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Jasckson v. York Hannover Nursing Centers9/5/2003
The petitioner and plaintiff below, Annie Jackson, as Personal Representative of the Estate of Annie Johnson, Deceased (the "Personal Representative"), petitions for a writ of certiorari to review an order of the lower court permitting post judgment depositions to be conducted in connection with a section 57.105(1), Florida Statutes (1997), request for attorney's fees. We elect to treat the request for writ of certiorari as a non-final appeal from a post judgment order pursuant to Rule 9.130(a)(4), Florida Rules of Appellate Procedure, and reverse part of the order.
In 2001, the Personal Representative filed a third amended complaint against York Hannover Nursing Centers ("York Hannover"), alleging that in March of 1999, Annie Johnson was admitted to the Brooksville Healthcare Center in Hernando County, Florida, for rehabilitation after having suffered a stroke. Ms. Johnson passed away on April 12, 1999. Count I of the complaint asserted a statutory deprivation and infringement of rights pursuant to section 46.021, Florida Statutes (1999). In this count the Personal Representative alleged that while in the nursing home, Ms. Johnson was dehydrated and developed several pressure sores, and further maintained that Ms. Johnson became malnourished and developed a urinary tract infection while in the care of York Hanover that resulted in an unnecessary hospitalization. In Counts II and III the Personal Representative alleged, respectively, that York Hanover was negligent and medically negligent in its care of Ms. Johnson. Finally, in Count IV the Personal Representative sought recovery for wrongful death.
On the day of trial, the Personal Representative voluntarily dismissed Counts II, III and IV of the third amended complaint. Count I went to trial and a verdict was entered in favor of the Personal Representative in the amount of $32,650.50. A final judgment was rendered on March 13, 2003, and a notice of appeal was timely filed.
York Hannover subsequently filed a motion for attorney's fees and costs pursuant to section 57.105, as a result of the voluntary dismissal of the last three counts of the complaint. The trial court conducted a hearing on the motion, but reserved ruling. After the hearing, York Hannover sought to depose the attorneys for the Personal Representative, and in response the Personal Representative filed a motion for protective order. The Personal Representative maintained that the 1997 version of section 57.105, Florida Statutes, applied, not the post October 1999 amended version as argued by York Hannover. That version allows attorney's fees if the trial court finds that there was a complete absence of a justiciable issue of either law or fact raised by the complaint or defense of the losing party. The Personal Representative posited that the statute that governed was the one in effect when the cause of action arose, not when the complaint was filed or when the voluntary dismissal was taken. See L. Ross Inc. v. R. W. Roberts Construction Co., Inc., 466 So. 2d 1096 (Fla. 5th DCA 1985), approved, 481 So. 2d 484 (Fla. 1986). Accordingly, the Personal Representative argued that the court could only award 57.105 attorney's fees where it found a complete absence of a justiciable issue of either law or fact raised by the complaint.
After a second hearing addressing this same subject, the trial court concluded that the 1997 version of section 57.105 applied to York Hannover's pending motion for attorney's fees, and that York Hannover was the "prevailing party" on Counts II, III and IV. No decision was made specifically with respect to entitlement to fees or the amount of fees, if any. The trial court did, however, authorize York Hannover to take the depositi
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