MOTTER ROOFING, INC., PETITIONER,

v.

BRIAN LEIBOWITZ, AND TERRY LEIBOWITZ, HIS WIFE, RESPONDENTS

Fla. 3d DCA | 2002-03-13

No. 3D01-2601

Before JORGENSON, GERSTEN, and SORONDO, JJ.

833 So. 2d 788 Florida District Court of Appeal, Third District (2002) Positive Treatment

Cited by 10 cases

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Holding

The court held that a prevailing plaintiff is entitled to mandatory recovery of attorney's fees, including those incurred on appeal, under Section 768.79, Florida Statutes.

Facts & Procedural History

The appellate court reviewed an order denying a petitioner's request for appellate attorney's fees. The respondent confessed error regarding the denia…

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Topics

Confession Of Error Appellate Attorney'S Fees

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Opinion of the Court

PER CURIAM.

We reverse the order denying appellate attorney’s fees based upon the respondent’s proper confession of error. Section 768.79(1), Florida Statutes (2001), provides for mandatory recovery of reasonable costs and attorney’s fees by a plaintiff who has prevailed upon the merits, providing the plaintiff has complied with the requirements of the statute. See Hartley v. Guetzloe, 712 So. 2d 817 (Fla. 5th DCA 1998).

This Court, along with all district courts in Florida, has ruled that Section 768.79 also applies to fees incurred on appeal. See Lantigua v. Lopes, 696 So. 2d 532 (Fla. 3d DCA 1997); Mark C. Arnold Constr. Co. v. Nat’l Lumber Brokers, Inc., 642 So. 2d 576 (Fla. 1st DCA 1994); Westfield Ins. Co. v. Mendolera, 647 So. 2d 223 (Fla. 2d DCA 1994); Schmidt v. Fortner, 629 So. 2d 1036 (Fla. 4th DCA 1993); Williams v. Brochu, 578 So. 2d 491 (Fla. 5th DCA 1991). Under Sections 768.79 and 59.46, Florida Statutes (2001), attorney’s fees are not discretionary. See Noble v. Martin Mem’l Hosp. Ass’n, Inc., 710 So. 2d 567 (Fla. 4th DCA 1997), review denied, 718 So. 2d 169 (Fla.1998). Thus, the circuit court, sitting in its appellate capacity, departed from the essential requirements of law by denying the petitioner’s request for appellate attorney’s fees. See Disney v. Vaughen, 804 So. 2d 581 (Fla. 5th DCA 2002).

Accordingly, we grant the petition for certiorari and reverse that portion of the order pertaining to appellate attorney’s fees. This case is remanded for determination of fees for all appellate proceedings.

Certiorari granted; reversed in part and remanded.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

Arango v. United Auto. Ins. Co., 901 So. 2d 320 (Fla. 3d DCA 2005)

…es under section 627.428, notwithstanding the fact that there was no decision on the merits. By failing to grant the motion, the circuit court appellate division departed from the essential requirements of law. See Motter Roofing, Inc. v. Leibowitz, 833 So. 2d 788 (Fla. 3d DCA 2002) (holding that the circuit court sitting in its appellate capacity departed from the essential requirements of law by denying petitioner’s application for mandatory appellate attorneys fees under section 768.79(1) of the Florida St…
United Auto. Ins. Co. v. Comprehensive Health Ctr., 173 So. 3d 1061 (Fla. 3d DCA 2015)

…ts and attorney’s fees incurred leading up to a final judgment,” including fees incurred on appeal. State Farm Fire & Cas. Co. v. Rembrandt Mobile Diagnostics, Inc., 93 So. 3d 1161, 1162 (Fla. 4th DCA 2012); accord Motter Roofing, Inc. v. Leibowitz, 833 So. 2d 788, 789 (Fla. 3d DCA 2002) (“This Court, along with all district courts in Florida, has ruled that Section 768.79 also applies to fees incurred on appeal.... Thus, the circuit court, sitting in its appellate capacity, departed from the essential requir…
Gregoire v. Citizens Prop. Ins. Corp. (Fla. 4th DCA 2021)

…izens’ motion for fees is distinguishable. First Real Estate, LLC v. Grant, 88 So. 3d 1073, 1073 (Fla. 1st DCA 2012) (“The contract at issue in this case includes a prevailing party attorney’s fee provision.”); Motter Roofing, Inc. v. Leibowitz, 833 So. 2d 788, 789 (Fla. 3d DCA 2002) (reversing the portion of order denying appellate attorney’s fees based on section 768.79(1), Florida’s offer of judgment statute). CONNER, C.J., WARNER and GROSS, JJ., concur. * * * 1 C…

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Authorities Cited

Susanne Rae Schmidt v. Fortner, 629 So. 2d 1036 (Fla. 4th DCA 1993)
Rondoe Marie Williams v. Jeannine O. Brochu, 578 So. 2d 491 (Fla. 5th DCA 1991)
James Noble, M.D. v. Martin Mem'l Hosp. Ass'n, Inc., 710 So. 2d 567 (Fla. 4th DCA 1997)
David E. Disney, P.A. v. Daniel R. Vaughen, P.A., 804 So. 2d 581 (Fla. 5th DCA 2002)
Mark C. Arnold Constr. Co. v. Nat'l Lumber Brokers, Inc., 642 So. 2d 576 (Fla. 1st DCA 1994)
Westfield Ins. Co. v. Mendolera, 647 So. 2d 223 (Fla. 2d DCA 1994)
Hartley v. Guetzloe, 712 So. 2d 817 (Fla. 5th DCA 1998)
Lantigua v. Lopes, 696 So. 2d 532 (Fla. 3d DCA 1997)

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