Florida Rule of Appellate Procedure 9.400(b) states:

A motion for attorneys’ fees may be served not later than the time for service of the reply brief and shall state the grounds on which recovery is sought. The assessment of attorneys’ fees may be remanded to the lower tribunal. If attorney’s fees are assessed by the court, the lower tribunal may enforce payment.

We recently filed a motion for attorneys’ fees in the Fourth District Court of Appeal after the opposing party voluntarily dismissed her own motion for contempt and petition for modification of the final judgment as to child custody in the trial court. We had appealed the trial court’s order denying our client’s motion to dismiss for lack of personal jurisdiction. Neither the parties nor the child in this family law case had any relationship to the State of Florida.

After we submitted an Initial Brief in the appellate court, the opposing party voluntarily dismissed her motion for contempt and petition for modification in the trial court and asked the appellate court to dismiss the pending appeal. We then filed a successful motion for attorneys’ fees in the Fourth District Court of Appeal. Having secured entitlement to fees, we will now be going back to the trial court to obtain the actual award of fees.

If you have any questions regarding this case, or if you have any other appellate or trial support questions,  contact The Law Offices of Robin Bresky (http://www.breskyappellate.com) at 561-994-6273.

The issue was whether a trial court’s order denying exceptions to a general magistrate’s report and affirming the report, with several exceptions, was appealable as a final order or an appealable non-final order.

We represented the Father of an infant child in a contentious custody dispute over timesharing and other issues. A general magistrate entered a report with recommendations regarding a time-sharing schedule, child support, and daycare for the child.  The general magistrate also found that the Father had been involuntarily absent from the child’s life due to the Mother’s actions and her failure to facilitate a relationship between the Father and child.  The trial court judge affirmed and implemented the magistrate’s report with several exceptions, and the Mother appealed to the Fourth District Court of Appeal.

We filed a motion to dismiss the appeal, arguing (1) that the trial court’s order was neither a final order nor an appealable non-final order under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iii), and (2) that the appeal should be dismissed based on the Mother’s failure to file an Initial Brief within the time frame required by Florida Rule of Appellate Procedure 9.130(e).  The court of appeals granted our motion, and we succeeded in obtaining dismissal of the Mother’s appeal for our client.

Many of us are taught at a young age to trust the men and women of the cloth; cloth in this case consisting of a white poly-cotton blend lab coat.  In most cases, we trust our physicians with our lives and the lives of our loved ones.  As patients, we listen and do as directed by our doctors because afterall, they do know best.  In the context of medical malpractice, however, this doctor/patient relationship can become tenuous when the patient feels the doctor’s care has dropped below the acceptable standard and resulted in injury.   Trusting patients who feel they have been injured at the hands of a physician quickly turn into inquisitive clients in search of justice.  Our firm recently received a favorable Opinion from the Fourth District Court of Appeal in the context of a medical malpractice action.  Specifically, the decision hinged on the statute of limitations in the medical malpractice arena and when the time for said cause of action begins to accrue.

Florida Statue 95.11(4)(b) governs the limitations period for a medical malpractice action.  The section states that an action for medical malpractice shall be commenced within 2 years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence . . . .”  In Tanner v. Hartog, 618 So. 2d 177, 181 (Fla. 1993), the Florida Supreme Court articulated the standard to be applied as follows:  “the knowledge of the injury as referred to in the rule as triggering the statute of limitations means not only knowledge of the injury but also that there is a reasonable possibility that the injury was cause by medical malpractice.”  Certainly there are injuries that clearly are caused by medical malpractice.  For example, going into surgery to have a cyst removed from your hand and waking to find yourare missing your left leg.  But what happens when you experience a less conspicuous injury and although your body is telling you one thing, the physician whose continuing care you are under is reassuring you that all is well and that in time, things will be better?  This is the precise issue involved in our case.  Essentially there was a factual dispute as to when the patient knew or should have been aware that her injuries may have been the result of medical malpractice.  And, instead of submitting that question to the jury for determination, the judge decided at summary judgment that the statute of limitations had run.  The Fourth District Court of Appeal reversed the judge’s decision in our favor and found that the judge had erred in taking that question from the jury.  The Court, recognizing the inherent trust placed upon a physician by a patient, stated “too great is the faith laypersons place in their physicians for the law to impute a duty on them to investigate malpractice in every change in diagnosis or treatment.”  (quoting from Cunningham v. Lowery, 724 So. 2d 176, 179 (Fla. 5th DCA 1999).  Thus, it appears the courts have tried to impose a balance between patient accountability and the importance of preserving a trusting doctor/patient relationship during and throughout treatment.  Most important, however, is that the question will often hinge upon a factual determination and will more often than not be left to the province of the jury to decide.

Individuals that seek to appeal a lower court judgment that involves solely a monetary judgment, are entitled to an automatic stay by posting a good and sufficient bond, pursuant to Florida Rule of Appellate Procedure 9.310(b)(1). The rule requires the bond be set in an amount that equals the judgment amount plus twice the statutory rate of interest.  The bond may be in the form of a bond with a principal and a surety company authorized to do business in the State of Florida or may be cash deposited with the circuit court clerk’s of court.  The bond is deemed posted, thus making the automatic stay effective, on the date the bond is filed with the clerk of court.  But, appellants and trial counsel alike BEWARE.

The posting of a good and sufficient bond stays further proceedings and does not act to interfere with what has already been done.  This fact becomes of particular importance in the context of the issuance of a writ of garnishment.  If the money judgment involves a final adjudication as to amount, the party seeking to collect on the judgment may motion the court for a writ of garnishment.  Said writ will issue upon the filing of the motion and may be served upon, the owing party’s bank, which will likely result in a freeze of that party’s bank account or accounts.  Florida Statute section 77.0305 outlines the requirements and procedure for obtaining a writ of garnishment.

Therefore, it is prudent that appellants seeking review of a final money judgment entered against them, who likewise seek an automatic stay pending review under Rule 9.310(b)(1), act expeditiously in posting a good and sufficient bond.  In the instance that a writ of garnishment has already issued, posting a bond after the fact only serves to stay further garnishment proceedings, but the posting of the bond will not un-freeze any bank accounts that may have already been frozen upon service of the writ of garnishment.  The posting of the bond will, however, stay further collection proceedings.  In short, individuals seeking to stay collection proceedings when seeking review of a final monetary judgment in the appellate court must act quickly and be sure that a good and sufficient bond is posted with the circuit court clerk as soon as possible.