Summary
In Denmark this Court construed section 73.131(2) to require the payment of appellate attorney's fees even in cases where the property owner loses the appeal, provided the appeal was taken by the condemning authority.
Summary of this case from Salley v. City of St. PetersburgOpinion
No. 56373.
July 10, 1980. Rehearing Denied September 17, 1980.
Kelly, Black, Black, Wright Earle, P.A., Miami, Brown, Paxton Williams, Fort Pierce, and Sam Daniels of Daniels Hicks, Miami, for petitioners.
Alan E. DeSerio, Oval B. Boone and H. Reynolds Sampson, Tallahassee, for respondent.
We granted certiorari in this cause to review the January 13, 1979 order of the District Court of Appeal, Fourth District, denying appellate attorneys' fees to petitioners/condemnees. We now disapprove the above order.
Art. V, § 3(b)(3), Fla. Const. (1972).
After a jury verdict of $48,000 in this eminent domain proceeding, the trial judge entered a judgment notwithstanding the verdict of $229,850 in severance damages to petitioners. Respondent/condemnor appealed the award to the District Court of Appeal, Fourth District, which reversed. State Dept. of Transportation v. Denmark, 366 So.2d 476 (Fla. 4th D.C.A. 1979). In a separate order, the district court denied petitioners' motion for appellate attorneys' fees.
Section 73.131(2), Florida Statutes (1979), provides:
The petitioner shall pay all reasonable costs of the proceedings in the appellate court, including a reasonable attorney's fee to be assessed by that court, except upon an appeal taken by a defendant in which the judgment of the trial court shall be affirmed.
Faced with the identical statutory provision and similar factual circumstances, we held in State Road Dept. v. Levato, 199 So.2d 714 (Fla. 1967), that the condemnee was entitled to attorneys' fees even though the condemnor prevailed on appeal. Accord, State Road Dept. of Florida v. Hancock, 250 So.2d 307 (Fla. 2d D.C.A. 1971). Petitioners are thus entitled to an attorneys' fee for appellate services in this case.
Accordingly, the order of the District Court of Appeal, Fourth District, denying attorneys' fees is quashed. The cause is remanded to that court for proceedings not inconsistent with this opinion.
It is so ordered.
ADKINS, BOYD, OVERTON, ENGLAND, ALDERMAN and McDONALD, JJ., concur.