Opinion
No. 4D98-170.
Opinion filed August 30, 2000.
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Jack H. Cook, Judge; L.T. No. CL 96-5537 AJ.
Philip M. Burlington of Caruso, Burlington, Bohn Compiani, P.A., West Palm Beach, and F. Kendall Slinkman of F. Kendall Slinkman, P.A., West Palm Beach, for appellant.
James M. McCann, Jr., Nancy A. Romfh, Alan M. Herman and Celeste B. Marcks of Akerman, Senterfitt Eidson, P.A., West Palm Beach, for appellee.
EN BANC
When we reversed the final judgment in this case, Aksomitas v. Majaraj, 25 Florida Law Weekly 1090 (Fla. 4th DCA May 3, 2000), we granted appellee Maharaj's motion for appellate attorney's fees conditioned on her ultimately prevailing in the litigation. Her motion for attorney's fees alleged that she was contractuallyentitled to them and had been awarded fees by the trial court.
Appellant Aksomitas, who prevailed on this appeal, has moved for rehearing of the order awarding attorney's fees, citing General Accident Insurance Co. v. Packal, 512 So.2d 344 (Fla. 4th DCA 1987). In that case we held that in order to be awarded prevailing party attorney's fees for services rendered on appeal, a party had to win the appeal in addition to ultimately prevailing in the litigation. Under Packal, a party who ultimately prevails in the litigation, but loses an appeal during the litigation, cannot be reimbursed for fees incurred for that appeal. We followed Packal in Cline v. Gouge, 537 So.2d 625 (Fla. 4th DCA 1988).
In Packal we did not give any reasons why we were establishing the rule, but we may have been influenced because of the manner in which appellate costs are assessed. Florida Rule of Appellate Procedure 9.400(a) provides that "costs shall be taxed in favor of the prevailing party unless the court orders otherwise." This rule has consistently been interpreted as requiring the imposition of appellate costs in favor of the party prevailing on that particular appeal, regardless of who ultimately prevails in the litigation. Stringer v. Katzell, 695 So.2d 369 (Fla. 4th DCA 1997) and cases cited. No rule, however, requires that same result with attorney's fees.
We cited four cases in Packal to support our conclusion:Mainlands Constr. Co. v. Wen-Dic Constr. Co., 482 So.2d 1369 (Fla. 1986); Publix Super Markets, Inc. v. Cheesbro Roofing, Inc., 502 So.2d 484 (Fla. 5th DCA 1987); Magee v. Bishop Signs, Inc., 458 So.2d 1174 (Fla. 4th DCA 1984); Steinhardt v. Eastern Shores White House Ass'n, 413 So.2d 785 (Fla. 3d DCA 1982). Those cases did not involve the same issue as Packal.
When prevailing party attorney's fees are assessed at the conclusion of litigation, the trialcourt determines "which party has in fact prevailed on the significant issues tried before the court." Moritz v. Hoyt Enter., Inc., 604 So.2d 807, 810 (Fla. 1992). Trial courts, however, have no authority to award prevailing party attorney's fees for an appeal unless specifically authorized to do so by the appellate court. Foley v. Fleet, 652 So.2d 962 (Fla. 4th DCA 1995); Travelers Indem. Co. of Am. v. Morris, 390 So.2d 464 (Fla. 3d DCA 1980). Appellate courts are thus required to rule on motions for prevailing party attorney's fees without knowing who will ultimately prevail. This court grants those motions contingent on that party prevailing, leaving the determination of the amount to the trial court, as is authorized by rule 9.400(b).
We now recognize that the inflexible rule of Packal is contrary to the public policy behind statutes which provide for prevailing party attorney's fees. For example, section 627.428, Florida Statutes, provides that an insured who prevails in litigation against an insurer is entitled to recover attorney's fees from the insurer. The purpose of the statute is to make the insured whole, i.e., in the same position the insured would had been if the insurer had paid the claim without litigation. Clay v. Prudential Ins. Co. of Am., 617 So.2d 433 (Fla. 4th DCA 1993), citingInsurance Co. of N. Am. v. Lexow, 602 So.2d 528 (Fla. 1992) (purpose of section 627.428 is to "reimburse successful insureds for their attorney's fees."). Under Packal, however, if the insured loses an appeal during the litigation, but ultimately recovers under the policy, the insured cannot recover fees for services rendered on the appeal. The policy behind the statute, which is to make the insured whole, is thus frustrated. Packal is also inconsistent with the intent of the parties in the present case, who agreed that the prevailing party in litigation should be reimbursed for fees.
Packal, which singles out appeals, is also arguably inconsistent with Moritz, which holds that prevailing party attorney's fees should be awarded to the party prevailing on the "significant issues." Id. at 810. Moritz does not authorize the denial of prevailing party attorney's fees for an appeal which the ultimate prevailing party lost somewhere along the line. We don't denyprevailing party attorney's fees to a litigant for services rendered in a trial, where the litigant loses that trial, but ultimately prevails, and there is no logical reason to have a different rule applicable to appeals.
We therefore recede from Packal and Cline to the extent that they hold that a party who ultimately prevails in the litigation cannot be awarded attorney's fees for services rendered on an appeal unless that party also prevailed on the appeal. When we are ruling on motions for prevailing party attorney's fees, we will normally grant the motion contingent on the party ultimately prevailing. At the conclusion of the litigation, the trial court can then, under Moritz, award attorney's fees to the party prevailing on the significant issues. We used the word "normally" above because we may deny fees where the work performed on an appeal is unnecessary. That would include fees sought by an appellant for an appeal which should never have been taken and fees sought by an appellee who should have confessed error. See, e.g., Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145, 1150 (Fla. 1985) (prevailing party attorney's fees can be reduced for work which is "unnecessary").
The second district cited Cline with approval in Sabina v. Dahlia Corp., 678 So.2d 822 (Fla. 2d DCA 1996); however, the reference was dicta. In Sabina, the second district concluded that it had erroneously awarded prevailing party attorney's fees on a non-final appeal, and it should have done so conditionally rather than unconditionally, because the winner of the appeal did not ultimately prevail.
The motion for rehearing is denied.
WARNER, C.J., DELL, GUNTHER, STONE, POLEN, FARMER, STEVENSON, SHAHOOD, GROSS, TAYLOR, and HAZOURI, JJ., concur.
ON MOTION FOR REHEARING OF ORDER GRANTING ATTORNEY'S FEES