ALLSTAR BUILDERS CORPORATION, INC., APPELLANT,
v.
TRACY ZIMMERMAN D/B/A MODULAR ASSEMBLERS, APPELLEE
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Allstar Builders sought review of a trial court's award of appellate attorney's fees to Zimmerman following an interlocutory appeal. The court reversed, holding that appellate fees cannot be awarded until the prevailing party in the interlocutory appeal is also the ultimate prevailing party in the full litigation.
A party prevailing on an interlocutory appeal is not entitled to a final judgment of appellate fees unless and until that party becomes the ultimate prevailing party in the trial court. The award was premature because affirming the dissolution of the replevin writ does not determine who will prevail on all issues when the case is fully tried.
[1] A motion for review pursuant to Florida Rule of Appellate Procedure 9.400(c) is the proper procedural vehicle to challenge a trial court's award of appellate attorney's f…
[2] A party prevailing on an interlocutory appeal is not entitled to a final judgment of appellate attorney's fees from that appeal unless that party is also the ultimate pre…
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Join FLexlaw to unlock all legal intelligence“[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.”
Establishes the controlling legal standard that appellate fees cannot be awarded in interlocutory appeals unless the prevailing party on the interlocutory appeal becomes the ultimate prevailing party in the full litigation.
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Join FLexlaw to unlock all legal intelligenceIn a prior appeal (Allstar Builders Corp., Inc. v. Zimmerman, 699 So.2d 257), the court affirmed an order dissolving a prejudgment writ of replevin in…
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PER CURIAM.
Appellant Allstar Builders Corporation, Inc., seeks review pursuant to Florida Rule of Appellate Procedure 9.400(c) of the trial court’s order awarding appellee Tracy Zimmerman, d/b/a Modular Assemblers, appellate attorney’s fees. We grant the motion for review and reverse the trial court’s award.
In Allstar Builders Corp., Inc. v. Zimmerman, 699 So. 2d 257 (Fla. 3d DCA 1997), we affirmed an order dissolving a prejudgment writ of replevin. Consequently, we granted Zimmerman’s motion for appellate attorney’s fees. Upon remand, Zimmerman moved the trial court for a fee award. The court granted the motion, and entered a judgment awarding Zimmerman $18,450 in appellate fees. Allstar filed a Rule 9.400(c) motion for review correctly asserting that the fee judgment was premature. The Rule 9.400(c) motion is the correct vehicle to review this judgment. Cheung v. Executive China Doral, Inc., 638 So. 2d 82 (Fla. 3d DCA 1994); Hernstadt v. Brickell Bay Club Condominium Ass’n, Inc., 602 So. 2d 967 (Fla. 3d DCA 1992).
“[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 1995).
In this case, we affirmed an order dissolving a prejudgment writ of replevin. This is not a harbinger of who will prevail when all the issues in the case are fully aired at trial. At this juncture, Zimmerman is not the ultimate prevailing party in the litigation and any award of fees is premature. This result would, of course, be different if the replevin count were ultimately adjudicated in Zimmerman’s favor and a judgment entered thereon. A fee award at that time would be appropriate.
However, at this juncture in the proceedings we must reverse the fee award.
Reversed and remanded.
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Bridgestone/Firestone, Inc. v. Herron, 828 So. 2d 414 (Fla. 1st DCA 2002)…, a prevailing party in an interlocutory appeal is not entitled 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 atto…
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Hoenstine v. State Farm Fire & Cas. Co., 742 So. 2d 853 (Fla. 5th DCA 1999)…s entered on July 6, 1999. Appellee’s motion for rehearing was one day late. Appellee’s second motion for rehearing of the same order is unauthorized and untimely and is also denied. Appellee’s reliance on Allstar Builders Corp. Inc. v. Zimmerman, 706 So. 2d 92 (Fla. 3d DCA 1998) is misplaced as that case involved a Florida Rule of Appellate Procedure 9.400(c) motion for review of a trial court’s order granting a motion for appellate attorney’s fees and entering a judgment for the fees. It is undisputed th…
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Balmaseda v. Okay Ins. Exch. of Am., LLC, 240 So. 3d 146 (Fla. 3d DCA 2018)…the party prevailing on the interlocutory appeal must also be the ultimately prevailing party in the trial court to be entitled to a final judgment of appellate fees from the interlocutory appeal.”); see also Allstar Builders Corp. v. Zimmerman, 706 So. 2d 92, 92 (Fla. 3d DCA 1998). The posture of the case reflects that, although the trial court granted summary judgment in favor of Balmaseda as to Okay Insurance’s request for injunctive relief, the trial court denied Balmaseda’s motion for summary jud…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- The Green Cos., Inc. v. Kendall Racquetball Inv., Ltd., 658 So. 2d 1119 (Fla. 3d DCA 1995)
- Cheung v. Executive China Doral, Inc., 638 So. 2d 82 (Fla. 3d DCA 1994)
- Sabina v. Dahlia Corp., 678 So. 2d 822 (Fla. 2d DCA 1996)
- Allstar Builders Corp., Inc. v. Zimmerman, 699 So. 2d 257 (Fla. 3d DCA 1997)
- Johnson v. State, 699 So. 2d 257 (Fla. 5th DCA 1997)
- Apparel Affiliates, Inc. v. Coren, 602 So. 2d 967 (Fla. 4th DCA 1992)
- Hernstadt v. Brickell BAY Club Condo. Ass'n, Inc., 602 So. 2d 967 (Fla. 3d DCA 1992)