5 Fla. L. Weekly Supp. 645a
Insurance — Attorney’s fees — Appellate — Plaintiff not entitled to award of attorney’s fees pursuant to § 627.428, Florida Statutes, where there has been no determination that she is entitled to payment of disputed medical expenses, judgment has not been entered, and there has been no recovery — Plaintiff’s request for costs is premature
Additional ruling in this case at 5 Fla. L. Weekly Supp. 643a
CYNTHIA POKE, Plaintiff/Appellant, v. ALLSTATE INDEMNITY COMPANY, Defendant/Appellee. 9th Judicial Circuit, in and for Orange County. Case No. CVA97-16. L.T. Case No. SO96-523. June 12, 1998. Richard F. Conrad, George A. Sprinkel, IV and Robert M. Evans, Judges.
ORDER DENYING APPELLANT’S MOTION FOR
ATTORNEY’S FEES AND COSTS
THIS MATTER comes before the Court on Appellant, Cynthia Poke’s, Motion for Attorney’s Fees and Costs filed on September 11, 1997, pursuant to Florida Rule of Appellate Procedure 9.400. The Court, having considered the same and being otherwise fully advised in the premises, finds that:
1. Appellant seeks payment of appellate costs.
2. Pursuant to Florida Rule of Appellate Procedure 9.400(a), costs shall be taxed by the lower tribunal on motion served within thirty days after the issuance of the mandate. Fla. R. App. P. 9.400(a).
3. Appellant’s request for costs is premature.
4. Appellant requests an award of attorney’s fees pursuant to section 627.428, Florida Statutes, which provides:
(1) Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured . . . under a policy or contract executed by the insurer, the trial court or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s . . . attorney prosecuting the suit in which recovery is had.
5. As a result of this appeal, Appellant has the right to maintain her action against Appellee. There has been no determination that she is entitled to payment of the disputed medical expenses. A judgment has not been entered in this matter and Appellant has not recovered anything from Appellee.
6. Therefore, Appellant is not entitled to an award of attorney’s fees pursuant to section 627.428, Florida Statutes.
Accordingly, it is hereby
ORDERED AND ADJUDGED that Appellant’s Motion for Attorney’s Fees is DENIED.
FURTHER ORDERED that Appellant’s Motion for Costs is DENIED without prejudice to Appellant filing a proper timely motion in the lower court.
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