LUIS SANCHEZ, ET AL., APPELLANT,
v.
STATE FARM FLORIDA INSURANCE COMPANY, APPELLEE
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PER CURIAM.
We deny the appellee’s motion for attorney’s fees. The appellant voluntarily dismissed the appeal before briefs were filed. The only papers filed here by the appellee were a three-paragraph motion to impose sanctions and a four-paragraph motion for attorney’s fees. The issue is not whether the appellee “prevailed” here, see Arango v. United Auto. Ins. Co., 901 So. 2d 320 (Fla. 3d DCA 2005), but rather whether fees and costs must be remanded, a further trial court hearing set, and additional judicial labor incurred, for activity best characterized as “de minimis.” Motion denied.
CORTIÑAS and SALTER, JJ., concur.
[*1210] SHEPHERD, J.,
dissenting.
This case is before us on Appellee State Farm Florida Insurance Company’s motion for appellate attorney fees filed pursuant to section 768.79 of the Florida Statutes (2007), Florida’s “Offer of judgment and demand for judgment” statute. State Farm prevailed below on the merits and obtained a final judgment. Appellants, Luis Sanchez and Martha Sanchez, State Farm’s insureds, initiated an appeal of the final judgment but recently filed a notice of voluntary dismissal, which this Court has recognized. State Farm’s motion for fees remains pending below.
Section 59.46 of the Florida Statutes (2007), provides:
59.46 Attorney’s Fees.—
In the absence of an expressed contrary intent, any provision of a statute or of a contract entered into after October 1, 1977, providing for the payment of attorney’s fees to the prevailing party shall be construed to include the payment of attorney’s fees to the prevailing party on appeal.
There is no contrary intent expressed in section 768.79. If the trial court finds the offer of judgment enforceable below, then State Farm is also entitled to an award of appellate attorney fees. See Commonwealth Prop. Assocs., Inc. v. SunTrust Bank, Sw. Fla., 835 So. 2d 1175 (Fla. 2d DCA 2002); Tucker v. Ohren, 739 So. 2d 684 (Fla. 4th DCA 1999); Gammie v. State Farm Mut. Auto. Ins. Co., 720 So .2d 1163 (Fla. 3d DCA 1998).1
I would grant Appellee’s motion for attorney fees filed here and remand this matter to the trial court with the direction that if the trial court deems the offer of judgment enforceable as to trial court fees, then it also should award appellate attorney fees to State Farm. There is no “de minimis” provision in the statute. See TGI Friday’s, Inc. v. Dvorak, 663 So. 2d 606, 611-613 (Fla.1995) (explaining that section 768.79 of the Florida Statutes “create[s] a mandatory right to attorney’s fees, if the statutory prerequisites have been met”). If the trial court determines the offer of judgment to be enforceable, both trial and appellate fees can easily be determined and awarded at the same hearing.
. Appellants protest that the appellee’s motion filed for trial court fees below also includes a demand for an award of appellate attorney fees. Appellants provide no record support for the allegation. However, a trial court has no authority to grant appellate attorney fees absent a direction or award by this Court. See Fla. R.App. P. 9.400(b); Devido v. Curry, 973 So. 2d 1287 (Fla. 4th DCA 2008). Thus, there should be no duplicate attorney fee awards in this case.
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First Real Est., LLC v. Grant, 88 So. 3d 1073 (Fla. 1st DCA 2012)…rty in this appeal, but it objects to an award of appellate attorney’s fees on the basis that “appellee’s involvement in this appeal has been de minimus.” There is support for Appellant’s position in Sanchez v. State Farm Florida Insurance Company, 997 So. 2d 1209 (Fla. 3d DCA 2008). However, we agree with Judge Shepherd’s dissent in that case that there is no de minimis exception when determining entitlement to a fee award. Id. at 1210. Although the dismissal of this [*1074] appeal at an early stage will cer…
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MacKenzie v. Centex Homes, 281 So. 3d 621 (Fla. 5th DCA 2019)…milarly, the Declaration states that the prevailing party in an action to enforce the governing documents “shall be entitled” to recover attorney’s fees. Neither provision contains a de minimis exception. Accord Sanchez v. State Farm Fla. Ins. Co., 997 So. 2d 1209, 1210 (Fla. 3d DCA 2008) (Shepard, J., dissenting); see also First Real Estate, LLC v. Grant, 88 So. 3d 1073, 1073– 74 (Fla. 1st DCA 2012) (noting that although dismissal at early stage “will certainly impact the amount of fees awarded, it has no be…
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Tawayna Braxton v. Grabowski, 125 So. 3d 936 (Fla. 2d DCA 2013)…Grabowski’s motion for rehearing and her original fee motion. But for this precedent, we would likely follow the lead of the Third District and deny the motion for rehearing because the fees should be de minimis. Sanchez v. State Farm Fla. Ins. Co., 997 So. 2d 1209 (Fla. 3d DCA 2008). But see First Real Estate, LLC v. Grant, 88 So. 3d 1073 (Fla. [*938] 1st DCA 2012) (adopting the dissenting view of Judge Shepherd in Sanchez). Admittedly, we do not know what time may reasonably have been spent on this matter ou…
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- TGI Friday's, Inc. v. Dvorak, 663 So. 2d 606 (Fla. 1995)
- Tucker v. Ohren, 739 So. 2d 684 (Fla. 4th DCA 1999)
- Arango v. United Auto. Ins. Co., 901 So. 2d 320 (Fla. 3d DCA 2005)
- Laurel L. Gammie v. State Farm Mut. Auto. Ins. Co., 720 So. 2d 1163 (Fla. 3d DCA 1998)
- Commonwealth Prop. Assocs., Inc. v. Suntrust Bank, 835 So. 2d 1175 (Fla. 2d DCA 2002)
- Devido v. Curry, 973 So. 2d 1287 (Fla. 4th DCA 2008)