Petition for Writ of Prohibition, County Court:  ATTORNEY’S FEES  – Florida Statutes, § 57.105 – prohibition will be invoked only in emergency cases to forestall impending injury and when there is no other adequate legal remedy - trial judge has jurisdiction to award attorney’s fees pursuant to 57.105 following the Plaintiff’s voluntary dismissal under the safe harbor provisions of 57.105(4) - Petition denied.  Krishnaiyer v. Southern Group Indemnity, Inc., No. 04-0028AP-88B (Fla. 6th Cir. App. Ct. Jan. 7, 2005).










on behalf of REBECCA LANIER, and


on behalf of PAPA & GIPE, P.A.,




vs.                                                                                                 Appeal No. 04-0028AP-88B









            THIS CAUSE came before the Court on the Second Amended Petition for Writ of Prohibition, the Response and the Reply.  Upon consideration of the same, the Court finds that the Petitioners, Jayam Krishnaiyer, M.D., P.A., d/b/a Creative Health Center, on behalf of Rebecca Lanier (Krishnaiyer), and David A. Papa and R. Stanley Gipe, on behalf of Papa & Gipe, P.A. (Papa & Gipe), attorneys for Krishnaiyer in the proceedings below, seek a writ of prohibition to prevent the trial court from holding a hearing which would require Krishnaiyer and Papa & Gipe to show cause why attorney’s fees should not be assessed pursuant to Florida Statutes, § 57.105.

            On August 11, 2003, Krishnaiyer served the Respondent, Southern Group Indemnity (Southern), with a Complaint on behalf of former patient Rebecca Lanier (Lanier).  The Complaint alleged a breach of contract related to an insurance policy which provided benefits to Lanier for injuries arising out of an accident occurring October 23, 1999.  Southern claimed to have paid Krishnaiyer all available benefits and pled exhaustion of benefits as an affirmative defense.  Southern contended that Krishnaiyer was informed of the exhaustion of benefits.  On December 10, 2003, Southern served Krishnaiyer with a Motion to Dismiss for failure to state a cause of action and a Motion to Tax Attorney’s Fees and Costs, stating that Lanier’s benefits exhausted thirty-two months prior to the filing of Krishnaiyer’s Complaint.  On December 16, 2003, Krishnaiyer filed a Notice of Voluntary Dismissal.

            Southern then filed a Motion to Determine Entitlement to Attorney’s Fees and Costs and Request for Sanctions Pursuant to Florida Statutes, Section 57.105.  The trial court denied the Motion since Krishnaiyer voluntarily dismissed the Complaint, thereby availing himself of the “safe harbor” provisions of the § 57.105(4).[1]  However, the trial court, on its own initiative, issued Orders to Show Cause to Krishnaiyer and Papa & Gipe, stating that a review of the record gave cause to believe that Krishnaiyer knew, or should have known, that his claim was not supported by the material facts necessary to establish the claim.  The trial court ordered Krishnaiyer and Papa & Gipe to show cause why the trial court should not assess attorney’s fees equally against them pursuant to § 57.105 as they knew, or should have known, that the facts set forth in the Complaint failed to set a cause of action due to the exhaustion of insurance benefits. 

            In their Second Amended Petition for Writ of Prohibition, the Petitioners argue that the trial court should be prohibited from going forward with the Orders to Show Cause as the trial court was without jurisdiction to enter the orders, the trial court entered the orders at defense counsel’s request, and, lastly, allowing the trial court to initiate its own attorney’s fees inquiry eviscerates the purpose of the “safe harbor” provision of § 57.105(4). 

            In considering these issues, the Court finds that it cannot issue a writ under the facts of this case.  As explained by the Florida Supreme Court in English v. McCrary, 348 So.2d 293, 296 (Fla. 1977), prohibition is an extraordinary writ and is to be employed with great caution and utilized only in emergencies.  “Prohibition will be invoked only in emergency cases to forestall an impending present injury where [the] person seeking [the] writ has no other appropriate and adequate legal remedy.”  Id. at 297.  The Petitioners have an adequate legal remedy, via plenary appeal, at the conclusion of the trial court proceedings below. 

            While the English decision does provide that prohibition lies to prevent an inferior tribunal from acting in excess of its jurisdiction, the Court finds that the trial court had jurisdiction to award attorney’s fees pursuant to § 57.105 following the Plaintiff’s voluntarily dismissal of its Complaint.  See Garcell v. Holder, 689 So.2d 1177, 1178 (Fla. 2d DCA 1997)(holding that trial court did have jurisdiction to determine issue of attorneys fees pursuant to statute where forfeiture action was voluntarily dismissed); see also Tampa Letter Carriers, Inc. v. Mack, 694 So.2d 890, 891 (Fla. 2d DCA 1995), quashed on other grounds by MX Investments, Inc. v. Crawford, 700 So.2d 640 (Fla. 1997); Neustein v. Miami Shores Village, 837 So.2d 1054, 1055 (Fla. 4th DCA 2002).  The plain language of § 57.105(1) states that the trial court has the authority to award attorney’s fees “upon the court’s initiative.”  Further, in its Order on Defendant’s Motion to Determine Entitlement, entered April 6, 2004, the trial court expressly reserved jurisdiction to determine Southern Indemnity’s entitlement to fees and costs.  Based on the foregoing, the Court finds that the Petitioners’ request for the issuance of a writ of prohibition must be denied.

            Therefore, it is,

            ORDERED AND ADJUDGED that the Second Amended Petition for Writ of Prohibition is denied.

            DONE AND ORDERED in Chambers, at St. Petersburg, Pinellas County, Florida this ________ day of January 2005.      






                                                                        DAVID A. DEMERS

                                                                        Circuit Judge, Appellate Division




Copies furnished to:


Judge William Blackwood


Christopher DeBari, Esquire

Papa & Gipe, P.A.

1724 Gulf to Bay Boulevard

Clearwater, FL  33755


Michelle C. Pittman, Esquire

Gale L. Young, P.A.

15436 N. Florida Avenue, Suite 103

Tampa, FL  33613


[1] This sections states: “[a] motion by a party seeking sanctions under this section must be served but may not be filed with or presented to the court unless, within 21 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.”