RICHARD D. COHEN
v.
WORLD OMNI FINANCIAL CORP
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Cohen voluntarily dismissed his appeal of an order denying relief from judgment. World Omni, the prevailing party, sought appellate attorneys' fees and costs, which the court partially denied, remanding the attorneys' fees issue to the trial court for determination of entitlement at the trial level.
World Omni is the prevailing party due to Cohen's voluntary dismissal but is not automatically entitled to appellate attorneys' fees under section 768.79 without a record on appeal. The issue of entitlement to trial-level attorneys' fees under section 768.79 is remanded to the trial court. World Omni is not entitled to fees under section 57.105 because Cohen's appeal was supported by then-existing law. World Omni's motion for appellate costs is denied as the trial court is the proper forum.
[1] A voluntary dismissal of an appeal does not preclude a determination of entitlement to appellate attorney's fees and costs.
[2] Entitlement to appellate attorney's fees under a statute may be conditioned upon entitlement to trial-level attorney's fees under the same statute.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The Court determines that World Omni is the prevailing party in this appeal as a result of Cohen's voluntary dismissal; however, due to the voluntary dismissal, there is no record on appeal available for the Court to review in order for it to determine whether World Omni is entitled to appellate attorneys' fees pursuant to section 768.79.”
Establishes that while World Omni prevailed, the lack of a record on appeal prevents the appellate court from determining entitlement to fees.
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Join FLexlaw to unlock all legal intelligenceRichard D. Cohen filed a Notice of Voluntary Dismissal of his appeal on June 30, 2008. The appeal concerned an Amended Order on Defendant's (Fourth) V…
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On June 30, 2008, Richard D. Cohen filed a Notice of Voluntary Dismissal of his appeal of the Amended Order on Defendant's (Fourth) Verified Motion for Relief from Judgment. Prior to the voluntary dismissal, World Omni Financial Corp. ("World Omni") filed a Motion for Appellate Attorneys' Fees and Costs, which is the only matter pending before the Court. World Omni seeks appellate attorneys' fees pursuant to Florida Statutes sections 768.79 and 57.105, and appellate costs pursuant to section 57.041.
The Court determines that World Omni is the prevailing party in this appeal as a result of Cohen's voluntary dismissal; however, due to the voluntary dismissal, there is no record on appeal available for the Court to review in order for it to determine whether World Omni is entitled to appellate attorneys' fees pursuant to section 768.79. Accordingly, the issue of World Omni's entitlement to appellate attorneys' fees under section 768.79 is remanded to the trial court for determination of whether World Omni was entitled to trial level attorneys' fees pursuant to section 768.79. If World Omni was entitled to trial level attorneys' fees pursuant to section 768.79, then World Omni likewise is entitled to appellate attorneys' fees, and the trial court shall determine the amount thereof. See Frosti v. Creel, 979 So. 2d 912 (Fla. 2008); Schmidt v. Forner, 629 So. 2d 1036 (Fla. 4th DCA 1993). If World Omni was not entitled to trial level attorney fees pursuant to 768.79, then World Omni not entitled to appellate attorneys' fees.
The Court finds that Cohen's appeal was supported by the then-existing law at the time it initially was presented to the Court. Accordingly, World Omni is not entitled to appellate attorneys' fees pursuant to Florida Statute section 57.105. Furthermore, World Omni's motion is denied insofar as it seeks appellate costs. This Court is not the proper forum to request an award of appellate costs. Appellate costs are taxed by the lower tribunal on motion served within 30 days after issuance of the mandate. See Fla. R. App. P. 9.400(a).
HOY, COX, and ROSENBERG, JJ., concur.
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Citator
Authorities Cited
- Susanne Rae Schmidt v. Fortner, 629 So. 2d 1036 (Fla. 4th DCA 1993)
- Frosti v. Creel, 979 So. 2d 912 (Fla. 2008)