BEACHES MRI OF PB

v.

STATE FARM

1301 East Broward Blvd. Suite 230 Fort Lauderdale, FL 33301 [email protected]

PER CURIAM

Drew A. Stoller, Esq. 1400 Centrepark Boulevard Suite 605 West Palm Beach, FL 33401 [email protected]

We grant Appellant's Motion for Rehearing, withdraw our previous opinion and replace it with the following. Appellant, Beaches MRI of Palm Beach Gardens, LLC, ("Beaches MRI"), seeks review of the trial court's award of attorney's fees and costs in favor of Appellee, State Farm Mutual Automobile Insurance Company ("State Farm"), under section 57.105, Florida Statutes. We find that the trial court's order lacked the requisite findings to support an award of fees, and reverse.

On October 12, 2011, Beaches MRI filed a lawsuit against State Farm for unpaid PIP benefits and medical payment benefits. Beaches MRI had treated the insured on two dates January 6, 2010, and March 9, 2010. Beaches MRI's Complaint, however, included only the January 6, 2010 treatment date. The parties settled the case, and Beaches MRI filed a voluntary dismissal with prejudice on January 27, 2012. On September 12, 2013, Beaches MRI filed a lawsuit against State Farm for payment for the March 9 treatment date. This lawsuit underlies the instant appeal. State Farm filed a combined motion to dismiss and motion for sanctions pursuant to section 57.105, Florida Statutes (2013) ("Motion"). State Farm argued for dismissal based on section 627.736(15), Florida Statutes, which requires that all suits to recover benefits to be brought in the same action. State Farm argued that res judicata barred Beaches MRI's subsequent lawsuit because Beaches MRI was aware, at the time the second lawsuit was filed and the negotiated settlement was reached, of the March 9 treatment date. State Farm sought sanctions on the same grounds.

On January 21, 2014, a non-evidentiary hearing was held on State Farm's Motion. During the hearing, Beaches MRI argued that the lawsuit should not be dismissed because the "good cause exception" to section 627.736(15) applies. Beaches MRI also argued that its second lawsuit did not constitute res judicata because, although the settlement and voluntary dismissal of the initial lawsuit were "a global settlement for all lawsuits currently in litigation," they did not stipulate to dismissing future actions for payment of all prior dates of treatment. On February 24, 2014, in a one-paragraph order, the trial court granted State Farm's Motion, stating:

Defendant's Motion to Dismiss is hereby granted based on F.S. 627.736(15). See also United Auto v. Affiliated, 20 FLW Supp. 375 (11th Jud. Cir. Jan. 22, 2013). Based on this ruling and the date of service of the Motion for Sanctions, the Motion for Sanctions based on FS 57.105 is granted.

The parties entered into a stipulation regarding the amount of fees and costs in lieu of holding an evidentiary hearing. The final judgment awarding fees contained no findings of fact regarding entitlement to fees under section 57.105.

Section 57.105 authorizes a trial court to award fees and costs when the losing party or the losing party's attorney knew or should have known that a claim or defense, when initially presented to the court or at any time before trial, was not supported by the material facts necessary to establish the claim or defense. "Such a finding is tantamount to a conclusion that the claim was frivolous when filed, or later became frivolous." Eastern Industries, Inc. v. Fla. Unemployment Appeals Com'n, 960 So. 2d 900 (Fla. 1st DCA 2007). To award fees under section 57.105(1), a trial court must make an express finding that the claim was frivolous. Ferdie v. Isaacson, 8 So. 3d 1246, 1250 (Fla. 4th DCA 2009) (emphasis added). "[T]here must be a finding on record, supported by substantial competent evidence, in order for the trial court to award attorney's fees and costs" under section 57.105; otherwise, the order is "technically deficient." Palm Beach Polo Holdings, Inc. v. Stewart Title Guar. Co., 134 So. 3d 1073, 1078 (Fla. 4th DCA 2014).

In granting the Motion, insofar as State Farm sought dismissal of the case, the court cited section 627.736(15), Florida Statutes, and United Automobile Insurance Company v. Affiliated Healthcare Center, Inc, but provided no other analysis or factual findings regarding entitlement to fees. Given the trial court's citation to section 627.736(15),² it can be inferred that the trial court dismissed the case because it determined that Beaches MRI did not bring all claims in a single suit, and did not show good cause why the claims should be brought separately. Similarly, the United Automobile case considered the issue of res judicata under analogous facts to this case, but applied the pre-2008 version of the PIP statute, which did not include section 627.736(15). See United Auto. Ins. Company v. Affiliated Healthcare Center, Inc., 20 Fla. L. Weekly Supp. 375a (Fla. 11th Cir. Ct. Jan. 22, 2013).

Although it is possible to infer the trial court's reasoning from its citations to a statute and a case, such an inference runs counter to the aforementioned case law requiring express factual findings. Neither the trial court's order nor its final judgment regarding sanctions contained express written findings in support of its attorney fee award. Although there is a transcript of the hearing, the trial judge made no oral findings before taking the case under advisement. See, e.g., Dux v. Dicker, Krivok & Stoloff, P.A., 20 Fla. L. Weekly Supp. 300b (Fla. 15th Cir. Ct. Dec. 21, 2012) (noting that, in absence of a transcript, the possibility exists that the trial court could have made oral findings, but "a conservative interpretation... would imply that such finding should have been made in the written order."). Due to the lack of express findings in the trial court's Order on State Farm's Motion and the final judgment, we find that the trial court's order "does not fully comply with the requirements of the law." Jean-Pierre v. Glaberman, 41 Fla. L. Weekly D1236a (Fla. 4th DCA 2016). Therefore, we must reverse.

We also DENY State Farm's Motion for Appellate Attorney's Fees filed pursuant to section 768.79, Florida Statutes, because State Farm withdrew its proposal for settlement, and is therefore not entitled to fees under section 768.79.3

HAFELE, GILLEN, and ROWE, JJ., concur. 3 Although State Farm argues for the first time on rehearing that it is entitled to an award of appellate fees pursuant to section 57.105, State Farm neither cited that statute as a basis for entitlement to fees in its initial motion, nor filed a motion that complies with Florida Rule of Appellate Procedure 9.410 to obtain such fees as a sanction in an appeal. Thus, we find no basis for an award of fees pursuant to section 57.105. IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA

APPELLATE DIVISION (CIVIL): AY CASE NO.: 502015AP000039CAXXMB L.T. NO.: 2013SC010869XXXXMB

BEACHES MRI OF PALM BEACH GARDENS, LLC, a/a/o Farcella Panier Appellant,

Opinion/Decision Filed: MAY 2 5 2017