FIRST REAL ESTATE, LLC, APPELLANT,
v.
KAREN T. GRANT, INDIVIDUALLY AND AS KAREN T. GRANT, TRUSTEE, CHIP HARBOUR, III, INDIVIDUALLY AND AS MANAGING MEMBER OF CBH PROPERTIES, LLC, STEPHEN D. BACHMAN, WILLIAM MATHIEU, WORLD OF REALTY OF BAY COUNTY, INC., BEACH BOYS REALTY, INC., OCEAN REEF DEVELOPERS, LLC, AND OCEAN REEF DEVELOPERS, II, LLC, APPELLEES
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Appellant's voluntary dismissal of an appeal does not preclude the prevailing party from recovering appellate attorney's fees under a contract provision, though the early dismissal may reduce the amount awarded.
A prevailing party is entitled to appellate attorney's fees under a contract's prevailing party clause even when the appeal is dismissed early, and there is no de minimis exception to this entitlement.
[1] A prevailing party is entitled to appellate attorney's fees under a contract provision that includes such fees by statute, notwithstanding the appellant's early voluntary…
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Join FLexlaw to unlock all legal intelligenceAppellant filed a breach of contract action against Bachman and others. Judgment was entered in favor of Bachman. Appellant voluntarily dismissed the …
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ON MOTION FOR APPELLATE ATTORNEY’S FEES
Appellant filed a breach of contract action against Appellee Bachman and others. Judgment was entered in favor of Bach-man and Appellant appealed. Shortly after the clerk of the lower tribunal filed the record index, and prior to the parties filing any briefs, Appellant voluntarily dismissed the appeal under rule 9.350(b). Bachman seeks an award of attorney’s fees as the prevailing party in this appeal.
The contract at issue in this case includes a prevailing party attorney’s fee provision, which by virtue of section 59.46, Florida Statutes, includes appellate attorney’s fees. Appellant appears to concede that Bachman is the prevailing party 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 *1074appeal at an early stage will certainly impact the amount of fees awarded, it has no bearing on Bachman’s entitlement to fees.
Accordingly, we grant Bachman’s motion for appellate attorney’s fees, and we remand this case to the trial court to determine the amount of the award if the parties are unable to agree on an amount.
MOTION GRANTED; CASE REMANDED.
ROBERTS, WETHERELL, and ROWE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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MacKenzie v. Centex Homes, 281 So. 3d 621 (Fla. 5th DCA 2019)…ll 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 bearing on . . . entitlement to fees”). Because Centex prevailed on a separate and distinct claim to which man…
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Tawayna Braxton v. Grabowski, 125 So. 3d 936 (Fla. 2d DCA 2013)…ecedent, 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 outside our record, but without a transcript or a brief from the appellant, we…
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Magic Tinting Window & CAR Alarm, Inc. v. Scottsdale Ins. Co., 151 So. 3d 495 (Fla. 3d DCA 2014)…slate, however, we would grant Scottsdale’s motion for fees consistent with Chief Judge Shepherd’s dissent in Sanchez and our sister courts' conclusions in Braxton v. Grabowski, 125 So. 3d 936 (Fla. 2d DCA 2013), and First Real Estate, LLC v. Grant, 88 So. 3d 1073 (Fla. 1st DCA 2012).…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Sanchez v. State Farm Fla. Ins. Co., 997 So. 2d 1209 (Fla. 3d DCA 2008)