       Third District Court of Appeal
                               State of Florida

                         Opinion filed February 17, 2016.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D15-2806
                           Lower Tribunal No. 14-268
                              ________________


        State Farm Mutual Automobile Insurance Company,
                                    Petitioner,

                                        vs.

                Pro Health Pain Relief Center, Inc., etc.,
                                   Respondent.



      A Writ of Certiorari to the Circuit Court for Miami-Dade County, Appellate
Division, Jacqueline Hogan Scola, Jorge E. Cueto and Ariana Fajardo Orshan,
Judges.

      Seipp, Flick & Hosley, LLP, and Douglas H. Stein, for petitioner.

      Marlene S. Reiss; Munir D. Barakat, for respondent.


Before SUAREZ, C.J., and WELLS and SHEPHERD, JJ.

      SHEPHERD, J.
      State Farm Automobile Insurance Company petitions this Court for a writ of

certiorari to review an order of the Eleventh Judicial Circuit of Miami-Dade

County, sitting in its appellate capacity, unconditionally granting respondent’s, Pro

Health Pain Relief Center, Inc. a/a/o Arturo Perez, motion for appellate attorney’s

fees. Respondent concedes below, and we agree, that “the award of appellate

attorney’s fees, pursuant to section 627.428(1), Florida Statutes, should have been

conditioned upon respondent ultimately prevailing in the underlying proceeding.”

Mercury Ins. Co. of Fla. v. RPM Medical Ctr., 89 So. 3d 261, 262 (Fla. 3d DCA

2012) (citing Guadagno v. United Auto. Ins. Co., 88 So. 3d 246 (Fla. 3d DCA

2011)) (other citations omitted). In Guadagno, this Court held, “the circuit court,

acting in its appellate capacity, should have awarded petitioner appellate attorney’s

fees, pursuant to section 627.428(1), Florida Statutes (1982), conditioned upon

petitioner prevailing in the underlying proceedings” and “[t]he failure to do so was

a departure from the essential requirements of law.” Guadagno at 247.

      We therefore grant the petition for writ of certiorari and quash the circuit

court appellate division’s order unconditionally granting respondent’s appellate

attorney’s fees. We further remand to the appellate division for entry of an order

conditionally awarding appellate attorney’s fees to respondent upon its prevailing

in the underlying proceedings.

      Petition granted, order quashed, and case remanded with instructions.



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