19 Fla. L. Weekly Supp. 86a
Online Reference: FLWSUPP 1902JHINInsurance — Attorney’s fees — Appellate — Timeliness of motion — Motion to tax appellate attorney’s fees, which was filed with answer brief, was timely filed
STATE FARM FLORIDA INSURANCE COMPANY, Appellant, vs. UNLIMITED RESTORATION SPECIALIST, INC., a/a/o JAY HINCHMAN, Appellee. Circuit Court, 7th Judicial Circuit (Appellate) in and for Volusia County. Case No. 2010-10012-APCC. L.C. Case No. 2009-23065-CONS. June 28, 2011. Appeal from the County Court, Volusia County. Honorable Shirley A. Green, Judge. Counsel: Elizabeth K. Russo, Killgore, Pearlman, Stamp, Ornstein & Squires, P.A., Orlando; and Russo Appellate Firm, P.A., Miami, for Appellant. Kevin B. Weiss, Weiss Legal Group, P.A., Maitland, for Appellee.ORDER GRANTING APPELLEE’S MOTION FORREHEARING, RECONSIDERATION AND/ORCLARIFICATION (AS TO THE DENIAL OFAPPELLEE’S ENTITLEMENT TO A CONDITIONALAWARD OF ATTORNEY’S FEES)[Original Opinion at 19 Fla. L. Weekly Supp. 85a]
ORIGINAL OPINION REVERSED. 37 Fla. L. Weekly D712b
Upon Consideration of UNLIMITED RESTORATION SPECIALIST, INC., a/a/o JAY HINCHMAN’s, (“Appellee”) “Motion for Rehearing, Reconsideration and or Clarification (as to the Denial of Appellee’s Entitlement to a Conditional award of Attorney’s Fees)” filed on May 16, 2011. The Court having reviewed the motion, “Appellee’s Notice of Filing Supplemental Authority,” “Appellant’s Response to Appellee’s Motion for Rehearing, Reconsideration, and or Clarification as to Order Denying Appellee’s Motion for a Conditional Award of Attorney’s Fees,” “Appellant’s Motion for Rehearing,” “Appellee’s Response to Appellant’s Motion for Rehearing,” and being otherwise fully advised in the premises, finds as follows
“Motions for rehearing are strictly limited to calling an appellate court’s attention — without argument — to something the appellate court has overlooked or misapprehended,” Cleveland v. State, 887 So.2d 362, 364 (Fla. 5th DCA 2004 [29 Fla. L. Weekly D1627b].) Further, a motion for rehearing should not be used to reargue the merits of the Court’s order or to express displeasure with its judgment, Amador v. Walker, 862 So.2d 729, 733 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D2791b]. Florida Rule of Appellate Procedure 9.400 (b) requires that a motion for attorney fees be filed no later than the time for service of the reply brief.
The time for filing of Appellant’s initial brief was July 17, 2010 after this Court granted Appellant two extensions of time. Appellant filed the initial brief on July 23, 2010, which required an answer to be filed by Appellee on or before August 20, 2010. Appellee requested two extensions of time to file the answer brief. This Court granted both extensions thereby making Appellee’s answer brief due on or before October 9, 2010. However, shortly after Appellee’s request for an extension of time. Appellee filed his answer and a “Motion to Tax Appellate Attorney Fees and Cost” on September 20, 2010. Lastly, the Reply brief which was due October 18, 2010 was timely filed on that date. Thus, after careful consideration of the instant Motion, the Court finds that Appellee’s “Motion to Tax Appellate Attorney Fees” was timely filed. Therefore, this Court Modifies its Opinion issued on May 9, 2011 as follows:
(1) Appellee’s “Motion to Tax Appellate Attorney Fees” is GRANTED, and
(2) Appellee’s request for Attorney Fees is remanded to the lower court to determine the amount as permitted pursuant to Florida Rule of Appellate Procedure 9.400 (b).
(3) Appellant’s “Motion for Rehearing” is DENIED.
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