5D10-4103 Kadlecik v. Haim

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D10-4103

Case Date: 02/13/2012

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2012

CHARLES KADLECIK, AS PERSONAL, ETC., Appellant, v. Case No. 5D10-4103

Y. DANIEL HAIM, M.D. AND CENTRAL FLORIDA, ETC., Appellee. ________________________________/ Opinion filed February 17, 2012 Appeal from the Circuit Court for Seminole County, John Galluzzo, Judge. Arthur J. Ranson, III, and Stephanie L. Cook, of Shuffield, Lowman & Wilson, P.A, Orlando, for Appellant. Thomas E. Dukes, III, and Pamela A. Padilla, of McEwan, Martinez & Dukes, P.A., Orlando, for Appellee.

PERKINS, T. R., ASSOCIATE JUDGE. Charles Kadlecik appeals the trial court's attorneys' fees award to prevailing wrongful death defendants, Y. Daniel Haim, M.D., and Central Florida Pulmonary Group, P.A. (collectively, "the appellees"). We reverse the trial court's order directing that Mr. Kadlecik, as survivor, pay the awarded fees. Mr. Kadlecik's wife, Linda Kadlecik, died during a medical procedure performed by Dr. Haim at Florida Hospital. As personal representative of the Estate of Linda

Kadlecik, Mr. Kadlecik filed a wrongful death claim against the appellees and Florida Hospital, seeking survivor damages and the Estate's loss of net accumulations. After the claims against Florida Hospital settled, Mr. Kadlecik apportioned the entire settlement to his sole survivor claims. Before trial, the appellees served settlement proposals on Mr. Kadlecik, as personal representative of the Estate. These offers were rejected. The wrongful death claim proceeded to jury trial, and resulted in a judgment in favor of the appellees, which this Court affirmed. Kadlecik v. Haim, 53 So. 3d 237 (Fla. 5th DCA 2011). The trial court further awarded attorneys' fees and costs of $202,592 against Mr. Kadlecik, as personal representative of the Estate, for failing to accept the proposals of settlement, which this Court also affirmed. Kadlecik v. Haim, 66 So. 3d 948 (Fla. 5th DCA 2011). The appellees then petitioned the probate court to apportion Florida Hospital's settlement proceeds for the amount of their fee awards or, in the alternative, to surcharge the personal representative. After a hearing, the trial court ordered Mr. Kadlecik to pay the awarded attorneys' fees "sixty (60) days prior to distributing the remaining settlement proceeds and assets to himself as the sole survivor." On appeal, Mr. Kadlecik claims that attorneys' fees awarded against the personal representative cannot be recovered against funds allocated to a survivor under the Wrongful Death Act. Because this appeal only challenges the entitlement to attorneys' fees, our review is de novo. Allstate Ins. Co. v. Regar, 942 So. 2d 969, 971 (Fla. 2d DCA 2006). Under Florida's Wrongful Death Act, an estate's personal representative brings all claims on behalf of both the estate and the decedent's survivors.

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