VINNY C. SMITH, R. B. COUNCIL, JR., J. M. COUNCIL, SR., WINIFRED EDHOLM, ELMINA C. PALMER, R. W. EDHOLM AND H. F. COUNCIL, APPELLANTS,
v.
CITY OF TALLAHASSEE, A MUNICIPAL CORPORATION CREATED AND EXISTING UNDER THE LAWS OF THE STATE OF FLORIDA, APPELLEE
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The court denied the petition for attorney's fees for services rendered on appeal, without prejudice to its presentation in the lower court.
Appellants, landowners, sought attorney's fees for services rendered in connection with an appeal where the prior judgment was reversed and remanded f…
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ON PETITION FOR ASSESSMENT OF AN ATTORNEY’S FEE AND ON MOTION TO STRIKE
The appellants have filed their petition for the assessment of an attorney’s fee for their attorneys’ services rendered in connection with the appeal in this case. The appellants are the landowners, and in Smith et al. v. City of Tallahassee, 191 So.2d 446, opinion filed October 4, 1966, we reversed the judgment of the lower court and remanded for a new trial.
At the time of the commencement of this action F.S. § 73.16, F.S.A., provided that all costs of the proceeding including a reasonable attorney’s fee, should be assessed by the court, meaning the trial court. Since then, effective October 1, 1965, F.S. § 73.131, F.S.A., provides that upon appeal a reasonable attorney’s fee is to be assessed by the appellate court.
Two of the factors required to be considered in the award of an attorney’s fee are the degree of success and the amount involved. At this stage of the proceedings we cannot determine either of these factors, since the jury may award no more upon the retrial, in which event the appellants would simply have gone up the hill and come down again, and as to the second factor, the amount involved may run all the way from the City’s low appraisal to a sum in excess of $100,000 if the jury accepts the appellants’ view on severance damage.
We feel that the matter of the award of fees for services in this court should be considered by the trial court at the conclusion of these proceedings, taking into consideration the factors discussed above. Reading F.S. § 73.091, F.S.A., in pari materia with F.S. § 73.131, F.S.A., we are of the view that the provisions in the latter section are simply directory and not mandatory upon this court; that from a practical standpoint and in the interest of complete justice, the assessment of fees *382would best be done by the trial court; and we accordingly deny the petition for assessment of attorney’s fee, without prejudice to its presentation in the lower court upon the conclusion of these proceedings.
What we have said disposes of the appellee’s motion- to strike the petition for fees upon the ground that it was not timely filed,' and such motion is hereby denied.
WIGGINTON, Acting C. J., and JOHNSON, J., concur.
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Brevard Cnty. v. Canaveral Props., Inc., 696 So. 2d 1244 (Fla. 5th DCA 1997)…e record. This is the preferred procedure from a practical standpoint, since an appellate court lacks the resources to conduct such a hearing. This court need not set the fee itself, despite the language of the statute. Smith v. City of Tallahassee, 198 So. 2d 380 (Fla. 1st DCA 1966). The initial question in this matter is whether the trial court properly struck the County’s offer of judgment made earlier in the proceedings. We conclude, as did another panel of judges sitting in a related case,2 that the off…
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State of Fla. Dep't OF Natural Res. v. Hudson Pulp & Paper Corp., 363 So. 2d 822 (Fla. 1st DCA 1978)…to our conclusions as reached in the foregoing opinion on the merits: We recede from our holding with reference to attorney’s fees and costs incident to this appeal. In conformity with the procedures suggested by this court in Smith v. Tallahassee, 198 So. 2d 380 (Fla. 1st DCA 1966) and recognized by the Supreme Court of Florida in City of Hallandale v. Chatlos, 236 So. 2d 761 (Fla.1970), we further remand to the trial court for determination of the value of attorney’s fees and costs to be fixed incident to…
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Division OF Administration v. Decker, 450 So. 2d 1220 (Fla. 2d DCA 1984)…award. These statutory criteria clearly contemplate that the fee determination is to be made at the conclusion of the proceedings. See City of St. Petersburg v. Vinoy Park Hotel Co., 354 So. 2d 136 (Fla. 2d DCA 1978); Smith v. City of Tallahassee, 198 So. 2d 380 (Fla. 1st DCA 1966). The Florida Supreme Court has indicated that costs in eminent domain proceedings should be assessed “as costs are assessed in all other civil actions,” Florida East Coast Railway v. Martin County, 171 So. 2d 873, 883 (Fla.), cer…
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- Vinny C. Smith v. City OF Tallahassee, 191 So. 2d 446 (Fla. 1st DCA 1966)