent repeal of the statute did not extinguish rights that had already vested. The trial court's determination of the fee amount of $231,600 was not an abuse of discretion.
[1] A prevailing party's right to attorney's fees in a medical malpractice action vests on the date the cause of action accrues, even if the governing statute is later repeal…
[2] A statutory repeal of attorney's fees provisions does not extinguish a prevailing party's right to fees if the cause of action accrued while the statute was in effect.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the prevailing party's right to attorney's fees in medical negligence actions vested on the date the cause of action accrued”
Establishes the critical legal principle that determines when the right to fees became fixed, independent of when the party actually prevailed.
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Join FLexlaw to unlock all legal intelligenceThe appellants filed a medical malpractice action in April 1985 based on a cause of action that accrued in 1983. Section 768.56, Florida Statutes (198…
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SCHOONOVER, Judge.
The appellants, cross-appellees, Jack Lie-beler, a/k/a John Liebeler, and Lois Liebeler (appellants) appeal the trial court’s denial of their motion for attorney’s fees. The appellees, cross-appellants, Raymond E.P. Zimmerman, M.D., Raymond E.P. Zimmerman, M.D., P.A., and Mease Hospital and Clinic (appellees), cross-appeal the court’s determination of the amount of attorney’s fees. Although we find that the court did not abuse its discretion in establishing the amount of attorney's fees, we find it erred in denying the appellants’ request for attorney’s fees. We, accordingly, affirm in part and reverse in part.
In April 1985 the appellants filed a medical malpractice action against the appel-lees. Their complaint was based upon a cause of action which accrued in 1983 while section 768.56, Florida Statutes (1983) was in effect. This section provided for the award of reasonable attorney’s fees to the prevailing party in a medical malpractice action. During the pendency of the action, however, the legislature repealed section 768.56. Ch. 85-175, § 43, Laws of Fla. The repealing act specified October 1,1985, as the effective date and explicitly provided that its provisions would not apply to actions filed on or before the effective date. Ch. 85-175, §§ 55, 48, Laws of Fla. After a jury trial in September 1986 resulted in a verdict for the appellants, they moved for attorney’s fees pursuant to section 768.56. After an evidentiary hearing, the trial court entered an order finding that a reasonable attorney’s fee for the appellants’ attorneys amounted to $231,600. The court then held, however, that the appellants were not entitled to an award of those fees because section 768.56 had been repealed before the appellants had become prevailing parties. This timely appeal and cross-appeal followed. (The appellees have separately appealed the final judgment, but the appeals have not been consolidated.)
After the trial court’s ruling in this case, this court in Umbel v. Upadhyaya, 508 So. 2d 32 (Fla. 2d DCA 1987), addressed the same issue which is involved in this matter. In Umbel, we relied on the supreme court’s decision in Young v. Altenhaus, 472 So. 2d 1152 (Fla.1985), and held that the prevailing party’s right to attorney’s fees in medical negligence actions vested on the date the cause of action accrued. Since the appellants’ cause of action here accrued in 1983, while section 768.56 was in effect, their right to an award of reasonable attorney’s fees as prevailing parties was not extinguished by the subsequent repeal of the statute. See Umbel; Neviaser v. Stone, 510 S.2d 636 (Fla. 3d DCA 1987). We, therefore, reverse the order denying the appellants’ motion for attorney’s fees.
After having considered the criteria set forth by the supreme court in Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla.1985), we find no error in the court’s determination of the amount of the attorney’s fees and, accordingly, affirm that determination. We, therefore, remand with directions to enter an order awarding attorney’s fees to the appellants if they are ultimately the prevailing parties in the action.
Affirmed in part, reversed in part, and remanded.
RYDER, A.C.J., and LEHAN, J., concur.
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Asa L. Godbey, Jr., M.D. v. Walsh, 530 So. 2d 343 (Fla. 1st DCA 1988)…aus, 472 So. 2d 1152 (Fla.1985), the Supreme Court held that the statute created a substantive right to fees. See also Neviaser v. Stone, 510 So. 2d 636 (Fla. 3d DCA 1987); Umbel v. Upadhyaya, 508 So. 2d 32 (Fla. 2d DCA 1987); Liebeler v. Zimmerman, 513 So. 2d 1310 (Fla. 2d DCA 1987). In the case sub judice; the cause of action arose in 1983. Suit was filed in August 1984. Although we have considered appellant’s contrary argument, we are persuaded that the Supreme Court’s reasoning in Altenhaus remains applica…
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Winter Park Mem'l Hosp. Ass'n, Inc. v. Jemison, 514 So. 2d 1134 (Fla. 5th DCA 1987)…Roberts Construction Co., Inc., 466 So. 2d 1096 (Fla. 5th DCA 1985), affirmed, 481 So. 2d 484 (Fla.1986). See also Neviaser v. Stone, 510 So. 2d 636 (Fla. 3d DCA 1987); Umbel v. Upadkyaya, 508 So. 2d 32 (Fla. 2d DCA 1987) and Liebeler v. Zimmerman, 513 So. 2d 1310 (Fla. 2d DCA 1987). AFFIRMED. COBB, J. and LEE, R.E., Jr., Associate Judge, concur.…
Authorities Cited
- Fla. Patient's Comp. Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985)
- Jerrold Young v. Fern Altenhaus, 472 So. 2d 1152 (Fla. 1985)
- Umbel v. Dipakkumar M. Upadhyaya, 508 So. 2d 32 (Fla. 2d DCA 1987)