                                    IN THE DISTRICT COURT OF APPEAL
                                    FIRST DISTRICT, STATE OF FLORIDA

TRAVELERS COMMERCIAL                NOT FINAL UNTIL TIME EXPIRES TO
INSURANCE COMPANY, AN               FILE MOTION FOR REHEARING AND
AFFILIATE OF TRAVELERS              DISPOSITION THEREOF IF FILED
INSURANCE CO., AND
TRAVELERS CASUALTY AND              CASE NOS. 1D15-1121/1D15-3480
SURETY COMPANY,

      Appellants,

v.

CRYSTAL MARIE
HARRINGTON,

      Appellee.

_____________________________/

Opinion filed February 26, 2016.

An appeal from the Circuit Court for Columbia County.
Wesley R. Douglas, Judge.

James P. Waczewski, of Luks, Santaniello, Petrillo & Jones, Tallahassee, for
Appellants.

Stephen C. Bullock, of Brannon Brown Haley & Bullock, P.A., Lake City, for
Appellee.



SWANSON, J.

      We have for review two consolidated appeals both arising from two orders,

each denying appellants’ motions to vacate judgments awarding “prevailing party”
appellate attorneys’ fees to appellee, Crystal Harrington.      For the following

reasons, we reverse.

      In 2012 this Court affirmed in part and reversed in part a final summary

judgment favorable to appellee involving the stacking of uninsured motorist

benefits and the amount of benefits recoverable by her, while certifying two

questions to the Florida Supreme Court regarding those issues. See Travelers

Commercial Ins. Co. v. Harrington, 86 So. 3d 1274, 1278 (Fla. 1st DCA 2012)

(Travelers I). In addition, we granted appellee’s motion for “prevailing party”

attorneys’ fees pursuant to section 627.428, Florida Statutes, and remanded the

case to the trial court to determine the amount. Our mandate issued on May 10,

2012. Travelers Commercial Insurance Company (“Travelers” or “appellant”) did

not move to stay the mandate but, instead, petitioned the Florida Supreme Court to

review our decision.

      On August 24, 2012, while review was pending in the supreme court, the

trial court entered a final judgment against Travelers for appellate attorneys’ fees

and costs in the amount of $147,805.00. Travelers did not seek review of the fee

judgment in this Court by way of Florida Rule of Appellate Procedure 9.400(c),

but did file a “Motion to Stay Enforcement of Judgment,” pending review of

Travelers I by the supreme court. The trial court granted a temporary stay, giving

Travelers time to post a bond to effectuate an automatic stay under Florida Rule of

                                         2
Appellate Procedure 9.130(b). Travelers complied with the bond requirement,

which was issued by Travelers Casualty and Surety Company of America (“the

Surety” or “appellant”). A few months later, appellee filed an emergency motion

seeking to terminate the stay and collect on the bond. The trial court granted the

motion, directing the immediate release of the bond in the court’s registry to

appellee’s attorneys, and imposed a second judgment requiring the Surety to pay

fees and costs by then totaling $150,613.30. In the meantime, the Florida Supreme

Court granted Travelers’ “Emergency Motion to Stay Further Proceedings, to Stay

Enforcement of Appellate Fees Orders, and to Recall Mandate,” thereby staying all

proceedings before the trial court and this Court pending disposition of Travelers’

petition for review. After Travelers filed its initial brief, however, the supreme

court entered an order requesting supplemental briefs from the parties addressing

the following question:

      After issuing an opinion on the merits, the district court granted
      Respondent’s [appellee’s] motion for appellate attorney’s fees and
      remanded to the trial court to set the amount. The trial court then
      issued an order granting Respondent appellate attorney’s fees, and
      Petitioner did not file a motion for review of that order pursuant to
      Florida Rule of Appellate Procedure 9.400(c). The enforcement of the
      order has been stayed.

      Petitioner is hereby directed to serve a supplemental initial brief
      addressing whether an award of appellate attorney’s fees is final
      because a motion for review of that award order was not timely filed,
      or whether the award must be quashed if the appeal on the merits is
      successful because the award is a derivative claim.

                                        3
Travelers filed its supplemental brief in which it asserted that were it to prevail

before the supreme court, it could afterward obtain relief from the fee judgment in

the trial court by motion filed pursuant to Florida Rule of Civil Procedure

1.540(b)(5). Appellee filed a motion asking the supreme court to lift the stay and

allow enforcement of the judgment, urging that by vacating the stay to allow

execution of the “non-appealed Final Judgment Awarding Reasonable Appellate

Attorney’s Fees, [Travelers’] rights under Fla. R. Civ. P. 1.540(b)(5), if any, are

preserved.” (Emphasis added.)

         On October 23, 2014, the Florida Supreme Court issued its opinion in

Travelers Commercial Insurance Co. v. Harrington, 154 So. 3d 1106 (Fla. 2014)

(Travelers II), answering the certified questions and consequently quashing

Travelers I. It did not, however, address the question which had been the subject

of the supplemental briefs. Instead, per appellee’s motion, the supreme court

ruled:

         Upon consideration of Respondent’s [appellee’s] Motion to Vacate in
         Part this Court’s Stay Order of February 8, 2013, and response
         thereto, it is ordered that said motion is granted. We hereby lift the
         portion of the stay relating to enforcement of the underlying appellate
         fees judgment entered by the First District Court of Appeal. See Fla.
         R. App. P. 9.400(c) (providing that review of appellate attorneys’ fees
         orders “shall be by motion filed in the Court within 30 days of
         rendition”).

         However, Respondent’s motion for attorneys’ fees filed in this Court .
         . . [is] hereby denied.

                                           4
(Emphasis added.) The supreme court’s Mandate to this Court—commanding

“that further proceedings be had in accordance with said opinion”—issued on

February 2, 2015.

      On January 15, 2015, prior to the issuance of the supreme court’s mandate

in Travelers II, but because of the supreme court’s decision to lift the stay,

appellants filed their “Emergency Motion to Vacate Appellate-Fee Judgments

Pursuant to Rule 1.540(b)(5),” seeking to vacate the original and second appellate

fees judgments based on the supreme court’s quashal of Travelers I on which the

award of the fees was premised. On February 11, 2015, the trial court entered an

order denying appellants’ emergency motion. Appellants appealed the order to this

court in the first of these consolidated appeals, appellate court case number 1D15-

1121. In addition, on remand of Travelers I, Travelers also filed an emergency

motion to vacate this Court’s original order awarding appellee the prevailing party

appellate attorneys’ fees, as well as the resulting fees judgments. On April 2,

2015, in Travelers I, this Court entered an order on Travelers’ emergency motion

to vacate, stating:

            1. This court’s order dated May 10, 2012, granting Appellee’s
      motion for appellate attorney’s fees is vacated, and Appellee’s motion
      for appellate attorney’s fees, filed October 17, 2011, is denied. See
      Citizens Property Ins. Co. v. Uebershaer, 981 So. 2d 1265 (Fla. 1st
      DCA 2008).

            2. The request to set aside the judgments resulting from this
      court’s prior order granting Appellee’s motion for appellate attorney’s
                                        5
      fees is denied without prejudice to Appellant seeking such relief in the
      trial court. This court expresses no view as to how the trial court
      should rule on the request for such relief.

Also on April 2, 2015, we entered an Order on Mandate, setting aside our opinion

in Travelers I and ordering that the opinion of the supreme court filed on October

23, 2014, “replace this Court’s opinion and accompany the mandate of this Court

to the Circuit Court for Columbia County.” Our mandate issued that same day.

      Thereafter, in appellate court case number 1D15-1121 (appellants’ first

appeal from the trial court’s fees judgments), appellants moved this Court to

relinquish jurisdiction for thirty days so they could pursue a second motion to

vacate the attorneys’ fees judgments based on the above-quoted order entered on

remand in Travelers I. They pointed out that the trial court’s order on appeal in

appellate court case number 1D15-1121 was premised on the fact that it could not

disturb our initial decision to award prevailing party appellate attorneys’ fees, as

Travelers failed to seek review of the fee order via Florida Rule of Appellate

Procedure 9.400(c). On May 12, 2015, this Court issued the following order:

      Appellants’ motion to relinquish jurisdiction filed April 10, 2015, is
      granted, and jurisdiction is hereby relinquished to the lower tribunal
      through and until June 12, 2015, for the purpose of considering
      appellants’ second motion to vacate appellate fee judgments. At the
      end of the relinquishment period, jurisdiction shall automatically
      revest with this court. On or before June 19, 2015, appellants shall
      file a status report advising of the need for further proceedings herein.




                                         6
      Appellants filed a second motion to vacate in the trial court. On July 13,

2015, the trial court entered its “Order Denying Defendants’ Second Motion to

Vacate Appellate Fee Judgments.” The trial court gave the following reasons to

explain its ruling:

      a) In the first appeal, this Court denied Travelers’ motion to vacate
      those judgments without prejudice to seek such relief from the trial
      court, and whatever the trial court was to decide, this Court would be
      in a position to review the trial court’s ruling.

      b) The “federal cases provided by Travelers do provide guidance . . .
      [but] with the lack of local precedent this court is reluctant to provide
      the relief requested by Travelers.”

      c) “The Florida Supreme Court refused to vacate the Final Judgment .
      . . and certainly [it] could have provided the guidance to use [Rule
      1.540],” but did not.

      d) The Second Motion to Vacate should be denied because Travelers
      did not file a motion for review of the appellate fees judgments under
      Rule 9.400; because there is no precedent regarding a trial court’s
      vacating an appellate court’s order granting appellate fees where no
      appellate review was sought; and because the “First DCA will review
      this order and determine how Florida will apply Fla. R. Civ. P. 1.540
      to this case.”

      e) The case law construing Rule 9.400 “confirms that an award of
      costs after a successful appeal may not be conditioned upon the
      ultimate outcome of the case. . . . The rationale for an award of
      reasonable attorneys’ fees under Rule 9.400 should be treated the
      same as the costs.”

As required by this Court’s order relinquishing jurisdiction, a status report was

filed in appellate court case number 1D15-1121, and jurisdiction was returned to

this Court as noted in a July 17, 2015, order. Appellants then filed a separate,
                                         7
timely, appeal from the trial court’s order, which was assigned appellate court case

number 1D15-3480, the second of the two consolidated appeals.             Appellants’

motion to consolidate the appeals for all purposes was granted. We turn now to

the merits of the parties’ arguments.

      Florida Rule of Civil Procedure 1.540(b)(5) provides in pertinent part as

follows:

      On motion and upon such terms as are just, the court may relieve a
      party . . . from a final judgment, decree, order, or proceeding for the
      following reasons: . . . (5) that . . . a prior judgment or decree upon
      which it is based has been reversed or otherwise vacated . . . .

A trial court’s ruling on a motion to vacate under rule 1.540 is reviewed for an

abuse of discretion. Buckman v. Beighley, 128 So. 3d 133 (Fla. 1st DCA 2013);

Rosso v. Golden Surf Towers Condo. Ass’n, 711 So. 2d 1298, 1300 (Fla. 4th DCA

1998). The “general principles governing [a] motion to vacate under Rule 1.540

include the rule that the motion is addressed to the sound judicial discretion of the

trial court.” Cutler Ridge Corp. v. Green Springs, Inc., 249 So. 2d 91, 93 (Fla. 3d

DCA 1971). However, when a trial court rules on the motion as a matter of law on

a pure question of law, our review is de novo. Mourning v. Ballast Nedam Constr.,

Inc., 964 So. 2d 889 (Fla. 4th DCA 2007). The purpose of rule 1.540(b)(5) “is to

enable the court to grant relief against an unjust decree, and [it] should be liberally

construed to advance such a remedy.” Cutler Ridge, 249 So. 2d at 93. Normally,

after rendition of a final judgment the trial court loses jurisdiction over the case,
                                          8
but rule 1.540 provides an exception. Bank One, Nat’l Ass’n. v. Batronie, 884 So.

2d 346, 348-49 (Fla. 2d DCA 2004) (holding rule 1.540 “‘gives the court

jurisdiction to relieve a party from the act of finality in a narrow range of

circumstances’”).

      In the present consolidated appeals, the trial court denied both of appellants’

motions to vacate the two attorneys’ fees judgments. Regarding the first motion,

the trial court reasoned:

      [O]nly the First DCA can change the course of its appellate fee award.
      Travelers never sought to have the First DCA do so and the First DCA
      term ended. Travelers should have preserved its appellate rights by
      seeking a stay of the MANDATE or sought review pursuant to Fla.
      App. R. 9.400 but elected not to do so.

Furthermore, the trial court observed that Travelers had filed a supplemental brief

before the Florida Supreme Court raising all of the arguments it was then raising

before the trial court, yet the supreme court “denied Travelers’ request for relief

from the First DCA Appellate Attorney’s fee award and instead entered its Order

dated October 23, 2014 lifting its stay to allow Harrington to pursue collection of

the judgment award.”

      The question of whether the trial court was legally correct in the conclusions

it reached in this first order—presently the subject of the appeal in appellate court

case number 1D15-1121—is largely academic in light of the subsequent April 2,

2015, order rendered in Travelers I, in which this Court vacated its earlier order

                                         9
granting appellee’s motion for prevailing party appellate attorneys’ fees pursuant

to Ueberschaer, and our May 12, 2015, order, relinquishing jurisdiction “to the

lower tribunal . . . for the purpose of considering appellants’ second motion to

vacate appellate fee judgments.” Armed with those orders, appellants again moved

the trial court to vacate the appellate fees judgments via rule 1.540(b)(5).

      The trial court, however, once more refused to vacate the appellate fees

judgments, agreeing with appellee that appellants are not entitled to relief because

Travelers never appealed the appellate fees judgment in Travelers I. We conclude

the trial court erred in so ruling, since the issue is not one of preservation of error

but of appellants’ right to have a derivative fee award vacated when the underlying

merits judgment is reversed. See Ueberschaer, 981 So. 2d at 1266 (holding that

this Court’s reversal of its previous opinion due to the Florida Supreme Court’s

mandate quashing that opinion, “necessarily require[d] [this Court] to vacate [its]

previous order partially granting Appellee’s motion for appellate attorney's fees”).

Rule 1.540(b)(5) most certainly is a remedy perfectly suited for resolving the

problem of an award of prevailing party attorneys’ fees to one who is no longer a

prevailing party.   Contrary to the trial court’s belief that there is no “local”

precedent, Florida courts have recognized that when a merits judgment is reversed

or vacated, a judgment for attorneys’ fees flowing from that judgment should be

reversed, too, and the mechanism for relief is rule 1.540(b)(5). See, e.g., Viets v.

                                          10
Am. Recruiters Enters., Inc., 922 So. 2d 1090 (Fla. 4th DCA 2006). In Viets, the

Fourth District ruled that vacating the award of appellate fees was “mandatory”

even though the defaulting party had not appealed the lower court’s attorney’s fee

judgment. Id. at 1096. Accord Marty v. Bainter, 727 So. 2d 1124, 1125 (Fla. 1st

DCA 1999) (“Once a final judgment is reversed and remanded by an appellate

court, there can be no prevailing party for purposes of an award of prevailing party

attorney’s fees. Consequently, an award of attorney’s fees and costs predicated on

a reversed or vacated final judgment also must be reversed.”) (citing cases).

      As its first justification for denying appellants’ second motion to vacate, the

trial court referred to appellants’ acknowledgment that they had made a “tactical”

decision not to appeal the original fee award, and admonished them that rule 1.540

“cannot be used as an end-run around all appellate rules,” citing Sacco v. Slavin,

641 So. 2d 955 (Fla. 3d DCA 1994). In Sacco, the Third District affirmed the trial

court’s denial of the appellants’ rule 1.540(b)(1) motion, recognizing “[t]he Florida

Supreme Court has said that Rule 1.540 was not intended to serve as a substitute

for the new trial mechanism prescribed by Rule 1.530 nor as a substitute for

appellate review of judicial error.” Id. at 957 (citing Curbelo v. Ullman, 571 So.

2d 443, 444 (Fla. 1990)) (internal quotation marks omitted). But in Sacco, the

appellants, defendants below, were served with a default final judgment. Instead

of filing a motion for rehearing or an appeal, they let the time expire while trying

                                         11
to work out a settlement with the plaintiffs. Thereafter, they filed the motion to

vacate the final judgment. The Third District held:

      The principal difficulty we have with the defendants’ position is their
      failure to file a motion for rehearing or to take an appeal. Defendants
      learned of the entry of judgment on June 24, the same day it was
      entered. Defendants had ten days to move for rehearing, see Fla. R.
      Civ. P. 1.530(b), and thirty days within which to file a notice of
      appeal. The gist of the defendants’ position is that the trial court
      abused its discretion in allowing defense counsel to withdraw without
      allowing at least a brief continuance to obtain substitute counsel. That
      argument could have been raised by motion for rehearing or upon
      appeal from the final judgment.

Id. at 956-57. The situation in Sacco is in no way comparable to the circumstances

in the present case, where Travelers had nothing to appeal because the original

prevailing party attorneys’ fees judgment was predicated on this Court’s

affirmance of the trial court’s merits judgment.        Nonetheless, it did employ

measures to protect itself from the immediate enforcement of that judgment

through motions for stay of execution. Yet, the trial court here, quoting from

Miller v. Fortune Insurance Co., 484 So. 2d 1221, 1223 (Fla. 1986), held “it has

never been the role of the trial courts of this state to relieve attorneys of their

tactical mistakes . . . and nothing in Rule 1.540(b) suggests otherwise.” (Internal

quotation marks omitted.) In all due respect to the learned trial court, we do not

interpret appellants’ methods as a tactical “end run” around appellate review. In

Miller, the Florida Supreme Court was confronted with an attorney’s error in

voluntarily dismissing his client’s case with prejudice, instead of without prejudice.
                                         12
While decrying legal shenanigans in general, the supreme court actually held in the

case before it that “the limited jurisdiction conferred on the courts by rule 1.540(b)

to correct errors includes the power to correct clerical substantive errors in a

voluntary notice of dismissal.” Id. at 1224. It went on to agree “‘that Rule

1.540(b) may be used to afford relief to all litigants who can demonstrate the

existence of the grounds set out under the rule.’” Id. (quoting Shampaine Indus.,

Inc. v. S. Broward Hosp. Dist., 411 So. 2d 364, 368 (Fla. 4th DCA 1982))

(emphasis in original). It then said, “Rule 1.540(b) was intended to achieve this

result, and it should be interpreted in a manner consistent with its purpose.” Id.

      The rationale expressed in Miller actually supports appellants’ cause. At the

earliest, not until the supreme court quashed this Court’s decision in Travelers II

could appellants have even considered seeking relief from this Court’s appellate

fee award by way of rule 9.400. Granted, appellants’ could have moved to stay

this Court’s mandate in Travelers I pending review by the supreme court, but we

hold their failure to do so did not act to preclude them from seeking relief from the

trial court’s fees judgments via rule 1.540(b)(5). Consequently, the trial court

erred in concluding appellants had virtually hoisted themselves on their own petard

through their “tactical” decisions.     Indeed, were there any question of the

correctness of appellants’ “tactical” avenue for relief, certainly the impediment was

removed by this Court’s decision vacating the prevailing party fee award and its

                                         13
relinquishing jurisdiction to the trial court to consider appellants’ second motion to

vacate.

      In their argument, appellants directed the trial court’s attention to several

federal cases interpreting the very similar Federal Rule of Civil Procedure 60(b) in

a manner supportive of their second motion to vacate. The trial court found the

cases “do provide guidance,” but was “reluctant” to utilize them to provide

appellants relief because of “the lack of local precedent.” On the contrary, in Ohio

Casualty Group v. Parrish, 350 So. 2d 466 (Fla. 1977), the Florida Supreme Court

was called upon to resolve a dispute between the districts and to answer the

question whether rule 1.540(b) permits a trial court, after issuance of the appellate

court mandate, to entertain a timely motion pursuant to the rule without first

obtaining leave of the appellate court. Id. at 468. The supreme court noted that

“Fla. R. Civ. P. 1.540(b) closely resembles Federal Rule 60(b).” Id. at 469. It

therefore adhered to the pronouncement of the United States Supreme Court in

Standard Oil Co. of California v. United States, 429 U.S. 17 (1976), wherein the

Supreme Court was presented with a conflict on the same point of law. Our

supreme court noted the United States Supreme Court “resolved that conflict by

holding that appellate leave was not required.” Parrish, 350 So. 2d at 469. It then

quoted with approval the following passage from Standard Oil:

      “In our view, the arguments in favor of requiring appellate leave are
      unpersuasive. Like the original district court judgment, the appellate
                                         14
      mandate relates to the record and issues then before the court, and
      does not purport to deal with possible later events. Hence, the district
      judge is not flouting the mandate by acting on the motion. . . .
      Furthermore, the interest in finality is no more impaired in this
      situation than in any Rule 60(b) proceeding. Finally, we have
      confidence in the ability of the district courts to recognize frivolous
      Rule 60(b) motions. Indeed, the trial court ‘is in a much better
      position to pass upon the issues presented in a motion pursuant to
      Rule 60(b)[.]’”

Id. (quoting Standard Oil, 429 U.S. at 18-19) (internal citations omitted). Our

supreme court went on to add:

      Were we not persuaded by the policy considerations favoring
      abolition of the appellate-leave requirement, a careful reading of the
      rule itself would militate toward that position. While Fla. R. Civ. P.
      1.540(a) specifically requires leave of the appellate court as a
      prerequisite to correction of clerical mistakes arising after
      commencement of the appeal, subparagraph (b) of the rule contains no
      such condition. The absence of the appellate-leave requirement from
      subparagraph (b) where the same requirement was clearly stated in
      subparagraph (a) suggests that no such requisition was intended to
      attach to the former subparagraph.

Id. In this respect, California Medical Ass’n v. Shalala, 207 F.3d 575 (9th Cir.

2000), is on point. In that case, the Ninth Circuit Court of Appeals held there is no

need to appeal a fee judgment if the only issue with the judgment is that it should

be set aside if the merits appeal in the same case results in a change of the

prevailing party status.    Under those circumstances, a rule 60(b)(5) motion

suffices. Id. at 578. Thus, even though the trial court stated it had no “local”

precedent allowing it to grant appellants relief under their second rule 1.540(b)(5)


                                         15
motion, there was no legal impediment for it to turn to federal precedent applying a

similar procedural rule.

      The trial court also emphasized the Florida Supreme Court’s refusal in

Travelers II to vacate the final judgment on attorneys’ fees, its failure to address

rule 1.540(b)(5), and its pronouncement in its order lifting the stay that “relief

should have been requested in accordance with Fla. R. App. P. 9.400(c).” Because

the supreme court did not expressly rule on the issues raised in appellants’

supplemental briefing, we hold the above-quoted language does not control the

outcome of these appeals. Indeed, as appellants point out, they never requested the

supreme court to vacate the final judgment; instead, they explained that the trial

court was the appropriate forum in which to seek relief. Furthermore, even in her

motion asking the supreme court to lift the stay, appellee indicated her request

would not prejudice any rights appellants had under rule 1.540(b).

      Finally, the trial court justified its ruling on the basis that Travelers never

sought review of the initial appellate fee judgment in this Court pursuant to Florida

Rule of Appellate Procedure 9.400(c). But, as appellants argue, an appeal is not a

prerequisite to relief under rule 1.540(b)(5), where the basis of the motion is that

the underlying merits judgment was vacated or reversed, thereby removing the

underpinning of the challenged fee judgment. Had Travelers filed a rule 9.400(c)

motion in this Court in Travelers I, while review was pending in the supreme court,

                                         16
it would have been, at best, a premature challenge pending a decision from the

supreme court on the merits. In other words, it would have been a mere technical

exercise. Instead, a subsequent challenge under rule 1.540(b)(5), after the merits

opinion had been overturned and the appellate fee award vacated offered a more

amenable avenue for relief from the second fee judgment. As appellants suitably

argue, the exhaustion of appellate remedies has never been a prerequisite to the

entitlement of relief under rule 1.540(b)(5), or an impediment to the jurisdiction of

a trial court to consider whether to grant relief from a “final judgment” under that

subsection of the rule. For instance, in Mulato v. Mulato, 734 So. 2d 477 (Fla. 4th

DCA 1999), the Fourth District reversed the denial of a motion to vacate a prior

cost judgment entered by the trial court in favor of the party who lost the separate

appeal from the merits judgment, and instructed the trial court to re-assess who the

prevailing party was in light of the Fourth District’s prior decision in a separate

appeal. A similar conclusion was reached in Thornburg v. Pursell, 476 So. 2d 323,

324 (Fla. 2d DCA 1985), wherein the Second District ruled:

      The plaintiffs first contend that the trial court erred in denying their
      motion to tax costs incurred in the first trial. The court, in denying the
      plaintiff’s motion, explained that the cost judgment entered in favor of
      the defendants stood as the law of the case because the plaintiffs
      failed to appeal that cost judgment. We disagree. In the first appeal,
      we reversed and ordered a new trial on the issue of damages. Where a
      judgment is reversed on appeal, it is not proper to allow a cost
      judgment pending the outcome of the matter on remand. The trial
      court therefore erred in affirming the cost judgment entered in favor

                                         17
      of the defendants in the first trial because the judgment upon which it
      was predicated was reversed on appeal.

(Emphasis added). See also S. Nat’l Track Servs., Inc. v. DJ Gilley, 152 So. 3d 13

(Fla. 1st DCA 2014); River Bridge Corp. v. Am. Somax Ventures, 76 So. 3d 986

(Fla. 4th DCA 2011). Rather, the right to obtain relief from the prevailing party

fees judgment on the basis that the merits judgment was wrongly decided is

preserved by appealing the merits judgment. See Flowers v. S. Reg’l Physician

Servs., Inc., 286 F.3d 798, 800-02 (5th Cir. 2002); Shalala, 207 F.3d at 578; Maul

v. Constan, 23 F.3d 143, 147 (7th Cir. 1994). We consider the foregoing federal

rulings to provide persuasive authority for reversing the trial court’s order in the

present case. The cases relied on by the trial court as analogous authority,

primarily, Centennial Mortgage, Inc. v. SG/SC, Ltd., 864 So. 2d 1258 (Fla. 1st

DCA 2004), involved an award of costs and did not address the issue here, where a

party first prevails on appeal and is awarded prevailing party attorneys’ fees, but

later loses that right by fiat from a higher court.

      In sum, concerning appellate court case number 1D15-3480, we conclude

that once this Court vacated its award of prevailing party attorneys’ fees to

appellee upon remand from the supreme court’s decision in Travelers II, there was

no legal basis for the trial court to deny appellants’ second motion to vacate, since

appellee was no longer the prevailing party and no longer entitled to prevailing

party attorneys’ fees under section 627.428. Our decision in appellate court case
                                           18
number 1D15-3480, therefore necessarily renders moot any consideration of the

trial court’s order appealed in appellate court case number 1D15-1121.

        The trial court’s orders denying appellants’ motions to vacate the attorneys’

fees judgments are REVERSED, and the cause is REMANDED with directions for

the trial court to vacate the judgments awarding appellee her appellate attorneys’

fees.

RAY, J., CONCURS. ROWE, J., CONCURS IN RESULT.




                                          19
