10-010320N Yulexi Espositio, As Parent And Natural Guardian Of Stephanie Gonzalez, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, September 11, 2013.

Summary: Petitioner failed to meet the safe harbor provision of section 57.105(4).

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

YULEXI EXPOSITIO, on behalf of

and as parent and natural

guardian of STEPHANIE GONZALEZ,

a minor,

Petitioner,

vs. Case No. 10 - 10320N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY

COMPENSATION ASSOCIATION,

Responde nt,

and

LESLIE CAROLINE MCLEOD, M.D. ;

NATHALIE DAUPHIN MCKENZIE,

M.D. ; MARION FREDERIC COLAS -

LACOMBE, M.D. ; JERRY M. GILLES,

M.D. ; PUBLIC HEALTH TRUST OF

MIAMI - DADE COUNTY, d/b/a

JACKSON MEMORIAL HOSPITAL;

UNIVERSITY OF MIAMI, d/b/a

UNIVERSITY OF MIAMI S CHOOL OF

MEDICINE; and HUGO GONZALEZ -

QUINTERO, M.D.,

Intervenors.

/

F INAL ORDER OF DISMISSAL ON ATTORNEYS ' FEES

On February 4, 2013, Petitioner, Yulexi E x positio , as parent

and natural guardian of Stephanie Gonzalez, a minor, filed

PetitionerÓs Motion for Attorneys ' Fees and Costs Pursuant to

Florida Statute §57.105, requesting that Petitioner be awarded

attorneysÓ fees and costs Ðfor having to engage in and litigate a

frivolous and unwa rranted NICA matter in DOAH which led to a

frivolous and costly appeal, again initiated by Intervenors.Ñ

The certificate of service showed that the motion had been served

on Intervenors and Respondent on February 4, 2013.

On July 30, 2013, a telephonic ca se management conference

was held. Having noted that the motion was served on the same

date that it was filed, the undersigned requested that Petitioner

file a memorandum of law on the issue of whether Petitioner

complied with the safe harbor provision of section 57.105(4),

Florida Statutes. Petitioner did not file a memorandum of law as

requested but did file copies of the following documents: (1) a

letter dated June 22, 2011, to the defendants in a medical

malpractice action in the Circuit Court of the Eleventh Judicial

Circuit in and for Miami - Dade County, Florida, Exposito v. Public

Health Trust of Miami Dade County , Case No. 10 - 36684 CA - 25,

advising that Petitioner intended to file a motion for attorneysÓ

fees pursuant to section 57.105 if the defend ants did not

withdraw their motion for stay and appeal of the Summary Final

Order of Dismissal in the instant case; (2) a copy of the motion

for attorneysÓ fees at issue; (3) a copy of the motion for

attorneysÓ fees filed in the circuit action; and (4) a c opy of

the motion for attorneysÓ fees filed in the Third District Court

of Appeal.

On August 27, 2013, a telephonic conference was held on the

issue of whether Petitioner had complied with the safe harbor

provision of section 57.105(4).

FINDINGS OF FACT

1 . On November 22, 2010, Petitioner filed a Petition for

Benefits Pursuant to Florida Statute Section 766.301 et seq. On

May 20, 2011, a Summary Final Order of Dismissal was entered

dismissing PetitionerÓs Petition for Benefits P ursuant to Florida

Statute Section 766.301 et seq., finding that the claim was not

compensable and was barred by section 766.313.

2. On June 16, 2011, the University of Miami , d/b/a

University of Miami School of Medicine appealed the final order

to the Third District Court of Appe al. On June 20, 2011,

Leslie Caroline McLeod, M.D. ; Nathalie Dauphine McKenzie, M.D. ;

Marion Frederic Colas - Lacombe, M.D. ; Jerry M. Giles, M.D. ;

Hugo Gonzalez - Quintero, M.D. ; and the Public Health Trust of

Miami - Dade County , d/b/a Jackson Memorial Hospita l filed a Notice

of Joinder of the Notice of Appeal of the Final Administrative

Action.

3. The defendants in the medical practice action filed a

Motion for Stay Pending Appeal in the circuit court.

4. By letter dated June 22, 2011, Petitioner sent a lett er

to the defendants in the medical malpractice action, who were

also the appellants in the appeal. The letter advised that

Petitioner would be filing motions for attorneysÓ fees if the

defendant/appellants did not withdraw the notice of appeal,

joinder o f appeal, and motion for stay. Copies of the motions

for fees, which Petitioner intended to file in the Third District

Court of Appeal and the circuit court accompanied the letter .

The letter did not mention fees for the administrative action

which was o n appeal.

5 . On January 3, 2012, Petitioner filed AppelleeÓs Motion

for Attorneys ' Fees as a Sanction Pursuant to Fla. R. App. P.

9.410(B) and £ 57.105, Fla. Stat., seeking attorneysÓ fees as a

sanction against Appellants/Intervenors. The Third District

Court of Appeal granted the motion and remanded the case to the

Division of Administrative Hearings to conduct a hearing on the

amount of fees to be awarded.

6 . On February 4, 2013, the final hearing on the fees

awarded by the Third District Court of Appe al commenced. On the

same date, Petitioner filed PetitionerÓs Motion for AttorneysÓ

Fees and Costs Pursuant to Florida Statutes § 57.105 with the

Division of Administrative Hearings. The motion seeks attorneysÓ

fees for the administrative action on Petit ionerÓs claim for

benefits under the plan administered by the Florida Birth - Related

Neurological Injury Compensation Association.

7 . A Final Order on Fees was entered on May 23, 2013, which

determined the amount of attorneysÓ fees to be awarded to

Petitio ner pursuant to the order of the Third District Court of

Appeal. Included in the amount awarded were fees associated with

the Notice of Appeal and the Motion for Stay Pending Appeal.

CONCLUSIONS OF LAW

8 . The Division of Administrative Hearings has juris diction

over the parties to, and the subject matter of these proceedings.

§ § 57.105 and 766.301 - 766.316, Fla. Stat.

9 . Section 57.105 provides that an administrative law judge

may award a reasonable attorneyÓs fee as a sanction. Section

57.105(4), provi des:

A motion by a party seeking sanctions under

this section must be served but may not be

filed with or presented to the court unless,

within 21 days after service of the motion,

the challenged paper, claim, defense,

contention, allegation, or denial is not

withdrawn or appropriately corrected.

10 . The only notice that Petitioner provided to Intervenors

that Petitioner intended to file motions for sanctions was the

June 22, 2011 , letter, which was sent after the conclusion of the

administrative proceedi ng. The letter advised that Petitioner

would be seeking attorneysÓ fees if Intervenors did not withdraw

the notice of appeal, joinder of appeal, and motion for stay. No

mention was made of any actions in the concluded administrative

proceeding for which Petitioner would be seeking fees. The

June 22, 2011 , letter enclosed copies of motions for fees which

Petitioner intended to file in the circuit court medical

malpractice action and in the Third District Court of Appeal.

Petitioner did not enclose a copy of the motion which was filed

with the Division of Administrative Hearings on February 4, 2013.

1 1 . Petitioner has failed to comply with the safe harbor

provision of section 57.105(4). Petitioner did not provide

Intervenors with notice that she intended to seek sanctions for

IntervenorsÓ actions in the administrative proceeding. Thus,

Intervenors had no opportunity to withdraw any motions that it

may have filed in the administrative proceeding.

1 2 . The actual motion must be served on the party against

whom the sanction is sought 21 days before the motion is filed.

The motion at issue was served and filed on the same date.

1 3 . Petitioner contends that the letter dated June 22,

2011, was sufficient to put Intervenors on notice and satisfy

section 57.1 05(4). A letter does not comply with the provisions

of section 57.10 5 . Nathan v. Bates , 998 So. 2d 1178 (Fla. 3rd

DCA 2008). Even if the letter were sufficient to satisfy the

requirements of section 57.105(4), Petitioner has been awarded

fees for the no tice of appeal, joinder in appeal, and motion for

stay in the Final Order on Fees entered May 23, 2013.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that Petitioner is not entitled to attorneysÓ

fees pursuant to section 57.10 5 .

DONE AND ORDERED this 11th day of September , 2013 , in

Tallahassee, Leon County, Florida.

S

SUSAN BELYEU KIRKLAND

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalac hee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 11th day of September , 2013 .

COPIES FURNISHED:

( V ia certified mail)

Eric K. Gressman, Esquire

Dade County Attorney ' s Office

Suite 2810

111 Northwest 1st Street

Miami, Florida 33128

Maria D. Tejedor, Esquire

Diez - Arguelles and Tejedor, P.A.

505 North Mills Avenue

Orlando, Florida 32803

Marc J. Schleier, Esquire

Fowler, White, B urnett, P.A.

Espirito Santo Plaza, 14th Floor

1395 Brickell Avenue

Miami, Florida 33131 - 3302

D avid W. Black, Esquire

Frank, Weinberg and Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 33324

Barbara Green, Esquire

Barbara Green, P.A.

300 Sevil la Avenue , Suite 209

Coral Gables, Florida 33134

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

Amie Rice, Investigation Manager

Consume r Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

NOT ICE OF RIGHT TO JUDICIAL REVIEW

Review of a final order of an administrative law judge shall be

by appeal to the District Court of Appeal pursuant to section

766.311(1), Florida Statutes. Review proceedings are governed by

the Florida Rules of Appellate Procedure. Such proceedings are

commenced by filing the original notice of administrative appeal

with the a gency c lerk of the Division of Administrative Hearings

within 30 days of rendition of the order to be reviewed, and a

copy, accompanied by filing f ees prescribed by law, with the

clerk of the appropriate District Court of Appeal. See

§ 766.311(1), Fla. Stat., and Fla. Birth - Related Neurological

Injury Comp. Ass'n v. Carreras , 598 So. 2d 299 (Fla. 1st DCA

1992).