PERCY LOUIS LUIZZA, APPELLANT,
v.
ELVA S. YAEGER, APPELLEE
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Percy Luizza, a defendant who prevailed in a personal injury suit, appealed the trial court's denial of attorney's fees and costs. The appellate court affirmed the denial of attorney's fees but reversed and remanded regarding costs, holding that while defendants cannot recover fees under section 768.79 when they win outright, prevailing defendants may still recover costs under section 57.041.
A defendant may not recover attorney's fees and costs under section 768.79 unless a judgment is rendered in favor of the plaintiff. However, a prevailing defendant may recover costs as a prevailing party under section 57.041, Florida Statutes.
[1] A defendant may not recover attorney's fees and costs under section 768.79, Florida Statutes, unless a judgment is rendered in favor of the plaintiff.
[2] A defendant who prevails in a personal injury action arising from a motor vehicle accident may recover costs as a prevailing party under section 57.041, Florida Statutes.
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“a defendant may not recover attorney's fees and costs following an offer of judgment under section 768.79, Florida Statutes, unless a judgment is rendered in favor of the plaintiff”
Establishes the key holding that defendants cannot recover fees under section 768.79 when they win outright without a judgment for the plaintiff.
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Join FLexlaw to unlock all legal intelligenceLuizza, the defendant in a motor vehicle accident personal injury suit, served an offer of judgment of $6,501.00 on plaintiff Yaeger pursuant to secti…
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We grant Appellant’s motion for clarification. We withdraw our opinion of October 26, 1990, and substitute the following.
THREADGILL, Judge.
Percy Luizza, defendant below, appeals from a final order denying his motion for attorney’s fees and costs. We affirm that portion of the order which denied attorney’s fees, but reverse and remand as to costs.
During the pendency of a suit for personal injuries arising out of a motor vehicle accident, Luizza served an offer of judgment in the amount of $6,501.00 on plaintiff Elva Yaeger pursuant to section 768.-79, Florida Statutes (1987). The jury returned a verdict for Luizza, finding no liability, and the trial court entered final judgment for him, reserving jurisdiction to determine costs and attorney’s fees.
The trial court denied Luizza’s motion for attorney’s fees and costs, based on this court’s decision in Aspen v. Bayless, 552 So. 2d 298 (Fla. 2d DCA 1989). After the briefs were filed in this case, the Florida Supreme Court quashed our decision in Aspen. See Aspen v. Bayless, 564 So. 2d 1081 (Fla.1990). Aspen, therefore, would no longer impede Luizza’s recovery of costs or fees.
Luizza predicates his entitlement to attorney’s fees and costs upon section 768.-79, Florida Statutes. Defendant Luizza is not, however, entitled to recover under this section. In our recent decisions in Gunn v. DePaoli, 562 So. 2d 427 (Fla. 2d DCA 1990) and Kline v. Publix Supermarkets, Inc., 568 So. 2d 929 (Fla. 2d DCA 1990), we held that a defendant may not recover attorney’s fees and costs following an offer of judgment under section 768.79, Florida Statutes, unless a judgment is rendered in favor of the plaintiff. Since there was no judgment rendered in favor of the plaintiff Yaeger, defendant Luizza was not entitled to attorney’s fees and costs pursuant to section 768.79. See also Oriental Imports, Inc. v. Alilin, 559 So. 2d 442 (Fla. 5th DCA 1990); Makar v. Investors Real Estate Management, Inc., 553 So. 2d 298 (Fla. 1st DCA 1989).
The above cited cases do not, however, preclude Luizza’s recovery of costs as a prevailing party under section 57.041, Florida Statutes (1987), and we therefore remand this cause to the trial court for a determination of such costs.
Reversed in part, and remanded.
SCHEB, A.C.J., and DANAHY, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Aspen v. Bayless, 564 So. 2d 1081 (Fla. 1990)
- Oriental Imports, Inc. v. Rosario Alilin and E. Roger Alilin, M.D., 559 So. 2d 442 (Fla. 5th DCA 1990)
- Makar v. Invs. Real Est. Mgmt., Inc., 553 So. 2d 298 (Fla. 1st DCA 1989)
- Aspen v. Bayless, 552 So. 2d 298 (Fla. 2d DCA 1989)
- Kline v. Publix Supermarkets, Inc., 568 So. 2d 929 (Fla. 2d DCA 1990)
- Gunn v. Enso DePAOLI, 562 So. 2d 427 (Fla. 2d DCA 1990)