Financial & Investment Planning, Inc. v. Lieberman

475 So. 2d 1246, 10 Fla. L. Weekly 2282

Opinions

HUBBART, Judge

(dissenting).

I must respectfully dissent. I would grant the appellant Financial & Investment Planning, Inc.’s [FIP] motion for rehearing, reverse the order denying FIP’s motion for attorney’s fees, and remand the cause to the trial court with directions to award FIP a reasonable attorney’s fee in this case.

The basic facts of this case are set forth in Financial & Investment Planning, Inc. v. Lieberman, 452 So.2d 1022 (Fla. 3d DCA 1984), at a prior appearance of this same case before this court. In that case, we reversed an order of garnishment which had been entered by the trial court against the garnishee employer, the appellant FIP. We concluded that FIP owed no wages to the defendant debtor Henry Gherman at the time of the service of the writ of garnishment or at any time between the service of this writ and the time FIP filed its answer, and that, accordingly, FIP had been wrongfully required to pay to the plaintiff creditor, appellee herein, Lionel Lieberman, monies which were not owed by FIP to the defendant debtor.

On remand, the trial court entered the order now under review denying FIP’s motion for reasonable attorney’s fees incurred in defending this action at the trial level. Plainly, FIP is absolutely entitled to such an award under Section 77.28, Florida Statutes (1983), which provides:

“On rendering final judgment [in a garnishment action], the court shall determine garnishee’s costs and expenses, including a reasonable attorney’s fee, and the amount shall be taxed as costs.” (emphasis supplied)

I can therefore see no legal basis for the trial court’s denial of any attorney’s fees in this action after FIP properly proved the reasonable value thereof in an attorney’s fee hearing conducted below. Indeed, this court itself granted FIP a reasonable attorney’s fee on appeal in the prior appeal. In my view, there is no legal justification for now denying FIP a similar attorney’s fee award at the trial level.

I would grant the motion for rehearing, reverse the order under review and remand for further proceedings.