BURNEO
v.
UNITED AUTOMOBILE INS. CO.

Fla. 3d DCA | 2019-02-20
No. 18-2268
273 So. 3d 154 Florida District Court of Appeal, Third District (2019) Positive Treatment
Cited by 56 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Holding

A trial court cannot award appellate attorney's fees conditioned upon prevailing below when the motion is premised on a settlement proposal; such fees must instead be conditioned upon strict compliance with section 768.79, Florida Statutes, and Florida Rule of Civil Procedure 1.442.

Headnotes

[1] Second-tier certiorari is unavailable for mere legal error.

[2] An award of appellate attorney's fees based on a proposal for settlement requires a prior determination that the statutory and rule requirements for the proposal were met…

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Key Quotes

“the circuit court departed from the essential requirements of law in ordering that United Auto was entitled to appellate attorney's fees "conditioned upon prevailing below."”

Court explaining why the attorney's fees order was improper
Facts & Procedural History

Claudia Burneo and United Automobile Insurance Company were parties to a dispute. The county court denied Burneo's motion to enforce an alleged settle…

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Topics
Legal Error Proposal For Settlement Second Tier Certiorari Review Appellate Attorney'S Fees

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Opinion of the Court

Third District Court of Appeal State of Florida

Opinion filed February 20, 2019. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D18-2268 Lower Tribunal Nos. 08-438, 16-377 ________________ Claudia Burneo, Petitioner, vs. United Automobile Insurance Company, Respondent. A Writ of Certiorari to the Circuit Court for Miami-Dade County, Appellate Division, Nushin G. Sayfie, Lisa Walsh and Andrea Wolfson, Judges. Mark J. Feldman, P.A., and Mark J. Feldman, for petitioner. Michael J. Neimand, for respondent. Before EMAS, C.J., and SALTER and FERNANDEZ, JJ. EMAS, C.J.

In this petition for second-tier certiorari, Claudia Burneo seeks review and quashal of two orders of the circuit court, sitting in its appellate capacity.

As to the first order, which affirmed per curiam an order of the county court denying a motion to enforce an alleged settlement agreement between the parties,

we deny the petition. See Strong & Trowbridge Co. v. H. Baars & Co., 54 So. 92 (Fla. 1910); Restatement (Second) of Contracts, § 39, cmts. a, b (1981). At best,

Burneo has established the existence of mere legal error, for which second-tier certiorari relief is unavailable. Custer Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d

1086, 1092 (Fla. 2010); Priority Med. Rehab., Inc. v. United Auto. Ins. Co., 227 So. 3d 672, 673-74 (Fla. 3d DCA 2017).

However, as to the circuit court’s second order, which conditionally granted

United Auto’s motion for appellate attorney’s fees, we grant the petition and quash that order, as the circuit court departed from the essential requirements of law in ordering that United Auto was entitled to appellate attorney’s fees “conditioned upon prevailing below.”

As United Auto properly and commendably concedes, its motion for appellate attorney’s fees was premised not upon a “prevailing party” provision, but upon a proposal for settlement served upon Burneo. United Auto further concedes that the order granting entitlement to appellate attorney’s fees must be conditioned upon the trial court’s determination that United Auto satisfied the requirements of section

768.79, Florida Statutes (2018) and Florida Rule of Civil Procedure 1.442. See

Diamond Aircraft Indus., Inc. v. Horowitch, 107 So. 3d 362, 377 (Fla. 2013) (requiring strict compliance with section 768.79 and rule 1.442).1

We therefore deny the petition in part, grant the petition in part, quash the order of the circuit court which granted United Auto’s motion for appellate attorney’s fees “conditioned upon prevailing below,” and remand this cause to the circuit court, in its appellate capacity, for further proceedings.

Footnotes
1 In addition, we note that the circuit court’s order granting United Auto’s motion for appellate attorney’s fees was the “first ruling on the question.” Therefore, as to that order, this proceeding is more properly considered by us 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, contractual or other basis upon which the circuit court could have premised its award of appellate attorney’s fees to United Auto as a “prevailing party.”

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By (31 total)

  • Webster Lumber Co. v. Mrs. Jennie E. Lincoln, 94 Fla. 1097 (Fla. 1927)
    …Until all understand alike, there can be no assent, and therefore no contract. Both parties must assent to the same thing in the same sense, and their minds must meet as to all the terms. 13 C. J., pp. 263-264; Strong etc. Co. v. Baars, 60 Fla. 253, 54 South. Rep. 92; Ross v. Savage, 66 Fla. 106, 63 South. Rep. 118. In the case of Strong etc. Co. v. Baars, supra, we said: “In order to create a contract it is essential that there should be a reciprocal assent to a certain and definite proposition, and so long as…
  • Ross v. Savage, 66 Fla. 106 (Fla. 1913)
    …hat there may be a contract. Etheredge v. Barkley, 25 Fla. 814, 6 South Rep. 861; Knight, Norman & Co. v. J. C. Turner Cypress Lumber Co., 55 Fla. 690, text 699, 45 South. Rep. 1016, text 1019; Strong & Trowbridge Co. v. H. Baars & Co., 60 Fla. 253, 54 South. Rep. 92. It is obvious that the mutual intention of the parties executing the lease in question was to give to the lessee the mining rights set forth therein. If any doubt existed-as to what was the intention of the parties, it would be absolutely settled…
  • In re Est. of Samuel Donner v. Anton, 364 So. 2d 742 (Fla. 3d DCA 1978)
    …any misrepresentations. Ordinarily, a contract cannot bind one who is not a party thereto since to create a valid contract there must be reciprocal assent to a certain and definite proposition. Strong & Trowbridge Co. v. H. Baars & Co., 60 Fla. 253, 54 So. 92 (1910). Sam’s willful breach of contract alone is not sufficient to pin culpability upon Larna. Accordingly, Larna cannot be said to have breached the settlement agreement with Ruth. We next turn to the issue of whether Larna was aware of the restr…

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