EDWARD L. NEZELEK, INC., APPELLANT,
v.
ELEVATOR SALES AND SERVICE, INC., APPELLEE
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Edward L. Nezelek, Inc. appeals a bench trial judgment entered against it by Elevator Sales and Service, Inc. The appellate court affirmed the trial court's findings on the merits but reversed the portion of the judgment requiring the supersedeas bond to include payment of the plaintiff's attorney's fees on appeal.
The court affirmed the judgment on the merits as supported by competent, substantial evidence. However, the court reversed the portion of the judgment requiring the supersedeas bond to include payment of attorney's fees, as there is no authority under Florida Rules of Appellate Procedure for such a provision in a supersedeas bond for a judgment for money alone.
[1] A trial court's findings of fact are presumed correct and will be affirmed on appeal if supported by competent, substantial evidence.
[2] A supersedeas bond for a money judgment on appeal cannot include a provision for the payment of attorney's fees incurred on appeal.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“we find that there was competent, substantial evidence to support the trial court's findings and, therefore, the judgment is affirmed with respect to the contentions made under the defendant's first point directed to the merits of the cause”
The court's standard for reviewing factual findings from a bench trial and the basis for affirming on the merits.
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Join FLexlaw to unlock all legal intelligenceThe trial court entered a final judgment against defendant Edward L. Nezelek, Inc. in favor of plaintiff Elevator Sales and Service, Inc. following a …
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PER CURIAM.
The defendant appeals a final judgment entered at the conclusion of a trial before the court without jury. His contention is that the court’s findings are not based upon sufficient evidence. From our view of the record, we find that there was competent, substantial evidence to support the trial court’s findings and, therefore, the judgment is affirmed with respect to the contentions made under the defendant’s first point directed to the merits of the cause. See Manchester Insurance & Indemnity Company v. Novack, 284 So. 2d 433 (Fla. 3d DCA 1973).
The defendant’s second point urges error in that portion of the judgment which:
“ORDERED AND ADJUDGED that should Appeal be taken by Defendant EDWARD L. NEZELEK OF FLORIDA, INC., from the aforesaid Final Judgment such Notice of Appeal would operate as a supersedeas and stay all proceedings in this cause upon the Defendant filing herein a bond in the amount of $10,877.00 with good and sufficient surety, to be approved by the Clerk of this Court, conditioned to pay to the Plaintiff all costs and damages including the reasonable fees for the services of his attorney on this Appeal which he may sustain by reason of the stay of these proceedings in the event this Final Judgment Appeal shall be affirmed or the Appeal dismissed.”
There is no authority for the inclusion of the provision for the payment of an attorney’s fee on appeal in a supersedeas of a judgment for money alone. See Fla.R. App.P. 9.310(b)(1).
Accordingly, that portion of the judgment specifying that the supersedeas bond shall provide for the payment of an attorney’s fee is reversed and that provision in the bond filed by the defendant for the payment of an attorney’s fee is stricken therefrom.
Affirmed in part and reversed in part with directions.
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Citator
Authorities Cited
- Manchester Ins. & Indem. Co. & Charles Hines v. Novack, 284 So. 2d 433 (Fla. 3d DCA 1973)