TAGGART CORPORATION, APPELLANT,
v.
E. CHRISTOPHER BENZING, APPELLEE
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The trial court must award attorney's fees on appeal as previously ordered, even if evidence of such fees was not presented at trial.
The appellate court previously ruled on the merits and granted attorney's fees for the appeal, remanding to the trial court to assess them. The trial …
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ON MOTION TO REVIEW ORDER DENYING ATTORNEY’S FEES
LETTS, Judge.
We have already ruled on the merits of this cause. See Taggart Corporation v. Benzing, 434 So. 2d 964 (Fla. 4th DCA 1983).
Pursuant to that opinion, we separately granted the appellant’s request for attorney’s fees on appeal and remanded the cause to the trial court to assess same upon due notice and hearing pursuant to Florida Appellate Rule 9.400(b).
Notwithstanding our unequivocal instruction to the contrary, the trial court refused to award these attorney’s fees because the services on appeal “would not have been required had evidence of attorney’s fees been presented at trial.” However, in our original opinion we considered this very point and reached the conclusion that evidence of attorney’s fees did not have to be presented at trial. Moreover, our order granting attorney’s fees on appeal was obviously entered with our knowledge that no evidence of attorney’s fees had been presented at trial.
We, therefore, remand this cause and direct the trial court to consider and assess attorney’s fees on appeal in accordance with our earlier order. We decline to award additional attorney’s fees for the time incurred to file the motion to enforce our earlier mandate. We have reviewed the transcripts of the continued hearing and do not find that the pronounced reason for avoiding our earlier directive was the brainchild of the appellee.
BERANEK and WALDEN, JJ., concur.
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Cited By
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Constellation Condo. Ass'n, Inc. v. Harrington, 467 So. 2d 378 (Fla. 2d DCA 1985)…. Retail Development, Inc., 422 So. 2d 993 (Fla. 5th DCA 1982); Fifty-Six Sixty Collins Avenue Condominium, Inc. v. Dawson, 354 So. 2d 432 (Fla. 3d DCA 1978). Compare Taggart Corp. v. Benzing, 434 So. 2d 964 (Fla. 4th DCA 1983), on motion to review, 451 So. 2d 1046 (Fla. 4th DCA 1984). Of course, there is no question as to the trial court’s authority to enter a post-trial order taxing costs. Roberts v. Askew, 260 So. 2d 492 (Fla.1972). AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH* INSTRUCTIONS. OTT,…
Authorities Cited
- Taggart Corp. v. Benzing, 434 So. 2d 964 (Fla. 4th DCA 1983)