WOODROW WILSON, ETC., ET AL., APPELLANTS,
v.
SOUTHERN REPAIR SERVICES, INC., APPELLEE
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PLEUS, J.
Woodrow Wilson, etc., et al., (Wilson) has moved for a clarification as to appellate attorney’s fees. The motion gives us an opportunity to explain our position regarding an award of appellate attorney’s fees in cases remanded for new trial.
Wilson is claiming attorney’s fees under an attorney fee provision in the contract which forms the basis of the suit. The contract contains the typical clause which entitles the prevailing party to attorney’s fees throughout both trial and appellate proceedings. We denied Wilson’s motion for appellate attorney’s fees because the new trial is necessary to determine the prevailing party. Under the language of the attorney’s fees provision in the contract, the question is not who is the prevailing party on appeal. The question is who is the prevailing party in the law suit. The three judge panel signed off on the motion “deny without prejudice.” However, the order signed by the clerk merely states the motion is denied and inadvertently omitted the words “without prejudice.” Should Wilson ultimately prevail in the retrial, he will be entitled to an award of appellate attorney’s fees.
MOTION FOR CLARIFICATION GRANTED.
SAWAYA and PALMER, JJ., concur.
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Termaforoosh v. Wash, 952 So. 2d 1247 (Fla. 5th DCA 2007)…rty clause in the contract. Based on our resolution of this appeal, we deny the sellers’ motion and award the buyer appellate attorney’s fees and costs, conditioned upon ultimately prevailing below. See, e.g., Wilson v. Southern Repair Servs., Inc., 812 So. 2d 445 (Fla. 5th DCA 2001). REVERSED AND REMANDED. THOMPSON and ORFINGER, JJ., concur.…
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Nationwide Mut. Ins. Co. v. Nu-Best Diagnostic Labs, Inc., 810 So. 2d 514 (Fla. 5th DCA 2002)…fees. We grant the motion for rehearing. As Nationwide properly concedes, this court’s order awarding attorney’s fees should have been conditioned on Nationwide’s ultimately prevailing in the litigation. See Wilson v. Southern Repair Services, Inc., 812 So. 2d 445 (Fla. 5th DCA 2001). This court’s order awarding fees to Nationwide is so amended. Nu-Best also moves for rehearing of this court’s order denying its motion for appellate attorney’s fees. Nu-Best contends that although it did not prevail in the app…
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