OSVALDO R. SABINA AND HILB, ROGAL AND HAMILTON COMPANY OF TAMPA BAY, INC., A FLORIDA CORPORATION, APPELLANTS,
v.
DAHLIA CORPORATION, A FLORIDA CORPORATION, APPELLEE
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In this motion for review, the Florida Second District Court of Appeal reversed its own prior award of appellate attorney's fees to Sabina after determining that Dahlia Corporation ultimately prevailed at trial. The court clarified that in interlocutory appeals, the prevailing party on appeal must also be the ultimately prevailing party at trial to retain appellate fees.
A party prevailing on an interlocutory appeal must also be the ultimately prevailing party at trial to be entitled to appellate fees from the interlocutory appeal. Because Dahlia Corporation ultimately prevailed at trial on all counts, Sabina is not entitled to the appellate fees awarded from the prior interlocutory appeal.
[1] A party awarded appellate attorney's fees in an interlocutory appeal must ultimately prevail in the trial court to be entitled to a final judgment for those fees.
[2] In contract actions, only one party can be the prevailing party.
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Join FLexlaw to unlock all legal intelligence“We did not add, which on retrospect we find we should have, that such fees were contingent on Sabina's ultimately prevailing at trial.”
The court acknowledges its prior order was ambiguous and should have conditioned appellate fees on ultimate trial success
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Join FLexlaw to unlock all legal intelligenceSabina and his employer appealed a temporary injunction entered in favor of Dahlia Corporation. The Second District reversed the injunction and awarde…
The full statement of facts, procedural history, and disposition for this case are member content.
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By motion filed pursuant to Florida Rule of Appellate Procedure 9.400(c), the appellee, Dahlia Corporation, seeks review of a final order of the trial court awarding appellate attorney’s fees to the appellants, Osvaldo R. Sabina and Hilb, Rogal and Hamilton Company of Tampa Bay, Inc. Upon consideration of the arguments presented by the parties, we conclude that we did not give sufficiently clear instructions on appellate fees to the trial court after the prior interlocutory appeal in this cause.
In the prior appeal in this cause, Sabina v. Dahlia Corp., 650 So. 2d 96 (Fla. 2d DCA 1995), we reversed a temporary injunction the trial court entered in favor of Dahlia Corporation against Sabina and his new employer. By separate order we granted Sabina’s motion for appellate attorney’s fees “in an amount to be set by the trial court.” We did not add, which on retrospect we find we should have, that such fees were contingent on Sabina’s ultimately prevailing at trial. On remand, the case went to jury trial and the verdict was in favor of Dahlia on all counts tried. Despite the fact that Dahlia Corporation was the ultimately prevailing party, the trial court felt it was constrained by our decision and entered an order in favor of Sabina and his new employer for the appellate attorney’s fees from the interlocutory appeal.
Because this is basically a contract action, there can be only one prevailing party. Green Companies v. Kendall Racquetball Investment, 658 So. 2d 1119, 1121 (Fla. 3d DCA 1995); see also Moritz v. Hoyt Enterprises, 604 So. 2d 807 (Fla.1992) (test for prevailing party is who succeeded on significant issues tried before the trial court). We adhere to the general rule that, in an interlocutory appeal, the party prevailing on the interlocutory appeal must also be the ulti mately prevailing party in the trial court to be entitled to a final judgment of appellate fees from the interlocutory appeal. Cline v. Gouge, 537 So. 2d 625 (Fla. 4th DCA 1988).
’ We do not read the result in Green Companies as contradictory to our holding here. In Green Companies, the party that did not ultimately prevail at trial was allowed to retain its award of appellate fees from a prior appeal. That prior appeal was not interlocutory in nature. Moreover, our sister court found procedural irregularities which militated in favor of allowing the prior appellate fees award to stand. We do not have similar circumstances in the case at hand.
Accordingly, we reverse the award of appellate fees.
DANAHY, A.C.J., and ALTENBERND and FULMER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Bridgestone/Firestone, Inc. v. Herron, 828 So. 2d 414 (Fla. 1st DCA 2002)…to recover appellate attorney’s fees for the appeal unless that party also prevails on the merits of the case in the proceeding on remand. See Allstar Builders Corp., Inc. v. Zimmerman, 706 So. 2d 92 (Fla. 3d DCA 1998); Sabina v. Dahlia Corporation, 678 So. 2d 822 (Fla. 2d DCA 1996); Cline v. Gouge, 537 So. 2d 625 (Fla. 4th DCA 1988). This rule makes good sense in the context of a contract or a statutory provision that limits entitlement to attorney’s fees to the prevailing party. A litigant does not qualify…
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Aksomitas v. Sabitra Maharaj, 771 So. 2d 541 (Fla. 4th DCA 2000)…458 So. 2d 1174 (Fla. 4th DCA 1984); Steinhardt v. Eastern Shores White House Ass’n, 413 So. 2d 785 (Fla. 3d DCA 1982). Those cases did not involve the same issue as Packal. . The second district cited Cline with approval in Sabina v. Dahlia Corp., 678 So. 2d 822 (Fla. 2d DCA 1996); however, the reference was dicta. In Sabina, the second district concluded that it had erroneously awarded prevailing party attorney's fees on a non-final appeal, and it should have done so conditionally rather than unconditional…
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Allstar Builders Corp., Inc. v. Zimmerman, 706 So. 2d 92 (Fla. 3d DCA 1998)…[I]n an interlocutory appeal, the party prevailing on the interlocutory appeal must also be the ultimate prevailing party in the trial court to be entitled to a final judgment of appellate fees from the interlocutory appeal.” Sabina v. Dahlia Corp., 678 So. 2d 822, 822-23 (Fla. 2d DCA 1996)(emphasis added). The prevailing party for attorney’s fees purposes is the party prevailing on the significant issues tried before the court. Green Cos., Inc. v. Kendall Racquetball Inv., Ltd., 658 So. 2d 1119 (Fla. 3d DCA…
Previewing 3 of 8 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)
- The Green Cos., Inc. v. Kendall Racquetball Inv., Ltd., 658 So. 2d 1119 (Fla. 3d DCA 1995)
- Cline v. Gouge, 537 So. 2d 625 (Fla. 4th DCA 1988)
- Sabina v. Dahlia Corp., 650 So. 2d 96 (Fla. 2d DCA 1995)