Lustgarten v. Lustgarten, 4D09-4404
June 22, 2011

The parties entered into a settlement agreement that required the former husband, who is a physician, to pay former wife’s Medicare insurance premiums and medical expenses not covered by Medicare. Former wife later brought a motion for contempt, alleging that the former husband refused to pay for a medically necessary liver transplant. Former husband contended that the transplant was not medically necessary but was instead experimental, and that a less expensive treatment that Medicare covered had been recommended by former wife’s first physicians. The trial court granted former wife’s motion. The trial court found that the parties’ previous deletion of the phrase “reasonable and necessary” in the amended final judgment meant the former husband waived that requirement as to former wife’s procedure. The trial court found former husband willfully violated the amended final judgment by failing to pay for the transplant.

On appeal, the Fourth DCA agreed with former husband’s argument that former wife had to prove the transplant was reasonable and necessary. Relying upon McBride v. McBride, 637 So. 2d 938, 940-41 (Fla. 2d DCA 1994), the Court stated: “It is implicit within a final judgment of dissolution that medical expenses for which payment is sought must be reasonable and necessary.” The Court also agreed that the former husband had not waived the requirement. Despite these findings, the Court held the error harmless because former wife had provided substantial competent evidence the transplant was reasonable and necessary. However, the Court held the former husband’s violation was not willful because he had a good faith basis to question whether the transplant was reasonable and necessary based on the recommendation of the former wife’s first physicians. The Court remanded for the trial court to vacate the order of contempt and for an order requiring former husband to pay the medical expenses within thirty days.

Carlin v. Javorek

The issue was whether the Supreme Court should exercise its discretionary jurisdiction to review of the Fourth District Court of Appeal’s reversal of a trial court’s order denying an award of attorney’s fees to our client.

The Fourth District Court of Appeal recently reversed a trial court decision holding that our client was not entitled to attorney’s fees despite finding that the opposing party was in breach of the parties’ settlement agreement. The trial court found that the opposing party breached the settlement agreement by failing to produce the required medical forms and failing to execute a medical release. However, the trial court held that the breach was not material and denied both parties’ requests for attorney’s fees. The Fourth District Court of Appeal reviewed the issue de novo and held that the trial court did not err in denying the opposing party’s request for attorney’s fees, but erred in finding that the opposing party’s breach was immaterial and in denying our client’s request for reasonable attorney’s fees pursuant to the parties’ settlement agreement. The Fourth District Court of Appeal found that the opposing party materially breached the settlement agreement and that the settlement agreement’s clear and unambiguous terms mandated an award of attorney’s fees to our client as the prevailing party. The opposing party petitioned the Supreme Court for discretionary review claiming that the Fourth District Court of Appeal’s decision expressly and directly conflicted with other district court and Supreme Court decisions. Our law firm continued representation of our client in the Supreme Court. Jurisdictional briefs were filed by both parties.

In agreement with the arguments in our jurisdictional brief, the Supreme Court declined to exercise its discretionary jurisdiction, denied opposing party’s petition for review, and awarded additional attorney’s fees to our client.

The issue was whether our client was entitled to an award of attorney’s fees, under the settlement agreement between the parties and as a prevailing party, after the opposing party failed to honor certain provisions in their settlement agreement.

After years of litigating a probate matter, our client and the opposing party entered into a settlement agreement. A provision in the settlement agreement stated that the opposing party would provide, within 45 days, possession and access to medical records that were necessary for the treatment and diagnosis of our client’s medical conditions, or pay for the reasonable cost incurred from compelling performance. When the opposing party failed to provide possession and access to the records, our client filed a motion to compel compliance and requested an award of reasonable attorney’s fees. The trial court granted our client’s motion, but held that the breach of the settlement was not material and denied our client’s request for attorney’s fees. The opposing party appealed the trial court’s order arguing for an award of attorney’s fees because our client failed to prove that the breach was material. Our client cross-appealed arguing for attorney’s fees as the true prevailing party.

The Fourth District Court of Appeal performed a de novo review of the matter and held that the trial court did not err in denying the opposing party’s request for attorney’s fees, but the trial court did err in failing to award our client the reasonable attorney’s fees requested and also erred in determining that the opposing party’s breach, as a whole, was not material. Thus, the Fourth District Court of Appeal affirmed the denial of attorney’s fees to the opposing party, but reversed and remanded the denial of attorney’s fees to our client with directions to award our client reasonable attorney’s fees under the settlement agreement and as a prevailing party.

Editor’s Note: At the time of writing this blog entry, a mandate from the court had not been issued.