JAIME RAMIREZ, PETITIONER,

v.

UNITED AUTOMOBILE INSURANCE COMPANY, RESPONDENT

Fla. 3d DCA | 2011-08-17

No. 3D11-1208

Before SHEPHERD and EMAS, JJ„ and SCHWARTZ, Senior Judge.

67 So. 3d 1174 Florida District Court of Appeal, Third District (2011) Positive Treatment

Cited by 29 cases

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Holding

The court held that the denial of appellate attorney's fees was legally erroneous and contrary to statute, requiring remediation.

Headnotes

[1] A successful plaintiff in an action on a PIP policy is entitled to appellate attorney's fees when the judgment is affirmed on appeal, pursuant to section 627.428, Florida…

[2] Denial of appellate attorney's fees by a circuit court appellate division, when otherwise mandated by statute, constitutes a miscarriage of justice justifying appellate r…

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Facts & Procedural History

The petitioner, a successful plaintiff in a PIP policy action, sought review of an order denying appellate attorney's fees despite affirming the money…

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Topics

Appellate Attorney'S Fees Miscarriage Of Justice Certiorari Review

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Opinion of the Court

SCHWARTZ, Senior Judge.

The petitioner, who was the successful plaintiff in the county court in an action on a PIP policy, seeks certiorari review of an order of the appellate division of the circuit court which, by clerk’s order, denied him appellate attorney’s fees even though it simultaneously per curiam affirmed the money judgment on appeal. Because this order is directly contrary to the mandatory, non-discretionary requirements of law as required by section 627.428, Florida Statutes, we grant the petition and quash the order below. See Comprehensive Health Ctr., LLC v. United Auto. Ins. Co., — So.3d —, 2011 WL 2848667 (Fla. 3d DCA 2011) (granting certiorari to review of circuit court appellate division denial of appellate section 627.428 attorney’s fees); S. Fla. Pain & Rehab. Ctr., Inc. v. United Auto. Ins. Co., — So.3d —, 2011 WL 1775816 (Fla. 4th DCA 2011) (same); Hollywood Injury Rehab Ctr. v. United Auto. Ins. Co., 985 So.2d 1221 (Fla. 3d DCA 2008) (same); Prof'l Med. Grp., Inc. v. United Auto. Ins. Co., 967 So.2d 243 (Fla. 3d DCA 2007) (same). But see Highwoods DLF EOLA, LLC v. Condo Developer, LLC, 51 So.3d 570, 573 n. 1 (Fla. 5th DCA 2010) (indicating that appeal may be appropriate to review initial decision of appellate court on collateral issue).

The insurance company makes no defense, as it could not, of the merits of the order under review. Indeed, its lawyer has what some may call the candor* to agree that

[i]f [the insured’s attorney] had contacted undersigned prior to filing his petition in this Court, Respondent would likely have agreed to a motion for rehearing in the circuit court because the denial of his appellate attorney’s fees was legally erroneous.

Rather than confessing error, however, as this concession would seem to require, see Boca Burger, Inc. v. Forum, 912 So.2d 561, 571-73 (Fla.2005), United has what some may call the courage * to contend that, having sought judicial, rather than telephonic relief by filing this completely appropriate petition, the plaintiff is out of luck. This is because, it says, the case does not meet the requirements for second tier review most recently articulated by Custer Medical Center v. United Automobile Insurance Co., 62 So.3d 1086 (Fla.2010).

To put it mildly, we disagree.1 Because the order denying appellate fees was the *1176first ruling on the question, we do not think that, properly viewed, this proceeding is the second, but rather the first tier of appellate review, so that Custer does not directly apply. Compare United Auto. Ins. Co. v. Palm Chiropractic Ctr., Inc., 51 So.3d 506 (Fla. 4th DCA 2010). Whether it does or not, and whether review is properly by certiorari or appeal, see Highwoods DLF EOLA, LLC, 51 So.3d at 573 n. 1, makes no difference. Custer, certainly did not abolish district court certiorari review of circuit court appellate decisions. If that remedy is appropriate in any case at all, as it clearly is, it must apply to one like this in which absolutely nothing can be said for the correctness of the order in question. See Comprehensive Health Ctr., LLC, — So.3d at — (quashing erroneous denial of appellate attorney’s fees by circuit court); Hollywood Injury Rehab Ctr., 985 So.2d at 1222 (same); Prof'l Med. Grp., Inc., 967 So.2d at 244 (same); Arango v. United Auto. Ins. Co., 901 So.2d 320, 322 (Fla. 3d DCA 2005) (same); see also United Auto. Ins. Co. v. Salgado, 22 So.3d 594, 598 n. 2 (Fla. 3d DCA 2009) (granting certiorari on second-tier review of circuit court appellate division per curiam affirmance), review dismissed, 31 So.3d 782 (Fla.2010); Auerbach v. City of Miami, 929 So.2d 693, 694 (Fla. 3d DCA 2006) (same); Kneale v. Jay Ben, Inc., 527 So.2d 917, 918 (Fla. 3d DCA 1988) (same); TBOM Mortg. Holding, LLC v. Brown, 59 So.3d 322 (Fla. 3d DCA 2011) (granting mandamus when requirements of law unequivocally require trial court to enter particular order); Comcoa, Inc. v. Coe, 587 So.2d 474, 477 (Fla. 3d DCA 1991) (same).

Such a ruling, like the one below, inherently constitutes, in fact is the very exemplar of the “miscarriage of justice” which not only justifies but requires remediation by a superior court like ours. See Custer Med. Ctr., 62 So.3d at 1086; Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885 (Fla.2003); see also Auerbach, 929 So.2d at 694-95 (“Failing to [grant review] in this case would [be] an unjustified approval of the obvious failure of the circuit court to apply the correct law, ... and of the resulting ‘miscarriage of justice’ which occurred below.”).

Certiorari granted.

. As was said with respect to a similar contention in Kneale v. Jay Ben, Inc., 527 So.2d 917, 918 n. 1 (Fla. 3d DCA 1988):

*1176[The respondent’s] response to the petition for certiorari here does not even seek to justify the decisions below under the applicable law. Instead, it seems to imply that the small amount [$50.07] involved does not justify our consideration of the case. We reject any such idea. There is nothing in the stated requirements for the invocation of our certiorari jurisdiction — or any other part of our duties — which turns on the amount involved. We do not feel put upon to be required to consider any case, however apparently insignificant, in which our jurisdiction, as here, has been properly invoked. Indeed, it is the [respondent’s] position which is utterly devoid of merit, has caused whatever unnecessary expenditure of judicial resources this case involves.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By (16 total)

Burneo v. United Auto. Ins. Co., 273 So. 3d 154 (Fla. 3d DCA 2019)

…s as the “first tier of appellate review,” such that the narrowed requirements of second-tier review, established in Custer Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d 1086 (Fla. 2010), do not directly apply. See Ramirez v. United Auto. Ins. Co., 67 So. 3d 1174, 1175- 76 (Fla. 3d DCA 2011). Regardless of whether our review of this order is characterized as first-tier or second-tier, it is clear that the circuit court departed from the essential requirements of the law, as there was no statutory, contractua…
The Vill. OF Palmetto BAY v. Palmer Trinity Private Sch., Inc., 128 So. 3d 19 (Fla. 3d DCA 2012)

…ge of Palmetto Bay, 18 Fla. L. Weekly Supp. 342a (Fla. 11th Jud.Cir.Ct. Feb. 11, 2011).1 Both Palmetto Bay and Palmer Trinity maintain, and we agree, that this order is subject to “first tier” certiorari review. See Ramirez v. United Auto. Ins. Co., 67 So. 3d 1174, 1175-76 (Fla. 3d DCA 2011) (confirming that a “first ruling on [a] question” by an appellate division of a circuit court is properly reviewed by the district court as a “first tier” appellate review); see also City of Indian Rocks Beach v. Tomalo,…
A. Carlo Guadagno, D.C., P.A. v. United Auto. Ins. Co., 88 So. 3d 246 (Fla. 3d DCA 2011)

…s fees, pursuant to section 627.428(1), Florida Statutes (1982), conditioned upon petitioner prevailing in the underlying proceedings. The failure to do so was a departure from the essential requirements of law. See Ramirez v. United Auto. Ins. Co., 67 So. 3d 1174 (Fla. 3d DCA 2011); Comprehensive Health Center, LLC v. United Auto. Ins. Co., — So. 3d —, 2011 WL 2848667 (Fla. 3d DCA 2011); Allstate Insurance Company v. De La Fe, 647 So. 2d 965 (Fla. 3d DCA 1994). The order denying motion for appellate attorn…

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Authorities Cited (17 total)

Allstate Ins. Co. v. Keely Kaklamanos, 843 So. 2d 885 (Fla. 2003)
Custer Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d 1086 (Fla. 2010)
Boca Burger, Inc. v. Forum, 912 So. 2d 561 (Fla. 2005)
Hayes v. Guardianship OF Mae E. Thompson, 952 So. 2d 498 (Fla. 2006)
Comcoa, Inc. v. The Honorable Jack M. COE, 587 So. 2d 474 (Fla. 3d DCA 1991)
Price v. Gray's Guard Serv., Inc., 298 So. 2d 461 (Fla. 1st DCA 1974)
United Auto. Ins. Co. v. Salgado, 22 So. 3d 594 (Fla. 3d DCA 2009)
Auerbach v. City OF Miami, 929 So. 2d 693 (Fla. 3d DCA 2006)
Mohumman Iqbal Zabrani v. Riveron, 495 So. 2d 1195 (Fla. 3d DCA 1986)
Kneale v. JAY BEN Inc., 527 So. 2d 917 (Fla. 3d DCA 1988)

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JAIME RAMIREZ, PETITIONER, v. UNITED AUTOMOBILE INSURANCE COMPANY, RESPONDENT

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By (16 total)

Authorities Cited (17 total)

JAIME RAMIREZ, PETITIONER,

v.

UNITED AUTOMOBILE INSURANCE COMPANY, RESPONDENT