Summary
affirming order denying defendants' motion for attorney fees following voluntary dismissal because no showing in record that summary judgment could have been entered in favor of defendant
Summary of this case from Mega Bank v. Telecredit Service Ctr.Opinion
No. 87-491.
February 9, 1988.
Appeal from the Circuit Court, Dade County, Phillip W. Knight, J.
George, Hartz Lundeen, James C. Blecke, Miami, and Susan S. Lerner, for appellant.
Spence, Payne, Masington, Grossman Needle, Podhurst, Orseck, Parks, Josefsbeg, Eaton, Meadow Olin and Joel D. Eaton, Miami, for appellees.
Before BARKDULL and HUBBART and FERGUSON, JJ.
This is an appeal from a trial court order denying the defendant George Mekras' motion for attorney's fees under Section 768.56(1), Florida Statutes (1983), after the plaintiffs Howard and Linda Marlow voluntarily dismissed their medical malpractice action against the above defendant. We affirm the order appealed from because, on this record, there is no showing that "had not the voluntary dismissal intervened, the case would have concluded with a summary judgment in [the defendant Mekras'] favor." Englander v. St. Francis Hospital, Inc., 506 So.2d 423, 424 (Fla. 3d DCA 1987). Contrary to the defendant's argument on appeal, the plaintiffs did have expert medical witnesses to support their claim and only dismissed the action because they were unable to produce these witnesses for a defense deposition within the time set by the trial court; indeed, the plaintiffs, armed with these witnesses, have since refiled the instant action against the defendant, and the said action remains pending below.
Affirmed.