HARTFORD ACCIDENT & INDEMNITY COMPANY, APPELLANT,
v.
GEORGE FREDERICK SMITH AND FRANK MELVIN STEWART, APPELLEES
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The court held that a post-judgment award of attorneys' fees requires the trial court to have reserved jurisdiction, and a supersedeas bond premium is damages, not costs.
Appellees sought attorneys' fees and a supersedeas bond premium as costs after judgment. The trial court granted both requests.…
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DAUKSCH, Judge.
This is an appeal from two post judgment orders granting attorneys fees as costs, in the first instance, and a bond premium for a supersedeas bond appellees had posted, in the second order. As to the order granting the attorneys fees, we must reverse because the judgment which preceded that order did not reserve jurisdiction in the trial court for any future award of past attorney’s fees. Church v. Church, 338 So. 2d 544 (Fla.3d DCA 1976); Frumkes v. Frumkes, 328 So. 2d 34 (Fla. 3d DCA 1976). Since the statute which provides attorneys fees in cases such as this requires the award of attorneys fees to be included in the judgment the court had to make the fees a part of the judgment or at least reserve jurisdiction to award the fees upon motion and proof. Section 627.428, Florida Statutes. As has been often stated the statutory award of attorneys fees is in derogation of the common law and such statute must be strictly construed. Sunbeam Enterprises, Inc. v. Upthegrove, 316 So. 2d 34 (Fla.1975).
This is not a case similar to Washington v. Rodgers, 201 So. 2d 636 (Fla. 4th DCA 1967) where the request for attorney’s fees was made within the time after judgment for the filing of a motion for rehearing. See also McCallum v. McCallum, 364 So. 2d 97 (Fla. 4th DCA 1978).
The award of the bond premium as costs was also error. The bond premium was not incurred in the action in which those costs were awarded. The appellee had first sued the appellant for its alleged failure to defend a lawsuit. As a result of appellants failure to defend appellee, it is alleged appellee was required to post a su-persedeas bond and pay a premium. If all of this is true then the bond premium is an item of damages in the lawsuit of appellee versus appellant, not an incidental cost in that lawsuit.
The order awarding attorneys fees and the order awarding the bond premium as costs are both reversed.
REVERSED.
CROSS and LETTS, JJ., concur.
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Fla. Erection Servs., Inc. v. Raymer McDONALD, 395 So. 2d 203 (Fla. 1st DCA 1981)…The carrier further asserts that since a statutory award of attorney’s fees is in derogation of the common law, the statute awarding attorney’s fees for bad faith must be strictly construed, citing Hartford Accident and Indemnity Company v. Smith, 366 So. 2d 456 (Fla. 4th DCA 1978); Carlile v. Game and Fresh Water Fish Commission, 354 So. 2d 362 (Fla.1977); Allstate Mortgage Company v. Strasser, 277 So. 2d 843 (Fla. 3rd DCA 1973), aff'd 286 So. 2d 201 (Fla. 1975). Finally, the carrier maintains that the el…
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Stroud v. Indus. Fire & Cas. Ins. Co., 528 So. 2d 550 (Fla. 3d DCA 1988)…o. 2d 913 (Fla. 4th DCA 1983); East Coast Insurance Company v. Cooper, 415 So. 2d 1323 (Fla. 3d DCA 1982); AGB Oil Co. v. Crystal Exploration and Production Company, 406 So. 2d 1165 (Fla. 3d DCA 1981); Hartford Accident & Indemnity Company v. Smith, 366 So. 2d 456 (Fla. 4th DCA 1979); Mid-State Homes, Inc. v. Ritchie, 181 So. 2d 725 (Fla. 1st DCA 1966).…
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Taggart Corp. v. Benzing, 434 So. 2d 964 (Fla. 4th DCA 1983)…because behavior on both sides was tantamount to implied consent. In Washington v. Rodgers, 201 So. 2d 636 (Fla. 4th DCA 1967), we held that statutory attorney’s fees need not be pled. Later we held in Hartford Accident & Indemnity Company v. Smith, 366 So. 2d 456 (Fla. 4th DCA 1978), and in McCallum v. McCallum, 364 So. 2d 97 (Fla. 4th DCA 1978), that the order reserved jurisdiction to award past but not future attorney’s fees. However, a common thread in all four of the opinions, cited in the preceding par…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Melvyn B. Frumkes v. Frumkes, 328 So. 2d 34 (Fla. 3d DCA 1976)
- Sunbeam Enters., Inc. v. Mr. and Mrs. Walter Upthegrove, 316 So. 2d 34 (Fla. 1975)
- James W. Church v. Josephine Church, 338 So. 2d 544 (Fla. 3d DCA 1976)
- McCALLUM v. McCALLUM, 364 So. 2d 97 (Fla. 4th DCA 1978)
- Washington v. Rodgers, 201 So. 2d 636 (Fla. 4th DCA 1967)