ROBLES v. UNITED AUTOMOBILE INSURANCE COMPANY (2022)

On Appellant's Motion for Appellate Attorney's Fees

Thomas Robles is the insured of United Automobile Insurance Company (“UAIC”) and has sued regarding the insurance contract ostensibly existing between the two of them. He appealed a non-final order transferring venue, and he has prevailed. He also sought an award by this court of his attorney's fees for pursuing that appeal, pursuant to section 627.428, Florida Statutes. However, a close reading of that statute reveals that it does not authorize an appellate court to make such an award at the conclusion of an interlocutory appeal. This statute requiring the award of fees (by both the trial and appellate courts) kicks in only “[u]pon the rendition of a judgment or decree.” § 627.428(1), Fla. Stat.; cf. id. (3) (requiring that when fees are awarded, they “be included in the judgment or decree rendered in the case”). Because there is neither a judgment nor a decree in favor of Robles as the insured—at least not yet—we have no authority to grant his request for appellate attorney's fees that he incurred in this case.

This is not to say, though, that if there ultimately were a recovery against UAIC in the underlying suit, the trial court could not consider the time spent by Robles's attorney in pursuit of this appeal as part of its determination of “a reasonable sum as fees or compensation” to be paid by UAIC for the prosecution of the suit by Robles's attorney. Id. (1). The pursuit or defense of a non-final-order appeal by an insured's attorney is part of his effort in moving the lawsuit against the insurer toward conclusion, so any award by the trial court pursuant to section 627.428(1) would have to include payment for that interstitial effort.

Robles's motion for fees—in this court, at this time—is DENIED.

Tanenbaum, J.

B.L. Thomas and Long, JJ., concur.