Opinion
No. 74-1454.
March 14, 1975.
Appeal from the Circuit Court, Broward County, Stewart F. LaMotte, Jr., J.
John A. Gentry, III, of Moyle, Gentry, Jones Flanigan, West Palm Beach, for appellant.
Diane D. Hathaway of Druck, Grimmett, Norman Weaver, Fort Lauderdale, for appellee-Druck.
Upon consideration of the briefs and record we are of the opinion that the trial court's award of attorney's fees for services in the appellate court (including the Supreme Court) was contrary to Rule 3.16(e), F.A.R.; said rule sets forth the manner in which attorney's fees may be sought for service in the appellate court and particularly the requirement for the determination as to the allowance of such fee to be made by the appellate court. The record does not demonstrate that this procedure was followed.
In addition and perhaps of greater significance in the disposition of this appeal is the fact that under the recent decision of the Supreme Court in Ohio Rlty. Inv. Corp. v. Southern Bk of West Palm Beach, Fla. 1974, 300 So.2d 679, attorney's fees on appeal are not allowable unless there is express language to that effect in the contractual document executed by the parties. The instant case involves a promissory note which contained no provision for attorney's fees on appeal.
Accordingly, the final judgment is reversed and the cause remanded to the trial court with respectful directions to modify said judgment deleting the allowance of attorney's fees for services in the appellate courts in conformance herewith.
Reversed and remanded.
CROSS, MAGER, and DOWNEY, JJ., concur.