Luciano v. City of Naples

Full title: GENE LUCIANO, APPELLANT, v. THE CITY OF NAPLES AND NICHOLAS E. LONG…

Court: District Court of Appeal of Florida, Second District

Date published: Mar 15, 1996

670 So. 2d 1065 (Fla. Dist. Ct. App. 1996)

Opinion

No. 95-03191.

March 15, 1996.

Appeal from the Circuit Court for Collier County; Jay B. Rosman, Judge.

Thomas W. Franchino of Franchino Rawson, P.A., Naples, for Appellant.

Louis D. D'Agostino of Quarles Brady, Naples, for Appellee, the City of Naples; Louis X. Amato of Amato, Anderson, Nickel Weber, Naples, for Appellee, Nicholas E. Long.

SCHOONOVER, Judge.

The appellant, Gene Luciano, challenges the award of attorney's fees and costs to the appellees, the City of Naples and Nicholas E. Long. We affirm in part and reverse in part.

The appellees, prevailing parties in an action originally instituted by the appellant, were awarded their attorney's fees and costs pursuant to section 768.79, Florida Statutes (1993), and pursuant to the terms of a lease entered into between the City of Naples and the appellant.

We find no error either in the trial court's determination that the city was entitled to its fees and costs pursuant to section 768.79 and pursuant to the lease, or in its determination of the amount of the award. We, accordingly, affirm the award to the City of Naples without further discussion.

We find, however, that the trial court erred by granting the appellee, Nicholas E. Long, the city's dockmaster, his attorney's fees and costs pursuant to the terms of the lease entered into between the City of Naples and the appellant. Mr. Long did not properly seek an award pursuant to the terms of the lease and was not a party to the lease.

Although Mr. Long was not entitled to attorney's fees and costs pursuant to the lease, the trial court properly held that he was entitled to them pursuant to section 768.79. We must, however, remand for a determination of the proper amount. Section 768.79 provides for the award of fees and costs incurred subsequent to the date of the filing of an offer of judgment. The statute does not provide for the recovery of fees and costs incurred prior to the date of the filing of an offer of judgment. Although we find no error in the court's determination of the total amount of fees and costs incurred by Mr. Long in connection with this matter, the court failed to deduct those amounts incurred prior to the date Mr. Long filed his offer of judgment. Upon remand the court should do so.

Affirmed in part, reversed in part, and remanded.

DANAHY, A.C.J., and CAMPBELL, J., concur.