MICHAEL E. DAM, APPELLANT,
v.
HEART OF FLORIDA HOSPITAL, INC., A FLORIDA NONPROFIT CORPORATION, MARY T. ERDE, GUILLERMO ALLENDE, ROBERT E. LEE, FRANK THORNTON, FRANK SNYDLE, AND DAVID GREEN, SR., APPELLEES
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A physician appealed a trial court's award of attorney's fees and costs to a hospital after he voluntarily dismissed his lawsuit challenging the suspension of his hospital staff privileges. The court affirmed, holding that the hospital was a 'prevailing defendant' entitled to recover fees under Florida's medical malpractice reform statute, even though the case was dismissed without resolution on the merits.
Yes. A defendant may be awarded attorney's fees and costs as a 'prevailing defendant' under the statute when a case is voluntarily dismissed, even where the case was not resolved on the merits, provided the statute authorizes such an award.
[1] A voluntary dismissal of a lawsuit does not preclude an award of attorney's fees and costs to a prevailing defendant if authorized by statute.
[2] Statutory provisions governing disciplinary actions against hospital staff members, including awards of attorney's fees to prevailing defendants, preempt other available…
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Join FLexlaw to unlock all legal intelligence“attorney's fees can be awarded to a so-called 'prevailing party' if authorized by statute, even where the case was not resolved on the merits and was instead voluntarily dismissed”
Establishes the core holding that statutory authorization for attorney's fees to prevailing parties does not require resolution on the merits
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Join FLexlaw to unlock all legal intelligenceDr. Michael E. Dam sued Heart of Florida Hospital and its officials for wrongfully suspending his hospital staff privileges. The trial court denied hi…
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SCHEB, Acting Chief Judge.
Appellant, Michael E. Dam, M.D., argues that the trial court erred in requiring him to pay attorney’s fees and court costs after he voluntarily dismissed his suit challenging suspension of his hospital staff privileges. We disagree.
Dam sued Appellees Heart of Florida Hospital, Inc., its administrator, and members of its executive committee and board of governors, claiming that his hospital staff privileges were wrongfully suspended. The court denied his request for a temporary injunction.
Appellees filed various pretrial motions along with a request that Dam post bond in an amount sufficient to pay attorney’s fees and costs pursuant to section 395.-0115(5)(b), Florida Statutes (1987). After a hearing on the motions and bond request but before the trial judge ruled, appellant voluntarily dismissed his suit. The dismissal was without prejudice. See Fla.R.Civ. P. 1.420(a)(1). The trial court awarded appellees attorney’s fees and costs as authorized by section 395.0115(5)(a).
On appeal, Dam raises three issues concerning the trial court’s award of attorney’s fees and costs. We find none of his arguments meritorious, but we discuss briefly his contention that the trial court improperly determined that appellees were “prevailing defendants” as a matter of law.
In response to a perceived crisis in the delivery of medical services and the need for cost containment, the legislature amended section 395.0115 in 1985 as part of its overall reform of the medical malpractice statutes. See Ch. 85-175, Laws of Fla. The amended statute details a procedure for licensed health care facilities to follow when disciplining staff members for alleged misconduct. Subsection (2) grants the hospital, its medical staff, governing board, and other individuals immunity from monetary liability for their participation in internal disciplinary proceedings. Subsection 5(b) requires staff members who contest disciplinary actions to post a bond or other security, and subsection 5(a) awards attorney’s fees and costs to “prevailing defendants.” We think the statute, as amended, is preemptive of other means available to challenge disciplinary actions.
Dam argues that the trial court erred in finding that appellees were “prevailing parties” as a matter of law because the record does not establish that appellees would have prevailed on the merits. We disagree. The trial judge correctly relied on our opinions in Jackson v. Hatch, 288 So. 2d 564 (Fla. 2d DCA 1974), and 51 Island Way Condominium Ass’n, Inc. v. Williams, 458 So. 2d 364 (Fla. 2d DCA 1984), where we stated that attorney’s fees can be awarded to a so-called “prevailing party” if authorized by statute, even where the case was not 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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Alhambra Homeowners Ass'n, Inc. v. Adnan Asad, 943 So. 2d 316 (Fla. 4th DCA 2006)…o decide whether the dismissal represents “an end or finality to the litigation on the merits.” Both the second and fifth districts have rejected the Simmons approach to prevailing party attorney’s fee statutes. See Dam v. Heart of Fla. Hosp., Inc., 536 So. 2d 1177 (Fla. 2d DCA 1989); Vidibor v. Adams, 509 So. 2d 973 (Fla. 5th DCA 1987). Dam involved a plaintiff doctor who brought suit against a hospital which suspended his staff privileges. The plaintiff voluntarily dismissed his suit without prejudice. The…
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Rose Printing Co., Inc. v. Wilson, 602 So. 2d 600 (Fla. 1st DCA 1992)…Hosp., Inc., 506 So. 2d 423, 424 (Fla. 3d DCA 1987) (en banc); Mega Bank v. Telecredit Serv. Center, 592 So. 2d 755 (Fla. 3d DCA 1992); and Goldstein v. Richter, 538 So. 2d 473, 475 (Fla. 4th DCA 1989). But see, Dam v. Heart of Florida Hosp., Inc., 536 So. 2d 1177, 1178 (Fla. 2d DCA 1989); and Vidibor v. Adams, 509 So. 2d 973, 974 (Fla. 5th [*604] DCA 1987) (rejecting Simmons). Because the fee award in this case flows from the parties’ agreement to treat fees as taxable costs, and not from a statute awarding…
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Ajax Paving Indus., Inc. v. The Hardaway Co., 824 So. 2d 1026 (Fla. 2d DCA 2002)…defendant is deemed the prevailing party for purposes of attorney’s fees. Thomber v. City of Ft. Walton Beach, 568 So. 2d 914, 919 (Fla.1990); see also Prescott v. Anthony, 803 So. 2d 835, 836-37 (Fla. 2d DCA 2001); Dam v. Heart of Fla. Hosp., Inc., 536 So. 2d 1177, 1178 (Fla. 2d DCA 1989); Landry, 731 So. 2d at 139-40; Oakwood Plaza, L.P. v. D.O.C. Optics Corp., 708 So. 2d 959, 960 (Fla. 4th DCA 1998). This is true despite the fact the case has not been resolved on the merits. Thomber, 568 So. 2d at 919; Dam,…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ronald Jackson and Joanne v. Jackson, 288 So. 2d 564 (Fla. 2d DCA 1974)
- Simmons v. Lawrence Schimmel, M.D., 476 So. 2d 1342 (Fla. 3d DCA 1985)
- 51 Island WAY Condo. Ass'n, Inc. v. Williams, 458 So. 2d 364 (Fla. 2d DCA 1984)
- Cesar Enrique Guerrero, M.D. & Cesar Enrique Guerrero, M.D., P.A. v. Azucena Fonte, 507 So. 2d 620 (Fla. 3d DCA 1987)
- Englander v. ST. Francis Hosp., Inc., 506 So. 2d 422 (Fla. 3d DCA 1986)
- D'Amato v. Feldman Printing Grp., Inc., 519 So. 2d 742 (Fla. 3d DCA 1988)
- George Mekras, M.D. v. Marlow, 519 So. 2d 742 (Fla. 3d DCA 1988)