Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT LARGO MEDICAL CENTER, INC., a Florida Profit Corporation, Appellant, v. ROBERT J. KOWALSKI, JR., M.D., Appellee. No. 2D20-2574 November 17, 2021 Appeal from the Circuit Court for Pinellas County; Patricia A. Muscarella, Judge. Martin B. Goldberg, Jonathan E. Siegelaub, Jennifer Christianson, and Lorelei J. Van Wey (withdrew after briefing) of Lash & Goldberg, LLP, Miami; and Walter J. Tache of Tache, Bronis, Christianson and Descalzo, P.A., Miami, for Appellant. Richard H. Levenstein and Abby M. Spears of Nason, Yeager, Gerson, Harris & Fumero, P.A., Palm Beach Gardens, for Appellee. SLEET, Judge. Largo Medical Center, Inc. (LMC), appeals the trial court's Order on Defendant's Motion for Attorney's Fees and Costs. On appeal, LMC argues that the trial court erred because it is entitled pursuant to statute to a mandatory award of attorney fees and costs. Because LMC was entitled to an award of attorney fees and costs under section 395.0193, Florida Statutes (2019),1 as the prevailing party, we reverse and remand for the trial court to determine the amount of reasonable attorney fees and costs to be awarded to LMC. Background Dr. Robert Kowalski, Jr., was a member of LMC's medical staff and held clinical privileges in neurosurgery. On February 14, 2019, Dr. Kowalski was subjected to a precautionary suspension due to the care of a patient. By letter dated February 15, 2019, LMC stated that Dr. Kowalski's suspension was pursuant to the Medical Staff Bylaws and was an interim step in LMC's professional review activity. The letter also explained that any suspension or restriction 1 LMC also argues that it is entitled to fees pursuant to section 395.0191. Because we conclude that it is entitled to fees under section 395.0193, we need not address that argument. 2 lasting longer than thirty days must be reported to the National Practitioner Data Bank (NPDB). About two weeks later, on February 26, 2019, the Medical Executive Committee met and offered Dr. Kowalski a leave of absence which would terminate the suspension and thereby prevent any report of such suspension to the NPDB. The following day, Dr. Kowalski elected to take the leave of absence. There is nothing in the record to suggest, and Dr. Kowalski did not allege, that the leave expired or that LMC rescinded the leave. On August 7, 2019, Dr. Kowalski filed a complaint and sought to maintain the leave of absence by obtaining an order granting injunctive relief. About a month later, on September 10, 2019, the Medical Executive Committee sent Dr. Kowalski special notice that the committee made a recommendation to permanently revoke his clinical privileges. On December 11, 2019, Dr. Kowalski filed a Verified Amended Complaint for Emergency Temporary Injunctive Relief. He alleged that LMC engaged in intentionally fraudulent conduct in "the so- called 'peer review' process" when it did not provide him with notice or an opportunity to attend or participate in interviews with the peer reviewers or to correspond with the peer review panel. He 3 maintained that he "was completely shut out of the so-called peer review or investigatory process." As such, he sought a temporary injunction requiring LMC to allow him to maintain his leave of absence and precluding LMC from submitting adverse action reports to the NPDB or any other reporting agency, pending an administrative or judicial resolution of the underlying dispute regarding the suspension of his clinical privileges at the hospital. He also sought damages resulting from LMC's allegedly fraudulent conduct, including but not limited to lost earnings and lost earning capacity resulting from his lack of privileges. On the same day, he also filed a Motion for Expedited Entry of Temporary Injunction, in which he stated: The verified facts set forth in detail in the Amended Complaint establish that the Defendant Hospital's actions, in initially implementing the "precautionary suspension", did not comply with Chapter 395 of the Florida Statutes, which governs "peer review" proceedings, and also did not comply with the terms of the Medical Staff Bylaws, which form an enforceable contract between the Plaintiff and the Defendant with respect to these credentialing and peer review related actions. LMC moved to dismiss the complaint, and on February 10, 2020, the trial court granted LMC's motion with prejudice, finding that Dr. 4 Kowalski "failed to exhaust his administrative remedies at the Hospital" and that he "ha[d] not alleged an actionable claim for injunctive relief." On March 6, 2020, LMC filed a motion seeking attorney fees and costs as the prevailing party pursuant to section 395.0193 and Florida Rule of Civil Procedure 1.525. Dr. Kowalski filed a response in opposition of the motion, arguing that the action was not governed by the immunity provisions of chapter 395 of the Florida Statutes and that LMC was not the prevailing party because the complaint was dismissed without prejudice. Following a hearing on the motion, the trial court entered an order denying LMC's motion for attorney fees and costs without prejudice. The order did not include findings. However, the trial court made the following oral findings at the hearing: The challenge for me is that I don't recall the terms of the agreement and the motion was to extend the signed agreement. The complaint was to extend the signed agreement until the peer review happened and injunctive relief to report, not report basically. And there's some fraud allegations in there. So my concern in trying to figure this out is that the complaint is not about this peer review inasmuch as it is extending the time frame within which Dr. Kowalski would have some protection under the agreement. And that's where we were when I dismissed this case without prejudice because the peer 5 review had not been completed, and Dr. Kowalski was asking that that happen. So from a factual standpoint, and if I understand this right, it has been extended, and the peer review might have been ongoing or was something. And that is why I dismissed it on that basis and not because of the credentialing peer review process, but more about the agreement between the parties that I did not think under those particular circumstances that I had the jurisdiction really to override the peer review and recommend dismissing because it had not been completed. Analysis On appeal, LMC argues that the trial court erred in denying its motion for attorney fees and costs because section 395.0193 provides for a mandatory award of attorney fees and costs. We agree. Generally, we review an order on a motion for attorney fees for an abuse of discretion; however, "[w]here entitlement rests on the interpretation of a statute or contract, our review is de novo." Destination Boat Clubs, Inc. v. Island Breeze Boat Club & Rental Inc., 226 So. 3d 301, 303 (Fla. 2d DCA 2017) (alteration in original) (quoting Raza v. Deutsche Bank Nat'l Tr. Co., 100 So. 3d 121, 123 (Fla. 2d DCA 2012)). Here, LMC claimed a statutory right to attorney fees and costs; thus, we review the order de novo. 6 Section 395.0193 requires hospitals to establish procedures for medical staff members to make recommendations to the governing board on matters of physician discipline, also known as peer review. See § 395.0193(2). Subsection (9)(a) provides: If the defendant prevails in an action brought by a staff member or physician who delivers health care services at the licensed facility against any person or entity that initiated, participated in, was a witness in, or conducted any review as authorized by this section, the court shall award reasonable attorney's fees and costs to the defendant. § 395.0193(9)(a). Here, Dr. Kowalski is a physician who delivered health care services at LMC. LMC initiated and was in the process of conducting a peer review of Dr. Kowalski, who then brought an action against LMC for injunctive relief and damages. Although Dr. Kowalski maintains that this was not an action brought directly under section 395.0193, he acknowledges in his complaint that his action arose from "fraudulent conduct of [LMC] in the so-called 'peer review' process." He also specifically stated in his Motion for Expedited Entry of Temporary Injunction that LMC's "actions, in initially implementing the 'precautionary suspension', did not comply with Chapter 395 of the Florida Statutes, which governs 7 'peer review' proceedings." While the trial court found that the complaint was not about peer review but rather extending Dr. Kowalski's leave of absence, the relief Dr. Kowalski sought was threefold: (1) a temporary injunction requiring LMC to allow him to maintain his leave of absence, (2) a temporary injunction precluding LMC from submitting adverse action reports to the NPDB or any other reporting agency, and (3) damages resulting from LMC's alleged fraudulent conduct, including lost earnings and lost earning capacity resulting from his lack of privileges, presumably during his suspension and leave of absence while LMC was conducting the peer review. In essence, Dr. Kowalski's action expressly challenged the peer review process conducted by LMC pursuant to section 395.0193. Therefore, we conclude that section 395.0193 serves as a basis for LMC's entitlement to attorney fees and costs. We next turn to whether LMC was the prevailing party, and we conclude that it was. The prevailing party for purposes of attorney fees is a party that the trial court determines prevailed on significant issues in the litigation. See Moritz v. Hoyt Enters., Inc., 604 So. 2d 807, 810 (Fla. 1992). 8 In cases involving a voluntary dismissal, Florida courts have "consistently interpreted the rule as authorizing a trial court to award attorney's fees as costs to a defendant as the prevailing party when such an award is provided for either by statute or a contract between the parties." The same result attends involuntary dismissals. Raza, 100 So. 3d at 123 (citation omitted) (quoting Stout Jewelers, Inc. v. Corson, 639 So. 2d 82, 84 (Fla. 2d DCA 1994)). Even where a case has been dismissed without prejudice, Florida courts have held that a defendant can recover attorney fees and costs as the prevailing party. See, e.g., Raza, 100 So. 3d at 125; Romaguera v. Tr. Mort. LLC, 238 So. 3d 394, 395 (Fla. 3d DCA 2018); Henn v. Ultrasmith Racing, LLC, 67 So. 3d 444, 445 (Fla. 4th DCA 2011); Nudel v. Flagstar Bank, FSB, 60 So. 3d 1163, 1165 (Fla. 4th DCA 2011); Point E. Four Condo. Corp. v. Zevuloni & Assocs., 50 So. 3d 687, 688 (Fla. 4th DCA 2010); Valcarcel v. Chase Bank USA NA, 54 So. 3d 989, 990-91 (Fla. 4th DCA 2010). Here, LMC became the prevailing party and was entitled to recover attorney fees and costs when the trial court dismissed Dr. Kowalski's claims for failing to exhaust his administrative remedies and failing to allege an actionable claim for injunctive relief. 9 We conclude the trial court erred in denying LMC's motion for attorney fees and costs. Accordingly, we reverse the trial court's order and remand for the trial court to determine the amount of reasonable attorney fees and costs to be awarded to LMC. Reversed and remanded. ATKINSON and STARGEL, JJ., Concur. Opinion subject to revision prior to official publication. 10