Opinion
No. 79-1600.
June 10, 1980.
Appeal from the Circuit Court for Dade County, George Orr, J.
Wicker, Smith, Blomqvist, Davant, Tutan, O'Hara McCoy and Richard A. Sherman, Miami, for appellant.
John H. Duhig, Miami, for appellee.
Before BARKDULL, HUBBART and SCHWARTZ, JJ.
The final order under review, which awards attorneys fees for the plaintiff subcontractor [Electric Power Service, Inc.] in its suit against the contractor [Scope Construction Company] and its surety insurer [Insurance Company of North America] under the subject contractor's performance bond, is reversed upon a holding that no final judgment on the merits was rendered by the trial court in the plaintiff's favor, [the lawsuit was, in fact, settled between the parties] and, under the applicable law, the absence of such a final judgment precludes the award of attorneys fees herein under Sections 627.756, 627.428(1), Florida Statutes (1979). American Home Assurance Co. v. Keller Industries, 347 So.2d 767 (Fla.3d DCA 1977). Upon this reversal, the cause is remanded to the trial court with directions to vacate the order under review and deny the application for attorneys fees.
Reversed and remanded.
I agree that reversal is required by our decision in American Home Assurance Co. v. Keller Industries, Inc., 347 So.2d 767 (Fla.3d DCA 1977), cert. denied, dismissed, 360 So.2d 1249 (Fla. 1978), 367 So.2d 1124 (Fla. 1979). Were the issue an original one in this district, however, I would follow the contrary views well-expressed in the dissenting opinion of Judge Hendry in Keller and in the conflicting cases of Gibson v. Walker, 380 So.2d 531 (Fla.5th DCA 1980) and Cincinnati Ins. Co. v. Palmer, 297 So.2d 96 (Fla.4th DCA 1974).