25 Fla. L. Weekly D380b
Insurance — Homeowners — Liability — Appeals — Duty to defend is to be determined solely by allegations of complaint — Summary judgment in favor of insurer error where complaint creates factual issue — Issue of denial of insured’s motion for summary judgment not addressed by appellate court where issue was not appealed — Request for attorney’s fees denied where fees were not requested by filing of separate motion
FRAN McCREARY and CAIN McCREARY, Appellants, v. FLORIDA RESIDENTIAL PROPERTY AND CASUALTY JOINT UNDERWRITING ASSOCIATION, Appellee. 4th District. Case No. 4D98-3516. Opinion filed February 9, 2000. Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Leonard L. Stafford, Judge; L.T. Case No. 98-1133 02. Counsel: Gregg R. Schwartz of Law Offices of Gregg R. Schwartz, P.A., Miami, for appellants. Rebecca L. Jenkins and Jennifer A. Kerr of Powers, McNalis, Moody & Groelle, Lake Worth, for appellee.ON MOTIONS FOR CLARIFICATION AND REHEARING[Original Opinion at 24Fla. L. Weekly D2257c]
(BLANC, PETER D., Associate Judge.)MOTIONS FOR CLARIFICATION
Both parties made motions for clarification and seek to determine whether this court’s opinion reversing the entry of summary judgment for appellee established that appellee had a duty to defend appellants based upon the allegations of the pleading or whether the existence of such a duty must be made by the trier of fact in the lower court. The duty to defend must be determined solely by the allegations of the complaint. See Marr Invs., Inc. v. Greco, 621 So. 2d 447, 449 (Fla. 4th DCA 1993). In that regard, this court found that plaintiff’s complaint, when fairly read, creates a factual issue as to the loss of use of property of appellants, and therefore, determined that summary judgment in favor of the appellee, insurer, was error. See Fun Spree Vacations, Inc. v. Orion Ins. Co., 659 So. 2d 419, 421 (Fla. 3d DCA 1995). However, the trial court’s order denying appellants’ motion for summary judgment on the same issue of duty to defend was not appealed and was not before this court. Therefore, it would not be proper for this court to opine on matters not properly before it by, in effect, reviewing appellant’s motion for summary judgment. This court limited its opinion to the record before it and properly offered no opinion on the order which was not appealed. We are confident that we can rely on the learned trial judge to follow the law and the limited directives of our original opinion.MOTION FOR REHEARING
Appellee’s motion for rehearing simply re-argues the position asserted in its brief. Therefore, the motion for rehearing is denied.ATTORNEY’S FEES
Appellants’ request for attorney’s fees was based upon a single sentence within appellants’ initial brief. However, attorney’s fees must be requested by filing a separate motion. See Fla. R. App. P. 9.400(b); Melwebb Signs, Inc. v. Wright, 394 So. 2d 475, 477 (Fla. 1st DCA 1981); Munroe Mem’l Hosp. v. Thompson, 388 So. 2d 1338, 1339 (Fla. 1st DCA 1980). Furthermore, “the failure to file a motion for attorney’s fees in accordance with Florida Rule of Appellate Procedure 9.400(b) is a proper basis for the denial of attorney’s fees on appeal.” Salley v. City of St. Petersburg, 511 So. 2d 975, 977 (Fla. 1987). Accordingly, appellants’ request for attorney’s fees is denied. (KLEIN and TAYLOR, JJ., concur.)
