Summary
stating that attorney's fees may be granted under Fla. Stat. § 627.428 "should the appellant ultimately prevail," and stating that "prevail[ing] in the statutory sense" includes a "final judgment entered for appellant"
Summary of this case from Dadeland Depot v. St. PaulOpinion
No. 71-2223.
February 20, 1972.
Marvin H. Gillman, Miami, Fla., for plaintiff-appellant.
William M. Hoeveler, Miami, Fla., for garnishee-appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before BELL, AINSWORTH and GODBOLD, Circuit Judges.
By our decision in Duke v. Hoch, et al., 468 F.2d 973 (5th Cir., 1972) we reversed a judgment entered for the insurer-garnishee and remanded for further proceedings. Counsel for the appellant has filed a motion for allowance of attorney fees for his services on appeal, pursuant to Florida Statute 627.428, F.S.A. The motion is denied without prejudice to application in the trial court for fees allowable under § 627.428, for services on appeal, should the appellant ultimately "prevail." "While he has won a round in this bout, the cause is not yet concluded in his favor, and we think that he has not yet `prevailed' in the statutory sense." Segelstrom v. Blue Shield of Florida, Inc., 233 So.2d 645, 646 (Fla.App. 1970). As in Segelstrom, "should final judgment be entered for [appellant] the trial judge may then evaluate the briefs filed in aid of this appeal and determine appropriate compensation." Id. at 646.
Formerly § 627.0127.