David M. Woolin & Son, Inc. v. McKain , 1959 Fla. App. LEXIS 2861 ( 1959 )

PER CURIAM.

The petition for rehearing in this cause seeks a reconsideration of the order of April 10, 1959 in which we awarded a fee of $250 to counsel for respondent Irene Mc-Kain for compensation for his services in connection with the application for certio-rari in this court. Petitioners allege and this record shows that the counsel for respondent McKain in this cause filed no brief. The only services rendered by him were his appearance and participation in the oral argument before the court.

Florida Appellate Rule 4.5, subd. c(3), 31 F.S.A. requires the respondent to file a brief in opposition to the writ and serve a copy thereof upon the petitioner within twenty days after he has been served with a copy of petitioner’s brief. The rule is obviously designed to enable the petitioner to meet the contentions of the respondent at oral argument but primarily to be of assistance to the appellate court in the disposition of the matter after the oral argument. In this instance we were required in the examination of these proceedings after the oral argument to do the research work which should have been done by the attorney for respondent McKain. The awarding of fees for services in the appellate court is a matter within the discretion of the court. Because of the failure of the attorney for respondent McKain to file the brief required by the rules, the petition for rehearing is granted and the order allowing such fee, dated April 10, 1959, is vacated and set aside.

On reconsideration, after rehearing granted, the application for the allowance of fees for respondent McKain’s attorney, is denied.

CARROLL, CHAS., C. J., HORTON, J., and DREW, E. HARRIS, Associate Judge, concur.