MICHAEL J. SOLIMANDO, SR., AS PERSONAL REPRESENTATIVE OF THE ESTATE OF MARION SOLIMANDO, DECEASED, PETITIONER,
v.
ALOHA MEDICAL CENTER AND WILLIAM J. YOUNG, M.D., RESPONDENTS
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Michael Solimando, personal representative of an estate, filed a medical malpractice suit against Aloha Medical Center and Dr. Young. After his amended complaint was dismissed for failure to comply with statutory notice requirements, Solimando eventually settled with other defendants and voluntarily dismissed against these respondents. The court reversed the trial court's award of attorneys' fees, holding that a voluntary dismissal does not constitute a concession that the complaint was frivolous.
A voluntary dismissal does not constitute a concession that a complaint is frivolous or wholly without basis in law or fact. An award of attorneys' fees under section 57.105 is improper absent a specific determination that the complaint was frivolous. On remand, the trial court must determine whether Solimando's claim against respondents was wholly without basis in law or fact; if so, it may award fees; if not, it must deny the motion.
[1] A voluntary dismissal of a claim does not, in and of itself, constitute a concession of the inability to present a colorable case for purposes of awarding attorney's fees…
[2] An award of attorney's fees under section 57.105, Florida Statutes, requires a determination that the claim was frivolous or wholly without basis in law or fact.
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Join FLexlaw to unlock all legal intelligence“An award under section 57.105 is improper absent such a determination.”
Establishes the legal requirement for frivolousness findings before awarding fees
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Join FLexlaw to unlock all legal intelligenceSolimando sued multiple defendants in a medical malpractice action. In February 1988, the trial court dismissed his amended complaint for non-complian…
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PER CURIAM.
Michael Solimando petitions this court for a writ of certiorari to review an order of the circuit court which awards attorneys’ fees to respondents Aloha Medical center and Dr. William J. Young.1 We grant the petition.
Respondents were among several defendants sued by Solimando in his capacity as personal representative of the estate Marion Solimando. In February, 1988, the trial court dismissed Solimando’s amended complaint for lack of strict compliance with section 768.57, Florida Statutes (1987).2 This statute required prospective medical malpractice plaintiffs to notify defendants by certified mail at least 90 days beforehand of their intention to file suit. Soli-mando sent his notices by regular mail, and some defendants asserted they received no notice at all.
Nevertheless the order of dismissal was reversed. Solimando v. International Medical Centers, 544 So. 2d 1031 (Fla. 2d DCA), rev. dismissed, 549 So. 2d 1013, 550 So. 2d 467 (Fla.1989), 557 So. 2d 866 (Fla.1990). This court held, inter alia, that principles of estoppel and waiver may be considered by the trial court to excuse noncompliance with the statute. of While review was pending in the supreme court Solimando settled with the remaining defendants and took a voluntary dismissal against respondents. Respondents then moved for attorneys’ fees pursuant to section 57.105, Florida Statutes (1989).
The trial court granted the motion. Its order does not specifically state that Solimando’s complaint was frivolous, but an award under section 57.105 is improper absent such a determination. Muckenfuss v. Deltona Corp., 508 So. 2d 340 (Fla.1987); Whitten v. Progressive Casualty Ins. Co., 410 So. 2d 501 (Fla.1982).
We find no indication from the record that this case involves such a total lack of justiciable issues. The voluntary dismissal against respondents is not in and of itself a concession of inability to present a colorable ease. Executive Centers of America, Inc. v. Durability Seating and Interiors, Inc., 402 So. 2d 24 (Fla. 3d DCA 1981). In fact, the previous appeal in this case and subsequent settlement indicate that Solimando’s claim was not entirely frivolous, at least as to some of the defendants. Cf. Fireman’s Fund Ins. Co. v. Rojas, 447 So. 2d 1023 (Fla. 3d DCA 1984).
Accordingly, the petition for writ of certiorari is granted, the order under review is quashed, and this matter is remanded to the circuit court for further proceedings consistent with this opinion. After remand the trial court should determine whether Solimando’s claim against the respondents is wholly without basis in law or fact. If so, it should enter a proper order to that effect; if not, it should deny respondents’ motion for fees.
Certiorari granted.
SCHOONOVER, C.J., and SCHEB and THREADGILL, JJ., concur. . Certiorari is employed to review this order because it was entered after a non-final and unappealable voluntary dismissal. Chatlos v. City of Hallandale, 220 So. 2d 353 (Fla.1968); delReal v. Dawson, 320 So. 2d 20 (Fla. 4th DCA 1975).
. This section has since been renumbered as § 766.107, Fla.Stat. (1988).
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Sholkoff v. Boca Raton Cmty. Hosp., Inc., 693 So. 2d 1114 (Fla. 4th DCA 1997)…ry dismissal is properly by certiorari. See Rose Printing Co. v. Wilson, 602 So. 2d 600 (Fla. 1st DCA 1992), aff'd, 624 So. 2d 257 (Fla.1993); Barry A Cohen P.A. v. LaTorre, 595 So. 2d 1076 (Fla. 2nd DCA 1992); and Solimando v. Aloha Medical Center, 566 So. 2d 580 (Fla. 2nd DCA 1990), after remand, 594 So. 2d 850 (Fla. 2nd DCA 1992). So too with orders denying costs after the voluntary dismissal. See Wiper Hut Systems Inc. v. Steavens, 626 So. 2d 289 (Fla. 4th DCA 1993); Rose Printing Co. Inc. v. Wilson, 602…
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Solimando v. Aloha Med. Ctr. & William J. Young, M.D., 594 So. 2d 850 (Fla. 2d DCA 1992)…luntarily dismissed from petitioner’s medical malpractice action. The respondents successfully moved for section 57.105 attorneys’ fees. This court granted certiorari review and quashed the order granting fees. See Solimando v. Aloha Medical Center, 566 So. 2d 580 (Fla. 2d DCA 1990) {Solimando II). After remand of Solimando II, respondents renewed their motion seeking section 57.105 attorneys’ fees. The trial court again entered an order granting fees, this time making the requisite finding that the complaint…
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Barry A. Cohen, P.A. v. Latorre, 595 So. 2d 1076 (Fla. 2d DCA 1992)…Certiorari jurisdiction is the appropriate means by which to review the order because it was entered after a nonfinal and unappealable voluntary dismissal. Chatios v. City of Hallan-dale, 220 So. 2d 353 (Fla.1968); Solimando v. Aloha Medical Center, 566 So. 2d 580 (Fla. 2d DCA 1990). We grant the petition. The respondent, William A. La-Torre, filed a complaint for declaratory judgment to ascertain the amount owed by him to Cohen, or by Cohen to LaTorre, arising out of a contract under which Cohen provided le…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Whitten v. Progressive Cas. Ins. Co., 410 So. 2d 501 (Fla. 1982)
- Muckenfuss v. Deltona Corp., 508 So. 2d 340 (Fla. 1987)
- Chatlos v. City OF Hallandale, 220 So. 2d 353 (Fla. 1968)
- Solimando v. Int'l Med. Ctrs., 544 So. 2d 1031 (Fla. 2d DCA 1989)
- Executive Ctrs. OF Am., Inc. v. Durability Seating & Interiors, 402 So. 2d 24 (Fla. 3d DCA 1981)
- Fireman's Fund Ins. Cos. v. Ada Rojas, 447 So. 2d 1023 (Fla. 3d DCA 1984)
- The City OF Tamarac v. Leadership Hous. Sys., Inc., 320 So. 2d 20 (Fla. 4th DCA 1975)
- Doctor Ricardo E. del Real, M.D. v. Dawson, 320 So. 2d 20 (Fla. 4th DCA 1975)