Wilson v. Southern Repair Services, Inc. , 812 So. 2d 445 ( 2001 )

812 So. 2d 445 (2001)

Woodrow WILSON, etc., et al., Appellants,
v.
SOUTHERN REPAIR SERVICES, INC., Appellee.

No. 5D00-3773.

District Court of Appeal of Florida, Fifth District.

November 30, 2001.

Gary C. Simons and Robert E. Seymour of Savage, Krim, Simons & Jones, LLC, Ocala, for Appellants.

John F. Welch of Welch & Welch, Ocala, for Appellee.

ON MOTION FOR CLARIFICATION

PLEUS, J.

Woodrow Wilson, etc., et al., (Wilson) has moved for a clarification as to appellate attorney's fees. The motion gives us an opportunity to explain our position regarding an award of appellate attorney's fees in cases remanded for new trial.

Wilson is claiming attorney's fees under an attorney fee provision in the contract which forms the basis of the suit. The contract contains the typical clause which entitles the prevailing party to attorney's fees throughout both trial and appellate proceedings. We denied Wilson's motion for appellate attorney's fees because the new trial is necessary to determine the prevailing party. Under the language of the attorney's fees provision in the contract, the question is not who is the prevailing party on appeal. The question is who is the prevailing party in the law suit. The three judge panel signed off on the motion "deny without prejudice." However, the order signed by the clerk merely states the motion is denied and inadvertently omitted the words "without prejudice." Should Wilson ultimately prevail in the retrial, he will be entitled to an award of appellate attorney's fees.

MOTION FOR CLARIFICATION GRANTED.

SAWAYA and PALMER, JJ., concur.