Summary
addressing the issue via first-tier certiorari
Summary of this case from Shazam Auto Glass, LLC v. GEICO Gen. Ins. Co.Opinion
No. 3D11–2985.
2012-02-15
Mario MEJIA, Petitioner, v. UNITED AUTOMOBILE INSURANCE COMPANY, Respondent.
A Writ of Certiorari to the Circuit Court for Miami–Dade County, Appellate Division, Diane V. Ward, Yvonne Colodny, Jorge E. Cueto, Judges.Mark J. Feldman, Miami, for petitioner. Lara J. Edelstein, for respondent.
A Writ of Certiorari to the Circuit Court for Miami–Dade County, Appellate Division, Diane V. Ward, Yvonne Colodny, Jorge E. Cueto, Judges.Mark J. Feldman, Miami, for petitioner. Lara J. Edelstein, for respondent.
Before CORTIÑAS, LAGOA, and EMAS, JJ.
LAGOA, J.
Pursuant to Florida Rule of Appellate Procedure 9.040(c), we treat the motion for review filed in the instant case as a petition for writ of certiorari, grant the petition, and quash the order below. See Ramirez v. United Auto. Ins. Co., 67 So.3d 1174 (Fla. 3d DCA 2011) (finding that circuit court appellate division order denying appellate attorney's fees was properly reviewed pursuant to first-tier certiorari).
Mario Mejia (“Mejia”) filed suit against United Auto in the county court seeking payment of medical bills pursuant to the personal injury protection section of his auto insurance policy. Mejia voluntary dismissed his lawsuit against United Auto, without prejudice. United Auto subsequently obtained a cost judgment against Mejia in the county court, and Mejia appealed the cost judgment to the circuit court's appellate division. United Auto sought appellate attorney's fees in the circuit court, arguing that it was entitled to fees pursuant to section 768.79, Florida Statutes (2011), the offer of judgment statute. The circuit court affirmed the cost judgment, and in a separate order awarded United Auto appellate attorney's fees. Mejia seeks review of the circuit court's order awarding United Auto appellate attorney's fees.
United Auto concedes, and we agree, that the order on review must be quashed. United Auto is not entitled to an award of appellate attorney's fees pursuant to section 768.79, because Mejia's voluntary dismissal of his case was without prejudice. See MX Invs., Inc. v. Crawford, 700 So.2d 640 (Fla.1997); Smith v. Loews Miami Beach Hotel Operating Co., 35 So.3d 101 (Fla. 3d DCA 2010). The circuit court's award of appellate attorney's fees to United Auto under these circumstances was a departure from the essential requirements of the law. See Ramirez, 67 So.3d at 1176; Guadagno v. United Auto. Ins. Co., ––– So.3d ––––, 2011 WL 4949820 (Fla. 3d DCA 2011).
Accordingly, we grant the petition for certiorari, and quash the circuit court's order awarding United Auto appellate attorney's fees.
Petition granted.