Opinion
No. 66-961.
September 12, 1967. Rehearing Denied October 9, 1967.
Appeal from the Circuit Court, Dade County, Harold B. Spaet, J.
George J. Baya, Miami, for appellant.
Bolles, Goodwin Ryskamp, Miami, Shorenstein Lewis, Miami Beach, for appellees.
Before CHARLES CARROLL, C.J., BARKDULL, J., and LOPEZ, AQUILINO, Jr., Associate Judge.
This case has previously been before the appellate courts. See: Underwriters Insurance Company v. Sisung, Fla.App. 1965, 174 So.2d 461; Groner v. Underwriters Insurance Company, Fla.App. 1965, 179 So.2d 123. Following the last opinion of this court, the matter came on for trial before the trial court, non-jury, on the issues as made by the pleadings. The appellant attempted to avoid liability upon the affirmative defense of estoppel by judgment or res adjudicata, upon the authority of Elizabethport Cordage Company v. Whitlock, 37 Fla. 190, 20 So. 255; McGregor v. Provident Trust Company of Philadelphia, 119 Fla. 718, 162 So. 323. The trial judge found adverse to the contention of the appellant-defendant and held it liable to the appellee-plaintiff, Margaret Sisung, as a named beneficiary under the mortgage clause of the insurance policy. This appeal seeks review of this final judgment, the appellant contenting the trial judge committed error in the entry thereof. The appellee, Margaret Sisung, has cross-assigned error on the failure of the trial judge to award attorney's fees pursuant to § 627.0127, Fla. Stat., F.S.A.
We affirm the entry of the judgment, there being insufficient evidence to support the affirmative defenses urged by the appellant and sufficient, competent evidence to support the judgment in favor of the appellee. See: Wash Bowl, Inc. v. Miami Coin-O-Wash #3, Inc., Fla. App. 1966, 184 So.2d 674; Bankers Life and Casualty Company v. Pinkerton-Hays Lumber Company, Fla.App. 1966, 186 So.2d 551; Best Concrete Corporation v. Oswalt Engineering Service Corporation, Fla. App. 1966, 188 So.2d 587.
We find merit to the appellee's cross-assignment and hold that the trial court should have awarded [in the final judgment] an attorney's fee to the appellee as the successful party in that litigation and as named beneficiary under the mortgage clause in the insurance policy. See: § 627.0127, Fla. Stat., F.S.A.; Salter v. National Indemnity Co., Fla.App. 1964, 160 So.2d 147.
Therefore, the final judgment here under review is hereby affirmed, with directions to the trial court to amend same by including therein a reasonable amount to be awarded to the appellee, Margaret Sisung, for attorney's fees.
Affirmed with directions.