Pellar v. Granger Asphalt Paving, Inc., 96-1665

Decision Date16 January 1997
Docket NumberNo. 96-1665,96-1665
Citation687 So.2d 282
Parties22 Fla. L. Weekly D216 Joseph R. PELLAR and Sweetwater Village Development, Inc., Appellants, v. GRANGER ASPHALT PAVING, INC., Appellee.
CourtFlorida District Court of Appeals

Steve Lewis and John W. Forehand of Lewis, Longman and Walker, Tallahassee, for Appellants.

Larry A. Bodiford of Hutto and Bodiford, Panama City, for Appellee.

PADOVANO, Judge.

Joseph R. Pellar and Sweetwater Development, Inc., appeal a final order of the trial court determining the amount of appellate attorney's fees for their successful defense of a prior appeal. The sole argument for reversal is that the amount of the attorney's fee award is inadequate. We treat the present appeal as a motion for review under Rule 9.400(c), Florida Rules of Appellate Procedure, and, finding no abuse of discretion, we affirm.

The original controversy arose from a dispute concerning the performance of a road paving contract. Granger Asphalt Paving, Inc., sued Pellar for breach of contract and unjust enrichment and to foreclose a mechanic's lien. In a separate lawsuit, Sweetwater and Pellar asserted a claim against Granger for breach of the same contract. By stipulation, the two cases were consolidated and presented in a single nonjury trial. The trial court found that Granger had breached its contract with Sweetwater and awarded Sweetwater damages of $53,581 against Granger. The court also found that Sweetwater had been unjustly enriched by the labor, services, and materials provided by Granger, and awarded Granger damages of $44,312.80 against Sweetwater. As a result of these findings, the court rendered judgment for Sweetwater for $9,268.20, the difference between the two awards. The court then ruled that Granger had not prevailed against Pellar on the mechanic's lien claim and was therefore not entitled to any relief against Pellar.

Granger appealed to this Court contending that the trial court erred in consolidating the two cases and adopting a "net winner" approach to the damages awards. Sweetwater filed a cross appeal asserting as error the trial court's failure to include prejudgment interest in the amount due from Granger. We affirmed the appeal without discussion, but reversed on the cross appeal and remanded with directions to include prejudgment interest. Granger Asphalt Paving, Inc. v. Pellar, 668 So.2d 345 (Fla. 1st DCA 1996). We also granted the motion by Pellar and Sweetwater for appellate attorney's fees and remanded the case to the trial court for determination of the amount.

Following the appeal, Pellar and Sweetwater presented their claim in the trial court for attorney's fees and costs totaling $10,351.51. This figure includes $631 for reproducing the trial transcript, an expense caused by the trial lawyer's alleged refusal to cooperate with appellate counsel. Pellar and Sweetwater called their appellate counsel as a witness to verify the time records and they presented the expert testimony of another lawyer who rendered an opinion that the fees were reasonable. Granger presented no testimony on the issue of the reasonableness of the amount.

The trial court ruled that Granger should not be required "to repay Pellar for the problems with his attorney" and therefore did not include the cost of the transcript or eight hours of paralegal time attributed to preparation of the transcript. As for the value of the legal services, the trial court concluded that the appeal involved only a minor issue. Consequently, the court reduced the amount requested and ordered Granger to pay Pellar and Sweetwater $2,500 in fees with $344.61 in costs for a total of $2,844.61, with interest.

Rule 9.400(c) of the Florida Rules of Appellate Procedure provides that review of an order determining appellate costs or fees "shall be by motion filed in the court within 30 days of rendition." The term "court" is used throughout the appellate rules to mean the appellate court. Fla.R.App.P. 9.020(c). Thus, the correct method of seeking review of an order on appellate costs or attorney's fees is to file a motion for review in the appellate court in the proceeding that was the subject of the award, within 30 days of rendition of the order in the lower tribunal. See Cline v. Gouge, 537 So.2d 625 (Fla. 4th DCA 1988); Altamonte Hitch and Trailer Service, Inc. v. U-Haul Company of Eastern Florida, 483 So.2d 852 (Fla. 5th DCA 1986); Starcher v. Starcher, 430 So.2d 991 (Fla. 4th DCA 1983). Failure to file a motion for review in the appellate court as required by rule 9.400(c) may even result in a denial of the right of review. See, e.g., Magner v. Merrill Lynch Realty/MCK, Inc., 585 So.2d 1040 (Fla. 4th DCA 1991).

An order determining the amount of appellate attorney's fees on remand from an appellate court has the characteristics of a final order but review of such an order by a plenary appeal is not necessary or even proper. Rule 9.400(c) enables the parties to pursue a one-step method of review that is more practical than an appeal and much less expensive. The procedure does not require the payment of a filing fee or the preparation of a formal record. Testimony and other evidence before the trial court can be presented in an appendix to the...

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13 cases
  • D'alusio v. Gould & Lamb LLC
    • United States
    • Florida District Court of Appeals
    • June 2, 2010
    ...appellate fees by motion in this case number rather than through a separate, unrelated appeal. See Pellar v. Granger Asphalt Paving, Inc., 687 So.2d 282, 284 (Fla. 1st DCA 1997) (observing that “the correct method of seeking review of an order on appellate costs or attorney's fees is to fil......
  • ROYAL BELGE v. NEW MIAMI WHOLESALE, INC.
    • United States
    • Florida District Court of Appeals
    • September 10, 2003
    ...standard applies to this Court's review of a judgment or order setting appellate attorney's fees. See Pellar v. Granger Asphalt Paving, Inc., 687 So.2d 282 (Fla. 1st DCA 1997). "As with other discretionary decisions, we must affirm the order of the trial court if reasonable people could dif......
  • STATE DOT v. SKINNERS WHOLESALE NURSERY
    • United States
    • Florida District Court of Appeals
    • November 20, 1998
    ...the DOT filed in this court a motion for review of the award of appellate attorney's fees. See Pellar v. Granger Asphalt Paving, Inc., 687 So.2d 282, 284-85 (Fla. 1st DCA 1997). In its motion, the DOT makes clear that it has no dispute with the reasonableness of the number of hours or hourl......
  • Avemco Ins. Co. v. Tobin, 4D03-4024.
    • United States
    • Florida District Court of Appeals
    • November 10, 2004
    ...order entered within thirty days of its rendition, it prejudiced no one to review it in that appeal. Pellar v. Granger Asphalt Paving, Inc., 687 So.2d 282 (Fla. 1st DCA 1997). ...
  • Request a trial to view additional results
3 books & journal articles
  • Attorneys' fees on appeal: basic rules and new requirements.
    • United States
    • Florida Bar Journal Vol. 76 No. 4, April 2002
    • April 1, 2002
    ...by the parties necessitated by a remand"). (34) See Florida Rule of Appellate Procedure 9.400(c); Pellar v. Granger Asphalt Paving, Inc., 687 So. 2d 282, 284 (Fla. 1st D.C.A. 1997); Sabina v. Dahlia Corp., 678 So. 2d 822 (Fla. 2d D.C.A. 1996); Dalia v. Alvarez, 605 So. 2d 1282 (Fla. 3d D.C.......
  • Chapter 17-3 Procedures to Recover Attorney's Fees
    • United States
    • Full Court Press Florida Foreclosure Law 2022 Chapter 17 Attorney's Fees in Foreclosure Actions
    • Invalid date
    ...Abraham v. S.N.W. Corp., 549 So. 2d 776 (Fla. 4th DCA 1989).[94] Fla. R. App. P. 9.400(c).[95] Pellar v. Granger Asphalt Paving, Inc., 687 So. 2d 282, 285 (Fla. 1st DCA...
  • Chapter 16-3 Procedures to Recover Attorney's Fees
    • United States
    • Full Court Press Florida Foreclosure Law 2020 Title Chapter 16 Attorney's Fees in Foreclosure Actions
    • Invalid date
    ...Abraham v. S.N.W. Corp., 549 So. 2d 776 (Fla. 4th DCA 1989).[95] Fla. R. App. P. 9.400(c).[96] Pellar v. Granger Asphalt Paving, Inc., 687 So. 2d 282, 285 (Fla. 1st DCA...

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