STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCOTT H. PEARSON AND SUSAN F. PEARSON, AS PERSONAL REPRESENTATIVES OF THE ESTATE OF KIMBERLY A. PEARSON, DECEASED,

Claimants,

vs.

INDIAN RIVER MEMORIAL HOSPITAL, INC., D/B/A CLEVELAND CLINIC INDIAN RIVER HOSPITAL AND INDIAN RIVER MEDICAL CENTER,

Defendant.

/

Case No. 20-1761MA

ARBITRATION AWARD

The final arbitration hearing in this case was held by Zoom technology before Lisa Shearer Nelson, Chief Arbitrator; Stuart Z. Grossman, Arbitrator; and Ronald C. Dresnick, Arbitrator, on October 1, November 2, 3, and 11,

2020.

APPEARANCES

For Claimants: Jorge E. Silva, Esquire

Silva & Silva, P.A. 236 Valencia Avenue

Coral Gables, Florida 33134

For Defendant: James D. DeChurch, Esquire

Marc J. Schleier, Esquire Fowler White Burnett, P.A. 14th Floor

1395 Brickell Avenue

Miami, Florida 33131

AWARD

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. 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 proceeding.

2. 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.

3. Claimants have 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. 4th 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 appellate 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. 5th DCA 1998)(“Absent a mandate, the trial court has no jurisdiction to award appellate attorney’s fees.”); see also Phillips v. Skilled Servs. Corp., 775 So. 2d 921, 922 (Fla.

2000)(appellate attorney’s fees 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. 1st 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. 4th DCA 1986)(to obtain appellate attorney’s fees, a litigant must first request the fees from the appellate court).

DONE AND ORDERED this 13th day of November, 2020, in Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division 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 November, 2020.

COPIES FURNISHED:

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 (eServed)

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 201 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 Department

9461 Brandywine Lane

Port St. Lucie, Florida 34986 (eServed)

NOTICE OF RIGHT TO JUDICIAL REVIEW

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 district court of appeal in the appellate district where the agency maintains its headquarters or where a party resides or as otherwise provided by law.

Docket for Case No: 20-001761MA

Orders for Case No: 20-001761MA