B & L Motors, Inc. v. Bignotti

• Citation: 427 So.2d 1070
• Decision Date: 11 March 1983
• Docket Number: No. 82-673,82-673
• Court: Court of Appeal of Florida (US)
• Parties: B & L MOTORS, INC., d/b/a Bert Jackson Volkswagon, Appellant/Cross-Appellee, v. Cindy BIGNOTTI, Appellee/Cross-Appellant.

Page 1070

427 So.2d 1070

B & L MOTORS, INC., d/b/a Bert Jackson Volkswagon, Appellant/Cross-Appellee, v. Cindy BIGNOTTI, Appellee/Cross-Appellant.

No. 82-673.

District Court of Appeal of Florida Second District.

March 11, 1983.

George E. Tragos of Case, Kimpton, Tragos & Burke, P.A., Clearwater Beach, for appellant/cross-appellee.

Owen S. Allbritton of Allbritton & Barber, P.A., Clearwater, for appellee/cross-appellant.

LEHAN, Judge.

Defendant appeals a judgment awarding plaintiff attorney's fees and costs pursuant to section 501.2105, Florida Statutes (1979) (the "Little FTC Act").

A jury awarded plaintiff $6,500 in damages. The trial court entered a final judgment in that amount for plaintiff on December 11, 1980. On the same day, the trial court also entered a separate order denying defendant's motion for new trial and reserving action on plaintiff's request for attorney's fees and costs until exhaustion of all appeals in the case. The court did not in the final judgment reserve jurisdiction to award fees and costs. Defendant appealed the verdict, and this court affirmed on August 28, 1981. Thereafter, at plaintiff's request, defendant paid the judgment, and plaintiff provided a satisfaction of judgment which was recorded on October 1, 1981. The trial court, over the objection of defendant, entered judgment on March 11, 1982, for $7,272.79 in attorney's fees and costs. This appeal followed.

Defendant argues that the trial court did not have jurisdiction to enter the judgment awarding fees and costs because the prior judgment was satisfied and, in any event, did not reserve such jurisdiction, and the separate order was not sufficient for that purpose. Plaintiff contends that there was a satisfaction of only the prior judgment and that no reservation of jurisdiction in that judgment was necessary because section 501.2105 grants the trial court the power to award fees and costs after judgment and exhaustion of all appeals in the case.

We affirm the judgment awarding attorney's fees. Section 501.2105, in pertinent part, provides:

(1) In any civil litigation resulting from a consumer transaction involving a violation of this part ... the prevailing party, after judgment in the trial court and exhaustion of all appeals, if any, shall receive his reasonable attorney's fees and costs from the nonprevailing party.

(2) The attorney for the prevailing party shall submit a sworn affidavit of his time spent on the case and his costs incurred for all the motions, hearings, and appeals to the trial judge who presided over the civil case.

(3) The trial judge shall award the prevailing party the sum of reasonable costs incurred in the action plus a reasonable legal fee for the hours actually spent on the case as sworn to in an affidavit.

(4) Any award of attorney's fees or costs shall become a part of the judgment and subject to execution as the law allows.

Appellant argues that a reservation of jurisdiction is invalid unless made in the final judgment itself, citing Church v. Church, 338 So.2d 544 (Fla. 3d DCA 1976), and Frumkes v. Frumkes, 328 So.2d 34 (Fla. 3d DCA 1976). While those dissolution of marriage cases and others cited by appellant do require that a court reserve jurisdiction to make later awards of attorney's fees, they do not hold that the reservation must be made in the final judgment as opposed to a separate, contemporaneous order.

Appellant also argues that subsection (4) of the statute prevents the subsequent judgment for attorney's fees because subsection (4) refers to "the" judgment and, therefore, the statute contemplates only one judgment. Appellant argues that, accordingly, the trial court would have no jurisdiction to enter a second judgment. We do not find that argument persuasive. It would require us to ignore subsection (1) which clearly contemplates a two-step procedure under which judgment is first entered on liability, and then, after any appeals, attorney's fees are awarded. Although subsection (1) does not literally refer to accomplishment of that second step as being in the form of a judgment, which was what the trial court here called the attorney's fee award, we think that the label placed by the trial court on the award was not inconsistent with the statute. To the extent that subsections (1) and (4) may appear to be in conflict here, we would, under well-recognized rules of statutory construction, reconcile them by finding the intent of the legislature to be that the second judgment for, or award of, attorney's fees would be legally considered as merged with the first judgment for damages into the one judgment referred to in subsection (4). This construction follows from the statutory language in subsection (4) that any attorney's fee award "shall become" a part of the first judgment.

Appellant further argues that since the satisfaction of judgment was recorded prior to the order awarding attorney's fees, the court no longer had jurisdiction in the case to make the award, citing Dock & Marine Construction Corp. v. Parrino, 211 So.2d 57 (Fla. 3d DCA 1968). Dock does hold that "the payment and satisfaction of the judgment ... precluded the subsequent entry of an order or judgment for costs." Id. at 59. However, we do not believe that the result expressed in Dock prevents the award of attorney's fees in this case. Dock relied upon section 57.041, Florida Statutes, which said that "the party recovering judgment shall recover all his legal costs which shall be included in the judgment." Section 501.2105(4), on the other hand, says that the attorney's fee award "shall become a part of the judgment." The American Heritage Dictionary (1973) defines "be" as "to exist in actuality" and defines "become" as "to be the fate or subsequent condition of." There is no requirement in section 501.2105 that the attorney's fee award be a part of the damages judgment initially. In fact, as noted above, section 501.2105 specifically contemplates a two-step procedure, and there appears to be no reason why the satisfaction of the damages awarded under the initial judgment should destroy the right given by the legislature to obtain an award of attorney's fees under the second step.

There is another argument for appellant's position which is similar to the foregoing argument, based upon Dock, as to lack of jurisdiction in the trial court to award attorney's fees. This other argument is that, since at the time of the second judgment awarding attorney's fees the first judgment had been extinguished by the satisfaction, there was nothing for the award to become a part of. However, the basis for this argument, which appears to be central to the contentions of appellant, is that a satisfaction of judgment causes the judgment to be wholly extinguished or to disappear totally. We do not agree. Dock does not say that nor do we interpret the law applicable to satisfactions of judgment to do so. The recognized effect of a satisfaction of judgment is only that it constitutes evidence of payment of the debt established by the judgment. Under Florida Rule of Civil Procedure 1.110(d), payment is an affirmative defense. See also Whiteside v. Dinkins, 86 Fla. 261, 97 So. 517 (1923), holding that a satisfaction of a judgment is a defense to a suit on the judgment. Accordingly, the execution and recording of the satisfaction of the initial judgment in the instant case did not extinguish that judgment or cause it to disappear. In our view the judgment remained sufficiently viable for the merger of the attorney's fee award into it so as to constitute fulfillment of the statutory procedures.

Our foregoing statutory interpretation under the facts of this case seems not only consistent with the wording of section 501.2105 as described above, but follows and does not defeat the clear intent of the legislature to provide attorney's fees to the prevailing party in a suit under that statute.

Appellant also argues two additional points. One is that appellee is not entitled to payment of costs for the prior appeal because appellee failed to serve a motion for costs within 30 days of the issuance of the mandate in the prior appeal, pursuant to Florida Rule of Appellate Procedure 9.400(a). Appellant's other point is that only the appellate court could award attorney's fees for time spent on the prior appeal and that the trial court was without jurisdiction to do so. As to the first point, although subsections (2) and (3) of section 501.2105 give the trial court authority to award costs for an appeal, section 501.2105 is silent as to the time for serving a motion for those costs. Rule 9.400(a), specifically establishing the time period within which to serve a motion for costs in the trial court, is not inconsistent with section 501.2105 and therefore controls. However, appellee did not move for, or obtain an award of, costs for the prior appeal. As to the other point, the trial court has authority under subsections (2) and (3) of section 501.2105 to award attorney's fees for an appeal. We construe the statute to contemplate a motion therefor to be filed in the trial court, but the statute does not establish a time period for the service of such motion. Rule 9.400 does not govern the time for service of such motion. Rule 9.400(b) refers to attorney's fee motions which are filed in the appellate court. The procedure followed by the trial court complied with the statute.

Appellee cross-appeals the denial of attorney's fees for time spent in recovering fees and costs in the trial court and on this appeal. We reverse and remand.

Section 501.2105 appears literally to encompass the award of fees to the prevailing party for motions and hearings to obtain the attorney's fees specifically authorized in the statute. Subsection (1) provides that the prevailing party "shall receive" his fees and costs, and subsection (2) provides that the affidavit shall include the attorney's time spent and costs incurred "for all the motions,...