Summary
holding that section 768.79 fees apply at the appellate level
Summary of this case from Braxton v. GrabowskiOpinion
No. 94-01038.
September 28, 1994.
Appeal from the Circuit Court, Sarasota County, Durand J. Adams, J.
Eric P. Gibbs of Zimmerman, Shuffield, Kiser Sutcliffe, P.A., Orlando, for appellant.
Fred S. Pflaum, Sarasota, for appellee.
ORDER ON MOTION FOR ATTORNEY'S FEES FILED BY APPELLEE, JOSEPH A. MENDOLERA
In accordance with section 768.79, Florida Statutes (1993), Joseph Mendolera, the plaintiff in the lower court, served a pretrial demand for judgment in the amount of $100,000.00, which Westfield Insurance Company refused. The jury returned a verdict in favor of Mendolera, awarding total damages of $500,000.00 and the trial court entered judgment for this amount. The court also awarded Mendolera his attorney's fees and costs because the judgment was "at least 25 percent greater than the offer." § 768.79(1), Fla. Stat. (1993).
Westfield appealed the judgment, which we affirmed, per curiam, in Westfield Ins. Co. v. Mendolera, 647 So.2d 223 (Fla. 2d DCA 1994). We now align ourselves with the First, Fourth and Fifth District Courts of Appeal in granting Mendolera's motion for appellate attorney's fees and costs based on section 768.79. See Mark C. Arnold Const. Co. v. National Lumber Brokers, Inc., 642 So.2d 576 (Fla. 1st DCA 1994); Schmidt v. Forner, 629 So.2d 1036, 1043 n. 10 (Fla. 4th DCA 1993); Williams v. Brochu, 578 So.2d 491, 495 (Fla. 5th DCA 1991). We remand to the trial court to determine the appropriate amount of the award.
RYDER, A.C.J., SCHOONOVER and FULMER, JJ., concur.