12 Fla. L. Weekly Supp. 1143a
Attorney’s fees — Appellate — Insurance — Personal injury protection — Motion for conditional order awarding appellate attorney’s fees prior to resolution of appeal is premature
FISHMAN AND STASHAK, M.D.’S, P.A. d/b/a GOLD COAST OTHOPEDICS, also d/b/a GOLD COAST ORTHOPEDICS AND REHABILITATION (Sylvio Desir), and FISHMAN AND STASHAK, M.D.’S, P.A., d/b/a GOLD COAST ORTHOPEDICS, Also GOLD COAST ORTHOPEDICS AND REHABILITATION (Violet Gentles), Appellants, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Appellees. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case Nos. 04-17874 (09) and 04-17878 (11) Consolidated. September 19, 2005.
ORDER
(ROBERT LANCE ANDREW, J.) THIS CAUSE having come before the Court on Appellee’s Motion for a Conditional Order Awarding Attorney’s Fees, and the Court having considered same, having heard argument of counsel and being otherwise duly advised in premises, finds and decides as follows:
The consolidated appeals pending before this Court are from orders of the trial court transferring venue of the actions to Palm Beach County, Florida. This Court has not rendered any decision on the appeals. Appellee is now moving for this Court to enter a conditional order awarding it appellate attorney’s fees, if Appellee ultimately prevails below. Appellee cites the case of Aksomitas v. Maharaj, 771 So.2d 541, 544 (Fla. 4th DCA 2000) in support of its argument that this Court has jurisdiction to award appellate fees, notwithstanding the fact that no decision has been rendered by this Court. While this Court agrees with the holding in Aksomitas, that an appellate court may grant a motion for appellate attorneys fees conditioned upon that party’s prevailing overall, this Court finds Appellee’s argument to be misplaced. In Aksomitas, the appellate court granting of conditional appellate attorneys fees occurred when the appellate court reversed and remanded the matter to the court below. The case does not stand for the proposition that this Court may grant a motion for appellate attorney’s fees prior to resolution of the matter being appealed. Nor can this Court find any other authority which permits the appellate court to grant a motion for appellate attorney’s fees on a pending appeal.1 As such, this Court finds that Appellee’s motion is premature.
Accordingly, it is hereby
ORDERED AND ADJUDGED that Appellee’s Motion to Entry of a Conditional Fee Order is DENIED without prejudice.
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1The only cases this Court found which awarded attorney’s fees pending appeal deal were those dealing dissolution of marriage.
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