EMA GEDEON, PETITIONER,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, RESPONDENT
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Florida appellate court quashed denial of appellate attorney's fees to prevailing party in PIP benefits case, holding that fees should be awarded based on ultimate success in trial court, not appellate outcome.
An appellate court should ordinarily grant appellate attorney's fees to a party contingent on that party ultimately prevailing in the case below, not based on success in the appeal itself.
[1] Appellate attorney's fees should be awarded based on a party's ultimate success in the trial court, not on whether that party prevails in the appellate proceeding, subjec…
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Join FLexlaw to unlock all legal intelligence“an appellate court should ordinarily grant a motion for prevailing party attorney's fees contingent on that party ultimately prevailing in the case below”
Aksomitas v. Maharaj standard for appellate attorney's fees awards
Ema Gedeon won a jury trial in county court against State Farm for PIP benefits. The circuit court, reviewing the judgment, reversed and remanded for …
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PER CURIAM.
We grant the petition for writ of certiorari and quash that portion of the circuit court’s appellate decision which denied appellate attorney’s fees. The appeal to the circuit court arose following a county court jury trial, verdict and final judgment for the petitioner, Ema Gedeon, in a suit against respondent, State Farm, for PIP benefits.
The circuit court, sitting in its appellate capacity, reversed the judgment and remanded the case for a new trial due to several errors that occurred during the trial.
The circuit court denied Gedeon’s motion for appellate attorney’s fees solely because she did not prevail in the appeal to the circuit court. In this regard, the circuit court failed to apply the correct law. See Aksomitas v. Maharaj, 771 So. 2d 541, 543-44 (Fla. 4th DCA 2000)(en banc on motion for rehearing of order granting attorney’s fees)(holding that an appellate court should ordinarily grant a motion for prevailing party attorney’s fees contingent on that party ultimately prevailing in the case below), rev. denied, 790 So. 2d 1105 (Fla.2001).
Additionally, since it appears that the circuit court neither considered nor applied the general rule in Aksomitas, the court also did not consider the exceptions in Aksomitas for appeals deemed unnecessary or where the appellee should have confessed error. See id.
Accordingly, we grant the petition for writ of certiorari and remand to the circuit court for that court to consider Aksomitas and to award appellate attorney’s fees contingent on petitioner prevailing in the trial court, so long as the aforementioned exceptions do not apply.
GUNTHER, WARNER and STEVENSON, JJ„ concur.
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Brass & Singer, P.A. v. United Auto. Ins. Co., 944 So. 2d 252 (Fla. 2006)…P.A. v. United Automobile Insurance Co., 919 So. 2d 473 (Fla. 3d DCA 2005), which the Third District certified to be in direct conflict with the decision of the Fourth District Court of Appeal in Gedeon v. State Farm Mutual Automobile Insurance Co., 805 So. 2d 119 (Fla. 4th DCA 2002). The conflict issue is a pure question of law: whether the language of section 627.428, Florida Statutes (2004), authorizes an appellate court to conditionally award appellate attorney’s fees to an insured that loses on appeal on…
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Brass & Singer, P.A. v. United Auto. Ins. Co., 919 So. 2d 473 (Fla. 3d DCA 2005)…ourt to conditionally grant appellate attorney’s fees and remand for a determination of the amount, contingent on the insured recovering judgment against the insurer at the conclusion of the case. [*475] See Gedeon v. State Farm Mut. Auto. Ins. Co., 805 So. 2d 119 (Fla. 4th DCA 2002); Aksomitas v. Maharaj, 771 So. 2d 541, 543-45 (Fla. 4th DCA 2000) (en banc). The Fifth District takes the position that where, as here, the insured loses the appeal but there will be a new trial, the insured is not entitled to a…
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Progressive Express Ins. Co. v. Miami Dade Health & Rehab Servs., 922 So. 2d 221 (Fla. 3d DCA 2005)…HRS is not entitled to attorney fees under section 627.428(1), whatever the ultimate outcome of the case may be. We grant the petition and quash the order below. In so doing, we certify direct conflict with Gedeon v. State Farm Mut. Auto. Ins. Co., 805 So. 2d 119, 120 (Fla. 4th DCA 2002) and Aksomitas v. Maharaj, 771 So. 2d 541, 543-45 (Fla. 4th DCA 2000). Petition granted; order quashed; direct conflict certified.…
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- Aksomitas v. Sabitra Maharaj, 771 So. 2d 541 (Fla. 4th DCA 2000)