ASSOCIATION FINANCIAL SERVICES, INC., ET AL., APPELLANTS,
v.
GEORGE LEWIS, ET AL., APPELLEES
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The court reversed an award of attorney's fees and costs because the underlying civil theft judgment had been previously reversed on appeal, leaving only Hewitt entitled to costs as the sole prevailing party.
Attorney's fees under the civil theft statute cannot be awarded when the civil theft judgment has been reversed on appeal, and costs are awardable only to the prevailing party.
[1] Attorney's fees under the civil theft statute are not available when the underlying civil theft judgment has been reversed on appeal for insufficient evidence.
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Join FLexlaw to unlock all legal intelligenceFollowing a prior appellate decision reversing a civil theft judgment, the trial court awarded attorney's fees and costs to three plaintiffs (Lewis, J…
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PER CURIAM.
Following the decision of this court reported as Association Financial Services, Inc. v. Lewis, 519 So. 2d 26 (Fla. 5th DCA 1987), rev. denied, 529 So. 2d 693, 694 (1988), the trial court entered an order in favor of the three plaintiffs, Lewis, Jacob son and Hewitt, awarding a single sum for costs (§ 57.041, Fla.Stat.), and a single sum for attorney’s fees. The defendant, AFS, appeals.
The appealed award of attorney’s fees was based solely on section 812.035(7), Florida Statutes, a part of the civil theft statute. However, our prior decision in this case reversed the judgment based on the civil theft cause of action because the evidence was insufficient to support it. That was the very reason given in the last paragraph of our opinion for denying attorney’s fees on appeal. The award of attorney’s fees was therefore error and is reversed.
Likewise our prior opinion in this case, as amended on motion for rehearing, reversed a judgment in favor of Lewis and Jacobson; therefore, they were not the prevailing parties and were not entitled to an award of costs under section 57.041, Florida Statutes.
The order for attorney’s fees and costs is reversed and the cause is remanded for entry of a judgment in favor of Hewitt for his costs only.
REVERSED and REMANDED.
DANIEL, C.J., and COBB and COWART, JJ., concur.
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Black Diamond Props., Inc. v. Haines, 90 So. 3d 851 (Fla. 5th DCA 2012)…s and costs must be reversed because the appellees are no longer prevailing parties. See Montgomery v. English, 902 So. 2d 836 (Fla. 5th DCA 2005); F.J.W. Enters. Inc. v. Johnson, 749 So. 2d 573 (Fla. 5th DCA 2000); Ass’n Fin. Servs., Inc. v. Lewis, 551 So. 2d 590 (Fla. 5th DCA 1989). REVERSED and REMANDED. SAWAYA and MONACO, JJ., concur.…
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F.J.W. Enters., Inc. v. Johnson, 749 So. 2d 573 (Fla. 5th DCA 2000)…on. F.J.W. Enterprises, Inc. v. Johnson, 746 So. 2d 1145 (Fla. 5th DCA 1999), rehearing denied, (Dec. 22, 1999). Because Johnson is no longer the prevailing party, he is no longer entitled to costs. See Association Financial Services, Inc. v. Lewis, 551 So. 2d 590, 591 (Fla. 5th DCA 1989). REVERSED. W. SHARP, and PETERSON, JJ., concur.…
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Marcel E. Marty v. Bainter, 727 So. 2d 1124 (Fla. 1st DCA 1999)…ently, an award of attorney’s fees and costs predicated on a reversed or vacated final judgment also must be reversed. See Jupiter Mall Realty Corp. v. Rosner’s, Inc., 614 So. 2d 52 (Fla. 4th DCA 1993); Association Financial Services, Inc. v. Lewis, 551 So. 2d 590, 591 (Fla. 5th DCA 1989); Thornburg v. Pursell, 476 So. 2d 323, 324 (Fla. 2d DCA 1985). Appellee in this case properly concedes the award of attorney’s fees and costs should be reversed, pending the final disposition , of the underlying judgment.…
Authorities Cited
- Ass'n Fin. Servs., Inc. v. Lewis, 519 So. 2d 26 (Fla. 5th DCA 1987)