Opinion
Nos. 78-775, 78-1047.
February 27, 1980. On Rehearing April 16, 1980.
Appeal from the Circuit Court for Broward County, Thomas J. Reddick, Jr., J.
Robert S. Miller of Grand, Krupnick Miller, Hallandale, for appellants.
Frank E. Maloney, Jr. and Foy B. Fleming of Fleming, O'Bryan Fleming, Fort Lauderdale, for appellees.
This cause is affirmed with the exception that we cannot approve the award of attorneys fees in this mortgage foreclosure case.
The award here was predicated solely upon the individual testimony of the mortgagee's attorney over the objections of the mortgagor's counsel. This was improper. See Geraci v. Kozloski, 377 So.2d 811 (Fla. 4th DCA 1979) and Mullane v. Lorenz, 372 So.2d 168 (Fla. 4th DCA 1979).
Accordingly, this cause is reversed as to the award of attorneys fees and remanded to the trial court for reconsideration consistent with the above cited cases.
AFFIRMED IN PART, REVERSED AND REMANDED IN PART.
ANSTEAD and HURLEY, JJ., concur.
ON PETITION FOR REHEARING
Appellants have filed a motion for rehearing pursuant to Rule 9.330(a), Fla.R. App.P. We grant in part.
At oral argument counsel for appellees indicated that in the event this court concluded that the trial court's award of attorneys fees should be reversed, appellees would waive any claim to such fees. This court did so conclude, but because of some uncertainty as to the waiver we remanded the issue for reconsideration by the trial court. However, after oral arguments appellees filed a written waiver as to the attorneys fees issue which first came to the court's attention when appellants moved for rehearing. In accordance with the waiver there is no necessity that this issue be remanded for reconsideration by the trial court and consequently we recede from that portion of our initial opinion which reversed the trial court on the issue of attorneys fees and remanded for further consideration. The issue of attorneys fees being waived, this cause is hereby remanded to the trial court with directions that the provision for attorneys fees be stricken and the judgment as amended is affirmed.
ANSTEAD and HURLEY, JJ., concur.
LETTS, J., concurs specially with opinion.
I reluctantly concur. There can be no doubt that appellees' counsel is entitled to attorneys fees and that he waived them solely to insure the affirmance of his clients' cause. This being so, it is unfortunate that such magnanimity would result in his undoing, since we were for affirmance in any event. However, the written waiver after oral argument would appear to preclude any further action on this matter.