6 Fla. L. Weekly Supp. 17d
Attorney’s fees — Justiciable issues — Error to limit attorney’s fee award to attorney’s contractual rate — Perez-Borroto v. Brea does not apply in awarding attorney’s fees pursuant to §57.105 — Appellant entitled to reasonable attorney’s fees in both county and appellate levels, even though appellee confessed error
U.S. SECURITY INSURANCE COMPANY, Appellant, vs. DR. BARRY BURAK, individually, DIAGNOSTIC/NUERO TESTING, DR. JOSEPH OVADIA, and DR. ROBERT ELIAS, Appellee. 11th Judicial Circuit in and for Dade County, Appellate Division. Case No. 97-384 AP. L.T. Case No. 95-8211 CC 25. Opinion filed August 28, 1998. An appeal from the County Court of Dade County, Marilyn Milian, Judge. Counsel: Michael A. Nuzzo and David B. Pakula, for Appellant. Kevin W. Whitehead, for Appellee.
(Before ARTHUR H. TAYLOR, PETER LOPEZ, LAWRENCE A. SCHWARTZ, JJ.)
This is an appeal from a denial of Appellant’s Motion for Reasonable Attorney’s fees pursuant to section 57.105 Fla. Stat. (1997). The Appellant is seeking fees for his representation in both the lower and appellate courts.
The lower court awarded attorney’s fees incorrectly applying Perez-Borota v. Brea, 544 So.2d 1022 (Fla. 1989) by limiting the fee award to the attorney’s contract rate of $90.00. A Notice of Appeal was filed. After Appellant filed his initial brief, the Appellee confessed error agreeing with the Appellant that attorney’s fees, not limited by the fee contract should be awarded in the court below. However, the Appellee argued that due to his confessing error, appellate attorney’s fees should be denied.
We find that Perez-Borroto, id. does not apply in awarding attorney’s fees pursuant to §57.105 Fla. Stat. (1997). The legislative intent behind the enactment of the statute is “…to discourage baseless claims, stonewall defenses and sham appeals in civil litigation by placing a price tag through attorney’s fees awards on losing parties who engage in these activities,…the award must be based only on the reasonable value of the services, not on whether or how much the prevailing party has actually paid, or why, in fact, no fee was paid”. Hatcher v. Roberts, 538 So.2d 1300, 1302 (1989) citing Wright v. Acierno, 437 So.2d 242, 244 (Fla. 5th DCA 1983). In accordance with Hatcher and Wright id., we decline to limit the Appellant’s attorney’s fees to his contractual rate, and find that the Appellant is entitled to a reasonable attorney’s fee in both the county and appellate levels.
REVERSED AND REMANDED with instructions to determine reasonable attorney’s fees in accordance with this opinion. (ARTHUR H. TAYLOR, PETER LOPEZ and LAWRENCE A. SCHWARTZ, JJ., concur.)
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