UNITED SERVICES AUTOMOBILE ASSOCIATION, APPELLANT,
v.
MICHAEL SMOLENSKY, A MINOR, BY AND THROUGH HIS FATHER AND NEXT FRIEND, GERALD L. SMOLENSKY, AND GERALD L. SMOLENSKY, INDIVIDUALLY, APPELLEES (TWO CASES)
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The trial court erred in awarding attorney's fees after a notice of appeal was filed, as it had lost jurisdiction.
USAA appealed a declaratory judgment regarding uninsured motorist coverage and an award of attorney's fees. The trial court entered a final judgment a…
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CAMPBELL, Judge.
In Case No. 80-758, United Services Automobile Association (USAA) appeals from a declaratory judgment with respect to uninsured motorist coverage. In Case No. 80-1173, USAA appeals from an award of attorney’s fees to the appellees.
After consideration of the record and the briefs and hearing oral argument, we find no error in the trial court’s final judgment which determined that the Smo-lensky’s settlement with the tortfeasor did not prejudice USAA. We do find that the trial court committed error by awarding attorney’s fees to the appellees after a notice of appeal from the final judgment had been filed.
Florida Rule of Appellate Procedure 9.600(a) provides that the trial court has concurrent jurisdiction over procedural matters prior to transmission of the record. Attorney’s fees are not purely procedural matters; therefore, rule 9.600(a) does not apply here.
Rule 9.600(b) provides that when the lower court has lost jurisdiction because of an appeal, the appellate court by order may permit the lower court to proceed on specifically stated matters during the appeal. A request for relinquishment of jurisdiction to the trial court for a ruling on attorney’s fees would have been the proper method of proceeding here. As there was no relinquishment of jurisdiction by the appellate court, the lower court was without jurisdiction to enter an order awarding attorney’s fees. See Wilson Realty, Inc. v. David, 369 So. 2d 75 (Fla.2d DCA 1979).
Accordingly, the judgment is affirmed; the order awarding attorney’s fees is vacated; attorney’s fees are awarded to the ap- pellees on appeal; and the ease is remanded in order for the trial court to conduct a hearing on an award of attorney’s fees to the appellees for trial and on appeal.
GRIMES, Acting C. J., and DANAHY, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Cited By
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Hudson v. Hofmann, 471 So. 2d 117 (Fla. 2d DCA 1985)…dgment. Since respondents did not request a relinquishment of jurisdiction to the trial court, the trial court was without jurisdiction when it acted after appeal was taken. Fla.R.App.P. 9.600(b); United Services Automobile Association v. Smolensky, 391 So. 2d 355 (Fla. 2d DCA 1980); Wilson Realty, Inc. We grant certiorari and quash the order awarding the assessment for permanent utilities improvements. Our holding does not preclude determination of the utilities improvements assessment provided relinquish…
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Bernstein v. Berrin, 516 So. 2d 1042 (Fla. 2d DCA 1987)…court held that after a notice of appeal from a final judgment a trial judge loses jurisdiction to award attorney’s fees pursuant to a reservation of jurisdiction in the final judgment. See, also, United Services Automobile Association v. Smolensky, 391 So. 2d 355 (Fla. 2d DCA 1980) and Judge v. Judge, 370 So. 2d 833 (Fla. 2d DCA 1979). We take this opportunity to recede from that aspect of Wilson, Smolensky, and Judge. Experience and cases subsequent to Wilson have now convinced us that the better conclusion…
Authorities Cited
- Wilson Realty, Inc. v. David, 369 So. 2d 75 (Fla. 2d DCA 1979)