ROY E. LUCKHARDT AND LEONA LUCKHARDT, HIS WIFE, AND LUCKHARDT CONSTRUCTION CO., INC., APPELLANTS.
v.
JOSEPH H. PARDIECK AND MARGARET W. PARDIECK, HIS WIFE, APPELLEES
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The appellate court strikes from a supersedeas bond an order requiring appellants to pay appellees' attorney's fees on appeal in a mortgage foreclosure case, holding that attorney's fees are not recoverable for resisting an appeal from a final decree on its merits.
Attorney's fees for resisting an appeal from a final judgment or decree on its merits are not recoverable and are improper to require as a condition in a supersedeas bond. The portion of the order and bond providing for attorney's fees is stricken, and appellees' motion for attorney's fees is denied.
“Attorneys' fees, in resisting an appeal from a final judgment or final decree on the merits, are not recoverable and it is improper to require such a condition in a supersedeas bond.”
Establishes the core holding that attorney's fees cannot be included in supersedeas bonds for appeals from final decrees.
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Join FLexlaw to unlock all legal intelligenceAppellees obtained a final decree of foreclosure against appellants. Appellants filed a motion in trial court for a supersedeas bond under Florida law…
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After the entry of a final decree of foreclosure in favor of the appellees, who were plaintiffs below, the defendants, appellants here, filed their motion in the trial court for an order fixing the amount and conditions of a supersedeas bond as authorized by Florida Appellate Rule 5.5, 31 F.S.A., and Section 59.13(1), Florida Statutes, F. S.A. After hearing, the court fixed the amount of the bond “conditioned to pay costs on appeal, legal interest, attorneys fees, and damages for delay.” The authority for fixing the terms and conditions of a supersedeas bond is set forth in Florida Appellate Rule 5.8 and Section 59.13(4), Florida Statutes, F.S.A. Pursuant to Florida Appellate Rule 5.10, and Section 59.13 (6), Florida Statutes, the appellants then filed their motion in this court to review and modify the order and supersedeas bond upon the ground that the inclusion of the words “attorneys fees” in the order and bond are not proper. The appellees countered by their motion for attorney’s fees in resisting the appellants’ motion to modify, contending that Florida Appellate Rule 3.16(e) was applicable. This cause is now pending in this court for hearing on the merits of the appeal.
The appellees contend that the note securing the mortgage foreclosed provides that the makers agree to pay all collection costs “including reasonable attorneys fees.” They further maintain that they should be allowed attorney’s fees under the authority of Travers v. Tilton, Fla.App.1961, 134 So. 2d 807. In that case, the parties explicitly agreed that the appellees’ attorney should be allowed attorney’s fees on appeal and that is no authority for the allowance of such fees when the question is raised before the court, as in the instant case. Florida Appellate Rule 3.16(e) becomes applicable only where attorneys fees are allowed by law for services in the appellate court.
*750The instant case comes within the rule stated in Larson v. Higginbotham, Fla.1953, 66 So.2d 40, 41. There the lower court had entered an order fixing the terms and conditions of a supersedeas bond in an appeal from a final decree. The bond fixed the usual conditions but also included a sum for attorney’s fees in the appeal. In modifying the order, Justice Drew, speaking for the Supreme Court, said:
“Attorneys’ fees, in resisting an appeal from a final judgment or final decree on the merits, are not recoverable and it is improper to require such a condition in a supersedeas bond. The latest expression of this court on the subject is the following quotation from Bernstein v. Bernstein, Fla., 43 So.2d 356, 358:
“ ‘The purpose of the bond is to protect the party adversely affected against the consequences of the supersedeas or stay, and not against the appeal when the appeal is of right, except when a money judgment or decree is appealed, in which event the bond to be exacted is to pay same. See Section 59.13(3), F.S.1941, F.S.A.’
* * * * * *
“Anything in Kahn v. American Surety Co. of New York, 120 Fla. 50, 162 So, 335; Tonnelier v. Tonnelier, 133 Fla. 691, 182 So. 900, or City of Miami v. Huttoe, Fla., 40 So.2d 899, appearing to hold that attorneys’ fees for services in resisting an appeal from a final judgment or final decree on its merits [emphasis theirs] in the Supreme Court is hereby overruled and receded from, [emphasis ours]
“This is not an appeal from an interlocutory decree, where a different rule prevails. See Lawson v. County Board of Public Instruction, 114 Fla. 153, 154 So. 170, 171, * *
The motion of the appellants to review and modify the order and supersedeas bond was timely and properly made. Ritter v. Bentley, Fla.1955, 78 So.2d 573 is not controlling, as that was an action on a super-sedeas bond which provided for the payment of attorney’s fees. Accordingly, that part of the order and supersedeas bond providing for attorney’s fees is stricken and it therefore follows that the appellees’ motion for attorney’s fees is denied.
SHANNON, C. J., and SMITH and WHITE, JJ., concur.
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Ohio Realty Inv. Corp. v. S. Bank OF W. Palm Beach, 300 So. 2d 679 (Fla. 1974)…sions in the mortgage and promissory note whereby the mortgagor Ohio Realty would pay the mortgagee Southern Bank “reasonable attorney’s fees” in the event of default and foreclosure. This award conflicts with our decisions in Luckhardt v. Pardieck, 142 So. 2d 749 (Fla.App.2d 1962), and Lake Killarney Apts., Inc. v. Estate of Thompson, 283 So. 2d 102 at 104 (Fla.1973): “Also before us is the District Court’s order awarding attorney’s fees to one of the respondents. The notes involved in this case do not cont…
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Sholkoff v. Boca Raton Cmty. Hosp., Inc., 693 So. 2d 1114 (Fla. 4th DCA 1997)…ortgage provision for fees in the event of default and foreclosure — did not expressly provide for fees on appeal. The court based its decision on Lake Killamey Apts. Inc. v. Estate of Thompson, 283 So. 2d 102 (Fla.1973); and Luckhardt v. Pardieck, 142 So. 2d 749 (Fla. 2d DCA 1962). In Lake Killamey Apts., the issue was identical: whether a general agreement for attorney’s fees that did not expressly include appeals authorized an award of appellate fees. Luck-hardt, however, involved a trial court’s order in…
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John T. Wood Homes, Inc. v. AIR Control Prods., Inc., 177 So. 2d 709 (Fla. 1st DCA 1965)…ective as to lienors except the contractor until the owner has recorded notice of default in the clerk’s office and posted a certified copy thereof.” . Boston Insurance Company v. Smith, 149 So. 2d 68 (Fla.App. 1st, 1963). . Luckhardt v. Pardieck, 142 So. 2d 749 (Fla.App.2d, 1962). . Larson v. Higginbotham, 66 So. 2d 40 (Fla.1953). . Travers v. Tilton, 134 So. 2d 807 (Fla.App.2d, 1961).…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lawson v. Cnty. Bd. of Pub. Instruction, 114 Fla. 153 (Fla. 1934)
- Garland v. The OLD Mill Stream Co., 66 So. 2d 40 (Fla. 1953)
- Bernstein v. Bernstein, 43 So.2d 356 (Fla. 1949)
- Kahn v. Am. Sur. Co. of N.Y., 120 Fla. 50 (Fla. 1935)
- Tonnelier v. Tonnelier, 133 Fla. 691 (Fla. 1938)
- City of Miami v. Huttoe, 40 So. 2d 899 (Fla. 1949)
- Travers v. Ransome E. Tilton and Deane H. Stokes, 134 So. 2d 807 (Fla. 2d DCA 1961)
- Kirkland D. Wilson v. Fla. SUN Deck Homes Co., 78 So. 2d 573 (Fla. 1955)