20-001761MA Scott H. Pearson And Susan F. Pearson, As Personal Representatives Of The Estate Of Kimberly A. Pearson, Deceased vs. Indian River Memorial Hospital, Inc., D/B/A Cleveland Clinic Indian River Hospital And Indian River Medical Center Status: Closed DOAH Final Order on Friday, November 13, 2020.

Summary: The arbitration award was established consistent with the terms of section 766.207, Florida Statutes.

A WARD

Following the presentation of all evidence in this proceeding, the

arbitrators conferred to determine an award, which by majority vote of the

arbitrators, 1 is stated below:

1. Funeral expenses: $11,075.00

2. Past medical expenses: $14,304.64

3. Present value of loss of net estate

a cc umulations : $972,106.00

Pr esent value of total award: $997,485.64

4. The parties have agreed to pay the arbitrators, Stuart Z. Grossman and

Ronald C. Dresnick, at the rate of $800 per hour. The arbitrators have agreed to be compensated for 30 hours each, which is less than the actual time spent

preparing for , and attending , the arbitration. Accordingly, Defendant shall

pay to each of the arbitrators named above $24,000. Defendant shall also pay for the costs of the arbitration proceedin g.

5. The parties have stipulated to the payment of Claimants ’ attorney’s fees

and costs for the proceedings before the arbitration panel at the statutory cap of 15% of the arbitration award, in the amount of $149,622.85.

6. Claimant s ha ve also requested appellate attorney ’ s fees for 36.3 hours

of work performed with respect to the petition for discretionary review filed by Defendants in Indian River Memorial Hospital, Inc. v. Scott and Susan Pearson , Case No. 4D20 - 1355 (Fla. 4 th DCA). However, Claimants ’ counsel

acknowledged that he did not file a motion for attorney’s fees in the appellate court pursuant to Florida Rule of Appellate Procedure 9.400(b). To obtain an

award of appellate attorney’s fees, Claimants were required to file a motion

in the appella te court. Without having done so, the arbitration panel has no

1 Mr. Grossman dissented to the determination that there was not sufficient evidence to

determine that it was reasonably certain that Ms. Pearson would have become an

administrator as opposed to remaining in the classroom.

authority to make an award for appellate attorney’s fees. Respiratory Care

Servs., Inc. v. Shear , 715 So. 2d 1054, 1056 (Fla. 5 th DCA 1998)(“Absent a

mandate, the trial court has no jurisdictio n to award appellate attorney’s

fees.”); see also Phillips v. Skilled Servs. Corp. , 775 So. 2d 921, 922 (Fla.

2000)(appellate attorney’s fee s can only be awarded when a party complies

with the substantive requirements of rule 9.400(b)); Webber v. Dep’t of Bus. &

Prof’l Reg. , 198 So. 3d 922, 923 (Fla. 1 st DCA 2018)(failure to file a motion for

attorney’s fees pursuant to rule 9.400(b) is proper basis for denial of fees on appeal); Gieseke v. Gieseke , 499 So. 2d 839 (Fla. 4 th DCA 1986)(to obtain

appellate att orney’s fees, a litigant must first request the fees from the

appellate court).

D

ONE A ND O RDERED this 13th day of November , 2020 , in Tallahassee,

Leon County, Florida.

L ISA S HEARER N ELSON

Administrative Law Judge

Divi sion of Administrative Hearings

The DeSoto Building

1230 Apalachee 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 13th day of Nove mber , 2020 .

C OPIES F URNISHED :

James D. DeChurch, Esquire

Fowler White Burnett, P.A.

14th Floor

1395 Brickell Avenue

Miami, Florida 33131

(eServed)

Jorge E. Silva, Esquire Silva & Silva, P.A.

236 Valencia Avenue

Coral Gables, Florida 33134

(eSer ved)

Stuart Z. Grossman, Esquire

Grossman Roth Yaffa Cohen, P.A.

Suite 1150

2525 Ponce de Leon Boulevard

Coral Gables, Florida 33134

(eServed)

Ronald C. Dresnick, Esquire

Kluger, Kaplan, Silverman,

Katzen & Levine, P.L.

Citigroup Center, 27th Floor

20 1 South Biscayne Boulevard

Miami, Florida 33131

Marc J. Schleier, Esquire

Fowler White Burnett, P.A.

Brickell Arch, 14th Floor 1395 Brickell Avenue

Miami, Florida 33131

(eServed)

Barbara L. Sadaka, Esquire

School District of St. Lucie County

Legal Depa rtment

9461 Brandywine Lane

Port St. Lucie, Florida 34986

(eServed)

N OTICE O F R IGHT T O J UDICIAL R EVIEW

A party who is adversely affected by this Final Order is entitled to judicial

review pursuant to section 120.68, 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 agency clerk of the Division of Administrative Hearings within 30 days of rendition of the order to be reviewed, and a copy of the notice, accompanied

by any filing fees prescribed by law, with the clerk of the d istrict c ourt of

a ppeal in the appellate district where the agency maintains its headquarters

or where a party resides or as otherwise provided by law.