Opinion
No. 87-789.
November 2, 1989.
Appeal from the Circuit Court, Orange County, Cecil H. Brown, J.
Philip M. Burlington, of Edna L. Caruso, P.A., West Palm Beach, for appellant Association Financial Services, Inc.
No appearance for appellants Allied Gasoline Retailers Ass'n and Kenneth Dufault.
No appearance, for appellees.
Following the decision of this court reported as Association Financial Services, Inc. v. Lewis, 519 So.2d 26 (Fla. 5th DCA 1987), rev. denied, 529 So.2d 693, 694 (1988), the trial court entered an order in favor of the three plaintiffs, Lewis, Jacobson and Hewitt, awarding a single sum for costs (§ 57.041, Fla. Stat.), and a single sum for attorney's fees. The defendant, AFS, appeals.
The appealed award of attorney's fees was based solely on section 812.035(7), Florida Statutes, a part of the civil theft statute. However, our prior decision in this case reversed the judgment based on the civil theft cause of action because the evidence was insufficient to support it. That was the very reason given in the last paragraph of our opinion for denying attorney's fees on appeal. The award of attorney's fees was therefore error and is reversed.
Likewise our prior opinion in this case, as amended on motion for rehearing, reversed a judgment in favor of Lewis and Jacobson; therefore, they were not the prevailing parties and were not entitled to an award of costs under section 57.041, Florida Statutes.
The order for attorney's fees and costs is reversed and the cause is remanded for entry of a judgment in favor of Hewitt for his costs only.
REVERSED and REMANDED.
DANIEL, C.J., and COBB and COWART, JJ., concur.