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Motter Roofing, Inc., v. Leibowitz

District Court of Appeal of Florida, Third District
Mar 13, 2002
833 So. 2d 788 (Fla. Dist. Ct. App. 2002)

Summary

holding trial court erred in denying fees because under § 768.79 "attorney's fees are not discretionary"

Summary of this case from Lebbin-Spector Family Tr. v. Transamerica Life Ins. Co.

Opinion

Case No. 3D01-2601.

Opinion filed March 13, 2002.

A Petition for Writ of Certiorari to the Circuit Court, Miami-Dade County, Ronald M. Friedman, Michael A. Genden, and Scott M. Bernstein, Judges. LOWER TRIBUNAL NO. 00-108 AP.

H. Hugh McConnell, Coral Gables, for appellant.

Randy D. Ellison (West Palm Beach), for appellees.

Before JORGENSON, GERSTEN, and SORONDO, JJ.


CONFESSION OF ERROR

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, 27 Fla. L. Weekly D223 (Fla. 5th DCA Jan. 18, 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.


Summaries of

Motter Roofing, Inc., v. Leibowitz

District Court of Appeal of Florida, Third District
Mar 13, 2002
833 So. 2d 788 (Fla. Dist. Ct. App. 2002)

holding trial court erred in denying fees because under § 768.79 "attorney's fees are not discretionary"

Summary of this case from Lebbin-Spector Family Tr. v. Transamerica Life Ins. Co.

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 of the Florida Statutes

Summary of this case from Arango v. United Auto. Ins. Co.

reversing the portion of order denying appellate attorney's fees based on section 768.79, Florida's offer of judgment statute

Summary of this case from Gregoire v. Citizens Prop. Ins. Corp.
Case details for

Motter Roofing, Inc., v. Leibowitz

Case Details

Full title:MOTTER ROOFING, INC., Petitioner, v. BRIAN LEIBOWITZ, and TERRY LEIBOWITZ…

Court:District Court of Appeal of Florida, Third District

Date published: Mar 13, 2002

Citations

833 So. 2d 788 (Fla. Dist. Ct. App. 2002)

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Steffen v. Akerman, Senterfitt Edison, P.A.

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