Schwartz v. Sherman, Fla. App. 1968, 210 So.2d 469 (opinion filed April 30, 1968). See also Kittel v. Kittel, Fla. 1968, 210 So.2d 1 (opinion filed May 8, 1968). The corporation's contention that the attorney's fee was allowable under § 84.311, Fla. Stat., F.S.A., is untenable because no lien was established or enforced.

When the 1968 petitions were filed by the appellants, the law of the case before the county judge was that the bequests to the appellants under the will of Nellie E. Rasey were invalid under F.S. 1951, Section 731.19, F.S.A. This point of law became established as the law of the case when the earlier order of the county judge was affirmed by the circuit court in its appellate capacity and left undisturbed by the District Court of Appeal for the Second District. Once the law of the case was thus established, the trial judge was bound by it throughout the remainder of the cause. Kittel v. Kittel, Fla. 1967, 210 So.2d 1; Walker v. Atlantic Coastline Railroad Company, Fla.App. 1960, 121 So.2d 713, 715. As we understand the appellants' petitions, any relief that could have been granted thereunder would of necessity have been inconsistent with the prior order of the county judge holding the bequests to appellants invalid; therefore, the county judge in our opinion had no alternative except to strike or otherwise dismiss the petitions. Affirmed.

However, Lee and Chemair Corporation of America had not so bound themselves. Attorney's fees are recoverable when authorized by contract or statute or where an attorney creates or brings a fund into court. Kittel v. Kittel, Fla. 1968, 210 So.2d 1, 3. None of these three conditions were met as to Lee and Chemair. Therefore, for the reasons stated and based upon the authorities cited, the amended final judgment which is the subject of the instant appeal and cross-appeal is affirmed in all respects.

They are allowed to the prevailing party in certain instances which need not be discussed here. See Kittel v. Kittel, Fla. 1967, 210 So.2d 1. Inasmuch as this cause is an automobile negligence action, there is no authority for the assessment of an attorney's fee. Rule 1.420(d), RCP, 30 F.S.A., does not provide such authority. The second challenged portion of the cost judgment allows as an element of costs the estimated price of the reporter's transcription of the record of the incomplete trial.

Under the facts shown by this record there is no specific statute, agreement between the parties, or special equitable circumstances which may lawfully form a basis for awarding attorney's fees as part of the court costs in this case. Granoff v. Cherin (Fla.App. 1972) 270 So.2d 430; Kittel v. Kittel (Fla. 1967) 210 So.2d 1; Thibert v. Thibert (Fla. App. 1958) 106 So.2d 918. The majority opinion recites as authority for its position the cases of Troutman Enterprises, Inc. v. Robertson and Goldstein v. Great Atlantic Pacific Tea Company.

PER CURIAM. Affirmed upon authority of Kittel v. Kittel, Fla. 1968, 210 So.2d 1.

Statutes authorizing the award of attorneys' fees are considered in derogation of common law so as to require strict construction. Kittel v. Kittel, Fla. 1967, 210 So.2d 1. The Legislature has seen fit for the prevailing party in a mechanic's lien foreclosure action to be awarded his attorney's fees. It would constitute an undue extension of legislative intent to hold that simply because one portion of a lawsuit involved the foreclosure of a mechanic's lien, the prevailing party should be entitled to collect his attorney's fees for all aspects of the case. See Houdaille-Duval-Wright Co. v. Charldon Construction Co., Fla.App.3rd, 1972, 266 So.2d 106.

The second point raised likewise requires reversal. The applicable law was set forth in Kittel v. Kittel, Fla. 1967, 210 So.2d 1, 3: It is an elemental principle of law in the State that attorney's fees may be awarded a prevailing party only under three circumstances, viz: (1) where authorized by contract; (2) where authorized by constitutional legislative enactment; and (3) where awarded for services performed by an attorney in creating or bringing into the court a fund or other property.

Therefore, it is the appellant's contention now that an award of attorney's fees to the appellee's attorney was not "any proceeding under this chapter" as the language appears in Fla. Stat. § 61.16, F.S.A., authorizing attorney's fees in enforcement and modification proceedings. Appellant relies principally on the holding in Howell v. Howell, Fla.App. 1968, 207 So.2d 507, decided under the now repealed statute governing attorney's fees, Fla. Stat. § 61.15, F.S.A. 1969, and upon the authority of Kittel v. Kittel, Fla. 1968, 210 So.2d 1, holding that Section 61.15 (now 61.16) should be strictly construed. We note, however, that the new statute, Section 61.16, added for the first time the provision which authorizes a reasonable attorney's fee for initiating or defending a modification proceeding.

Attorneys fees are not an allowable item of taxable costs in a common law suit in this State except in certain instances which need not be repeated here. On the authority of Kittel v. Kittel, Fla. 1967, 210 So.2d 1, the Petition for Writ of Certiorari is accordingly hereby granted and the Order of the trial court awarding attorneys fees as taxable costs is quashed. This cause is remanded to the Circuit Court for further proceedings consistent herewith.