General Acc. Ins. Co. v. Packal

• Decision Date: 16 September 1987
• Docket Number: No. 87-0051,87-0051
• Citation: 512 So.2d 344,12 Fla. L. Weekly 2264
• Parties: 12 Fla. L. Weekly 2264 GENERAL ACCIDENT INSURANCE COMPANY, Appellant, v. Joseph J. PACKAL d/b/a Welcome Video & Electronics, and Borg-Warner Acceptance Corporation, Appellees.
• Court: Florida District Court of Appeals

Page 344

512 So.2d 344

12 Fla. L. Weekly 2264

GENERAL ACCIDENT INSURANCE COMPANY, Appellant, v. Joseph J. PACKAL d/b/a Welcome Video & Electronics, and Borg-Warner Acceptance Corporation, Appellees.

No. 87-0051.

District Court of Appeal of Florida,

Fourth District.

Sept. 16, 1987.

W. Lane Neilson of Neilson and Associates, Tampa, for appellant.

David Jack Palgon of Engel & Palgon, P.A., Miami, for appellee-Packal.

DOWNEY, Judge.

During the course of discovery in a suit for breach of contract by an insured, Joseph J. Packal d/b/a Welcome Video & Electronics (Packal), and others against his insurer, General Accident Insurance Company (General Accident), Packal sought the production of General Accident's claims file. The trial court ordered the file produced for an "in camera" inspection, after which the judge inadvertently returned the file to plaintiff's counsel rather than counsel for General Accident. This precipitated a motion to recuse counsel for plaintiff, which the court denied.

General Accident sought certiorari review of the order denying recusal of counsel, which this court granted and ordered counsel for plaintiff to be recused from the case. See General Accident Insurance Company v. Borg-Warner Acceptance Corporation, 483 So.2d 505 (Fla. 4th DCA 1986). Packal filed a motion "for an award of attorney's fees for the defense of these common law certiorari proceedings said award to the [sic] added to any final judgment in favor of Joseph J. Packal and Welcome Video and Electronics." This court granted said motion and remanded the cause to the trial court for assessment. Upon remand, a hearing was held and the trial court awarded Packal an attorney's fee for the appellate proceedings. That order is now before this court for review because the trial court awarded the attorney's fee to Packal without any limitation thereon to abide the determination as to whether Packal is the ultimate prevailing party.

Initially we would point out that our order granted Packal's motion to award him an attorney's fee, which award should be added to any final judgment in his favor. Thus, the fee awarded was to be conditional upon Packal being the ultimate prevailing party--if not, the anticipated fee would never be included in the final judgment. Although we certainly could have made it more clear, this is consistent with the existing law on the subject. When a party is determined by the appellate court to be entitled to attorney's fees for interlocutory appellate proceedings in a case involving attorney's fees for the prevailing party, the award of entitlement to attorney's fees for the interlocutory appellate proceeding is conditional upon that party ultimately prevailing in the final judgment. This, of course, means that the ultimate prevailing party must be the winner in the interlocutory appellate proceeding and receive the appellate court's approval for the allowance of fees, but no fee will be payable until and unless that party "prevails" ¹ in the end. See Mainlands Construction Co. v. Wen-Dic Construction Co., 482 So.2d 1369 (Fla.1986); Publix Super Markets, Inc. v. Cheesbro Roofing, Inc., 502 So.2d 484 (Fla. 5th DCA 1987); Magee v. Bishop Signs, Inc., 458 So.2d 1174 (Fla. 4th DCA 1984); Steinhardt v. Eastern Shores White House Association, Inc., 413 So.2d 785 (Fla. 3d DCA 1982). Therefore, in the present case it would have been appropriate for the trial court to proceed as it did to a determination of an appropriate fee for Packal payable if, as, and when Packal prevails in the final analysis, or the trial court could await the final determination of the case and then, assuming Packal prevails, determine the entire amount of attorney's fees to which Packal was entitled as the prevailing party, including the fee awarded by the appellate court for the interlocutory appellate proceeding.

At this juncture of the case we are met with the unusual problem that this court is now convinced that no appellate attorney's fees should have been awarded to Packal for the certiorari proceeding because Packal was not a prevailing party in that proceeding. The appellate proceeding was precipitated by the trial court inadvertently sending...