DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
MARGARET GREGOIRE and LESLY GREGOIRE,
Appellants,
v.
CITIZENS PROPERTY INSURANCE CORP.,
Appellee.
No. 4D20-194
[September 15, 2021]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michael A. Robinson, Judge; L.T. Case No. CACE18-
27513.
Sonya P. Randolph and Jose P. Font of Font & Nelson, PLLC, Ft.
Lauderdale, for appellants.
Emily C. Smith and Miriam R. Merlo of Gaebe, Mullen, Antonelli &
DiMatteo, Coral Gables, for appellee.
ON MOTION FOR REHEARING
PER CURIAM.
Following our affirmance of a final order in favor of Citizens Property
Insurance Corporation in litigation concerning the scope of a release
signed by appellants, Citizens moved for rehearing of our order denying its
motion for attorney’s fees, citing to paragraphs 4 and 5 of the release and
also citing to section 59.46, Florida Statutes (2019). We deny the motion
for rehearing. As we observed in the order denying fees, “the motion cites
no statutory authority for fees, points to no language in the release or
policy entitling it to fees, and does not say there was an offer of judgment.”
Rule 9.400(b) of the Florida Rules of Appellate Procedure provides that
“a motion for attorneys’ fees shall state the grounds on which recovery is
sought.” To satisfy this requirement, the movant “must provide substance
and specify the particular contractual, statutory, or other substantive
basis for an award of fees on appeal.” Hembd v. Dauria,
859 So. 2d 1238,
1240 (Fla. 4th DCA 2003) (quoting United Servs. Auto. Ass’n v. Phillips,
775 So. 2d 921, 922 (Fla. 2000)).
Section 59.46 provides that a statutory or contractual provision for an
award of attorney’s fees to the prevailing party shall be construed to
include attorney’s fees to the prevailing party on appeal. § 59.46, Fla. Stat.
(2019). That statute does not create a right to fees in the absence of some
other statutory or contractual provision providing for an award of fees.
Regarding any contractual basis to support an award of attorney’s fees,
Citizens’ motion for rehearing cites to paragraphs 4 and 5 of the release,1
neither of which contain an attorney’s fee provision. Paragraph 4
essentially states that appellants “had an opportunity to fully investigate
the extent and scope” of the damage they claimed. Paragraph 5 provides
that appellants would release Citizens from all past, present and future
claims, including attorney’s fees and costs, and that appellants are barred
from asserting any claims, including supplemental claims.
Citizens does not show any contractual provisions for an award of
attorney’s fees to Citizens as a prevailing party. The case law cited by
Citizens’ motion for fees is distinguishable. First Real Estate, LLC v. Grant,
88 So. 3d 1073, 1073 (Fla. 1st DCA 2012) (“The contract at issue in this
case includes a prevailing party attorney’s fee provision.”); Motter Roofing,
Inc. v. Leibowitz,
833 So. 2d 788, 789 (Fla. 3d DCA 2002) (reversing the
portion of order denying appellate attorney’s fees based on section
768.79(1), Florida’s offer of judgment statute).
CONNER, C.J., WARNER and GROSS, JJ., concur.
* * *
1 Citizens cited to paragraphs 5 and 6 of the release in its original motion for
attorney’s fees. In its motion for rehearing, it claims that it cited to paragraphs
4 and 5 in its original motion for attorney’s fees. In any event, there is no
contractual basis to entitle Citizens to prevailing party attorney’s fees even
considering all three of these paragraphs and any additional provisions of the
release cited by Citizens.
2
