STEVEN LOUIS FOLEY, PETITIONER,
v.
THE HONORABLE J. LEONARD FLEET, CIRCUIT JUDGE OF THE SEVENTEENTH JUDICIAL CIRCUIT COURT, IN AND FOR BROWARD COUNTY, FLORIDA, ET AL., RESPONDENT
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In a divorce modification proceeding, the former wife sought attorney's fees as the 'prevailing party' under the parties' property settlement agreement after she prevailed on the former husband's petition for writ of prohibition. The court held that prevailing on one non-merits procedural issue does not make a party the prevailing party in the overall litigation for purposes of awarding attorney's fees.
The former wife is not the prevailing party for purposes of attorney's fees merely because she prevailed on the husband's prohibition petition. A party is the prevailing party only if it prevails on the significant issues in the litigation. Prevailing on a procedural or non-merits aspect does not establish prevailing party status for attorney's fees.
[1] A party is considered the prevailing party for attorney's fees when they prevail on the significant issues in the litigation.
[2] Prevailing on an aspect of a proceeding that does not involve the merits of the case does not make a party the prevailing party for attorney's fees.
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Join FLexlaw to unlock all legal intelligence“[T]he party prevailing on the significant issues in the litigation is the party that should be considered the prevailing party for attorney's fees.”
Establishes the controlling legal standard for determining prevailing party status under the property settlement agreement.
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Join FLexlaw to unlock all legal intelligenceThe parties had a property settlement agreement providing for attorney's fees to the prevailing party in any court intervention to modify or enforce t…
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KLEIN, Judge.
After denying the former husband’s petition for writ of prohibition in a modification proceeding, this court granted the former wife’s motion for attorney’s fees “contingent upon respondent being the prevailing party” within the meaning of the parties’ property settlement agreement. The trial court thereupon awarded her attorney’s fees solely as a result of her prevailing on the prohibition, and former husband seeks review of that order by motion filed under Fla.RApp.P. 9.400(c). We reverse.
In their agreement the parties provided: In the event either party seeks Court intervention for the purposes of modifying or enforcing any part of this Agreement, the prevailing party shall be entitled to an award of a reasonable attorney’s fee and costs arising out the lawsuit to enforce or modify, whether the same be incurred in the trial court, in post judgment proceedings, mediation or in any appellate court.
The sole issue we are called upon to decide, which is whether former wife is a prevailing party within the meaning of the agreement, was answered in Moritz v. Hoyt Enterprises, Inc., 604 So. 2d 807, 810 (Fla.1992):
[T]he party prevailing on the significant issues in the litigation is the party that should be considered the prevailing party for attorney’s fees.
The fact that the wife prevailed in this court on the husband’s petition for writ of prohibition, in which she sought the recusal of the trial judge, does not make her the prevailing party in the litigation. She merely prevailed on one aspect of the proceeding which did not involve the merits. See Allstate Ins. Co. v. de la Fe, 647 So. 2d 965 (Fla. 3d DCA 1994). Normally, unless there are separate and distinct claims which would support independent actions, there will only be one prevailing party in litigation. Reinhart v. Miller, 548 So. 2d 1176 (Fla. 4th DCA 1989).
When a party moves for “prevailing party” attorney’s fees in connection with a non-final appeal or petition, this court normally grants the motion conditioned on the movant ultimately prevailing in the litigation. While it seems anomalous to require a motion for prevailing party attorney’s fees to be filed or considered in an interlocutory appellate proceeding, since that proceeding will not determine who ultimately prevails, it is necessary because without authorization from an appellate court, a trial court cannot award attorney’s fees for services rendered on an appeal. Hornsby v. Newman, 444 So. 2d 90 (Fla. 4th DCA 1984) and Travelers Indemnity Co. of America v. Morris, 390 So. 2d 464 (Fla. 3d DCA 1980). We reverse that portion of the order determining that the former wife is a prevailing party without prejudice to her seeking its reinstatement if she ultimately prevails.
DELL, C.J., and STONE, J., concur.
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Aksomitas v. Sabitra Maharaj, 771 So. 2d 541 (Fla. 4th DCA 2000)…the court.” Moritz v. Hoyt Enter., Inc., 604 So. 2d 807, 810 (Fla.1992). Trial courts, however, have no authority to award prevailing party attorney’s fees for an appeal unless specifically authorized to do so by the appellate court. Foley v. Fleet, 652 So. 2d 962 (Fla. 4th DCA 1995); Travelers Indem. Co. of Am. v. Morris, 390 So. 2d 464 (Fla. 3d DCA 1980). Appellate courts are thus required to rule on motions for prevailing party attorney’s fees without knowing who will ultimately prevail. This court grants…
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Stringer v. Lawrence Katzell, M.D., 695 So. 2d 369 (Fla. 4th DCA 1997)…hen a party moves for “prevailing party” attorney’s fees where the ultimate outcome of the litigation remains unresolved, this court normally grants the motion conditioned on the mov-ant’s ultimately prevailing in the litigation. See Foley v. Fleet, 652 So. 2d 962 (Fla. 4th DCA 1995); Cline v. Gouge, 537 So. 2d 625 (Fla. 4th DCA 1988). In Mainlands Construction Co. v. Wen-Dic Construction Co., 482 So. 2d 1369 (Fla.1986), our supreme court held that even where a party was successful in overturning a dismissal…1 / 2
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Stofman v. World Marine Underwriters, Inc., 729 So. 2d 959 (Fla. 4th DCA 1999)…the appeal in the earlier litigation involving the liability carrier. We agree. A [*961] trial court cannot award attorney’s fees for appellate services unless the appellate court authorizes such fees upon motion made in that appeal. Foley v. Fleet, 652 So. 2d 962 (Fla. 4th DCA 1995). . World Marine failed to seek fees from this court during the appeal in that litigation and, therefore, is not entitled to recover such fees under the offer of judgment statute in this later appeal involving claims against the a…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Moritz v. Hoyt Enters., Inc., 604 So. 2d 807 (Fla. 1992)
- Reinhart v. Miller, 548 So. 2d 1176 (Fla. 4th DCA 1989)
- Hornsby v. Newman, 444 So. 2d 90 (Fla. 4th DCA 1984)
- Travelers Indem. Co. OF Am. v. Morris, 390 So. 2d 464 (Fla. 3d DCA 1980)
- Allstate Ins. Co. v. DE LA FE, 647 So. 2d 965 (Fla. 3d DCA 1994)