15 Fla. L. Weekly Supp. 1058a
Insurance — Personal injury protection — Attorney’s fees — Appellate fees are awarded to medical provider that prevailed on appeal conditioned on provider ultimately prevailing in trial court proceedings
ASSURANCE AMERICA INSURANCE CO., Petitioner, vs. AFO IMAGING, INC. a/a/o Brittany Bogue, Respondent. Circuit Court, 13th Judicial Circuit (Appellate) for Hillsborough County. Case No. 08-3362, Division K. L.C. Case No. 07-11647. September 2, 2008. Counsel: Melissa McCullough, Vernis & Bowling of Central Florida, P.A., Deland, for Petitioner. David Caldevilla, de la Parte & Gilbert, P.A., Tampa; and Christopher P. Calkin, Tampa, Co-Counsel, for Respondent.
ORDER GRANTING CONDITIONAL APPELLATE ATTORNEY’S FEES
(WILLIAM P. LEVENS, J.) This matter is before the Circuit Court on AFO IMAGING, INC.’S (AFO) Motion for Appellate Attorney’s fees, timely filed on March 17, 2008. AFO seeks attorney’s fees pursuant to section F.S. §627.428, Florida Statutes. Although AFO prevailed in this certiorari proceeding, an award of attorney’s fees to the party prevailing on review of a trial court order must await determination of the prevailing party in the proceedings below. Stringer v. Katzell, 695 So.2d 369 (Fla. 4th DCA 1997). This is true whether review is by appeal or by petition. Foley v. Fleet, 652 So.2d 962 (Fla. 4th DCA 1995) (when party moves for “prevailing party” attorney’s fees in connection with nonfinal appeal or petition, District Court normally grants motion conditioned on movant ultimately prevailing in litigation). So that the trial court has authority to consider the matter at the appropriate time, in accordance with Foley v. Fleet, this Court grants AFO’s motion conditioned on its ultimately prevailing in the trial court proceedings.
