GEORGE MEKRAS, M.D., APPELLANT,
v.
HOWARD MARLOW AND LINDA MARLOW, HIS WIFE, APPELLEES
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PER CURIAM.
This is an appeal from a trial court order denying the defendant George Mekras’ motion for attorney’s fees under Section 768.-56(1), Florida Statutes (1983), after the plaintiffs Howard-and Linda Marlow voluntarily dismissed their medical malpractice action against the above defendant. We affirm the order appealed from because, on this record, there is no showing that “had not the voluntary dismissal intervened, the case would have concluded with a summary judgment in [the defendant Mekras’] favor.” Englander v. St. Francis Hospital, Inc., 506 So. 2d 423, 424 (Fla. 3d DCA 1987). Contrary to the defendant’s argument on appeal, the plaintiffs did have expert medical witnesses to support their claim and only dismissed the action because they were unable to produce these witnesses for a defense deposition within the time set by the trial court; indeed, the plaintiffs, armed with these witnesses, have since refiled the instant action against the defendant, and the said action remains pending below.
Affirmed.
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Kumar v. Embassy Kosher Tours, Inc., 696 So. 2d 393 (Fla. 3d DCA 1997)…each of contract “accrues” where the repudiation takes place, Perry Bldg. Sys., Inc. v. Hayes & Bates, Inc., 361 So. 2d 443 (Fla. 1st DCA 1978)(aetion for anticipatory breach accrues at place of repudiation); D’Amato v. Feldman Printing Group, Inc., 519 So. 2d 742 (Fla. 3d DCA 1988) (same; citing Perry, 361 So. 2d at 443); St. Laurent v. Resort Marketing Assocs., 399 So. 2d 362 (Fla. 2d DCA 1981)(same), or — as it contends — only where the agreement was to be performed. Williams Steel Indust. v. Taylor Woodro…
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DAM v. Heart OF Fla. Hosp., Inc., 536 So. 2d 1177 (Fla. 2d DCA 1989)…t resolved on the merits and was instead voluntarily dismissed. We do not find persuasive Dam’s argument that we should adopt the third district’s contrary view. See Simmons v. Schimmel, 476 So. 2d 1342 (Fla. 3d DCA 1985). See also Mekras v. Marlow, 519 So. 2d 742 (Fla. 3d DCA 1988); Guerrero v. Fonte, 507 So. 2d 620 (Fla. 3d DCA 1987); Englander v. St. Francis Hosp., Inc., 506 So. 2d 422 (Fla. 3d DCA 1986). AFFIRMED. SCHOONOVER and FRANK, JJ., concur.…
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Mega Bank v. Telecredit Serv. Ctr., 592 So. 2d 755 (Fla. 3d DCA 1992)…howing as to whether the case would have resulted in summary judgment, “is to be based on the record made and discovery completed as of the moment of dismissal.” Englander v. St. Francis Hospital, Inc., 506 So. 2d at 424. See also, Mekras v. Marlow, 519 So. 2d 742 (Fla. 3d DCA 1988) (affirming order denying defendants’ motion for attorney fees following voluntary dismissal because no showing in record that summary judgment could have been entered in favor of defendant). Here, Telecredit was not a prevail [*75…
Authorities Cited
- Englander v. ST. Francis Hosp., Inc., 506 So. 2d 423 (Fla. 3d DCA 1987)