SUSAN BESEAU, ETC., ET AL., APPELLANTS,
v.
KIRIT BHALANI, M.D., ET AL., APPELLEES
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In this wrongful death appeal, the court reversed orders awarding attorney's fees and costs against the appellant in her individual capacity, holding that only the decedent's personal representative—not the individual—is a party to wrongful death actions and can be assessed fees.
It is fundamental error to enter judgment for attorney's fees and costs against a party in her individual capacity when she was never a party to the action in that capacity. The court reversed the fee and cost awards to the extent they were assessed against Appellant individually, although affirming them to the extent assessed against her as personal representative.
[1] The body of a complaint, not its caption, determines who is a party to an action.
[2] A judgment entered against an individual who was never a party to the proceeding is fundamental error.
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Join FLexlaw to unlock all legal intelligence“the body of the complaint, not the caption, determines who is party to action”
Establishes the controlling principle that determines actual party status in litigation
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Join FLexlaw to unlock all legal intelligenceAppellant Susan Beseau brought a wrongful death action following a medical malpractice incident. Although the complaint caption named her both individ…
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PER CURIAM.
In this wrongful death action, we are asked to review the propriety of orders awarding attorney’s fees and costs in favor of Appellees who prevailed after jury trial.1 Specifically, we must determine whether it was fundamental error to assess attorney’s fees and costs against Appellant in her individual capacity.2
Appellees concede that, pursuant to the applicable wrongful death statutes, only the decedent’s personal representative may bring an action on behalf of the survivors and the estate. Appellees likewise acknowledge that, under ordinary circumstances, the estate would bear sole liability for any attorney’s fee or cost award arising from such an action. Nevertheless, Appel-lees urge that we should affirm here because Appellant was expressly named in the caption of the complaint in both her individual and representative capacities, and because Appellant failed to interpose any objection to the fee awards. We disagree and reverse.
Although Appellant, “individually” was named in the complaint’s caption, the body of the complaint makes clear that her claims were made solely as personal representative of the estate. Thus, Appellant was never a party to the action in her individual capacity. Altamonte Hitch & Trailer Service, Inc. v. U-Haul Co. of Eastern Florida, 498 So. 2d 1346, 1348 (Fla. 5th DCA 1986) (the body of the complaint, not the caption, determines who is party to action). Because Appellant, individually, was never a party to the proceeding, the entry of judgments against her was erroneous, notwithstanding the lack of objection. See Fisher v. State, 840 So. 2d 325, 330 (Fla. 5th DCA 2003) (restitution order entered against mother of juvenile who appeared only as parent and not as party violated due process and was void); Norville v. Bell South Advertising & Publ’g Corp., 664 So. 2d 16 (Fla. 3d DCA 1995) (judgment against nonparty fundamental error).
Accordingly, we vacate the orders and amended orders to the extent that the awards were made against Appellant in her individual capacity.
Vacated in Part; Affirmed in Part.
THOMPSON, J., and HARRIS, C.M., Senior Judge, concur. TORPY, J., concurs and concurs specially with opinion.
. The cost awards are the subject of Fifth DCA Case No. 5D04-2118, which we sua sponte consolidate with the instant appeal. The original attorney’s fee orders were consolidated with the main appeal, Fifth DCA Case No. 5D03-3537. The instant case addresses the amended attorney’s fee awards which we deem to have superseded the original attorney's fee awards. Attorney's fees were awarded based on the offer of judgment statute.
. No challenge is made to the orders to the extent that they impose such fees and costs against Appellant in her capacity as personal representative of her late husband's estate.
TORPY, J.,
concurs and concurs specially.
I write to express my view regarding an issue addressed by one of the parties during oral argument of these appeals. Counsel for Appellees, Memorial Health Services, Inc. and Mark Labor, noted that a cost judgment had been entered in favor of a co-defendant, Dr. Wuamett, and against Ms. Beseau in her individual capacity, from which no appeal was taken. In my view, despite the lack of direct challenge to that judgment, it is, nevertheless, subject to collateral attack based upon the court’s holding today. See Moretto v. Staub, 370 So. 2d 1220, 1221 (Fla. 3d DCA 1979) (judgment entered against nonparty violates due process); Fisher v. State, 840 So. 2d 325, 330 (Fla. 5th DCA 2003) (restitution order entered against nonparty violated due process and was void); Wright v. Lewis, 870 So. 2d 179, 182 (Fla. 4th DCA 2004) (void judgment is subject to collateral attack).
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Beaumont v. Bank OF NEW York Mellon, 81 So. 3d 553 (Fla. 5th DCA 2012)…ary judgment in this case was entered in favor of Novastar Home Mortgage, Inc. (“Novastar”), a non-party to the suit because of its prior withdrawal from the case. It is fundamental error to enter judgment in favor of a non-party. Beseau v. Bhalani, 904 So. 2d 641 (Fla. 5th DCA 2005); Rustom v. Sparling, 685 So. 2d 90 (Fla. 4th DCA 1997). The defect, which is jurisdictional, can be raised by this Court sua sponte. Dep’t of Envtl. Prot. v. Garcia, — So. 3d -, 2011 WL 3300540 (Fla. 3d DCA 2011). The judgment w…
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Bowmar v. Suntrust Mortg., Inc., 188 So. 3d 986 (Fla. 5th DCA 2016)…Bank, N.A., 124 So. 3d 308, 310 (Fla. 2d DCA 2013)). The entry of a final judgment of foreclosure in favor of a nonparty is fundamental error. See Beaumont v. Bank of New York Mellon, 81 So. 3d 553, 554 (Fla. 5th DCA 2012) (citing Beseau v. Bhalani, 904 So. 2d 641 (Fla. 5th DCA 2005)); see also Grudem v. Fed. Nat’l Mortg. Ass’n, — So. 3d -, - n. 1, 41 Fla. L. Weekly D716, D717 n. 1, 2016 WL 1062830 at *3 (Fla. 5th DCA Mar. 18, 2016). In this case, the trial court rendered judgment in favor of SunTrust even t…
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Kadlecik v. Haim, 79 So. 3d 892 (Fla. 5th DCA 2012)…award attorneys’ fees against the survivors because the personal representative is the only person with authority to settle the claim and the individual survivors cannot be fairly said to have rejected an offer of settlement. See Beseau v. Bhalani, 904 So. 2d 641, 642 (Fla. 5th DCA 2005) (holding that entry of judgment against survivor was erroneous as, despite being individually named on complaint, she was not proper party to proceeding); Thompson, 825 So. 2d at 952 (holding that attorneys’ fees cannot be a…1 / 2
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fisher v. State, 840 So. 2d 325 (Fla. 5th DCA 2003)
- Milton A. Norville, PH.D. v. Bellsouth Advertising & Publ'g Corp., 664 So. 2d 16 (Fla. 3d DCA 1995)
- Altamonte Hitch & Trailer Serv., Inc. v. U-Haul Co. OF E. Fla., 498 So. 2d 1346 (Fla. 5th DCA 1986)
- Gino Moretto v. Werner Staub, 370 So. 2d 1220 (Fla. 3d DCA 1979)
- Wright v. Lewis, 870 So. 2d 179 (Fla. 4th DCA 2004)