BUSINESS SUCCESS GRP. v. ARGUS TRADE REALTY

• Decision Date: 23 February 2005
• Docket Number: No. 3D04-657.,3D04-657.
• Citation: 898 So.2d 970
• Parties: BUSINESS SUCCESS GROUP, INC., Appellant/Cross-Appellee, v. ARGUS TRADE REALTY INVESTMENT, INC., Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

898 So.2d 970

BUSINESS SUCCESS GROUP, INC., Appellant/Cross-Appellee, v. ARGUS TRADE REALTY INVESTMENT, INC., Appellee/Cross-Appellant.

No. 3D04-657.

District Court of Appeal of Florida, Third District.

February 23, 2005.

Langbein & Langbein and Evan J. Langbein, Aventura; Richard A. Friend, Miami, for appellant/cross-appellee.

Silverio & Hall and Mark V. Silverio, Miami, for appellee/cross-appellant.

Before COPE and GERSTEN, JJ., and DELL, JOHN W., Senior Judge.

PER CURIAM.

Business Success Group, Inc. (BSG), appeals from an order that denied its motion to determine entitlement to an assessment of attorney's fees against appellee, Argus Trade Realty Investment, Inc. (Argus). Argus cross-appeals the trial court's determination that BSG's motion for attorney's fees was timely under Florida Rule of Civil Procedure 1.525. We reverse that part of the order denying trial attorney's fees.

On December 19, 2000, Argus filed a complaint for eviction against BSG, a tenant in a building owned by Argus. On December 31, 2000, Argus closed the sale of its building to Galleria of Coral Way. BSG moved to dismiss Argus's complaint and also filed a counterclaim against Argus. The county court granted BSG's motion to dismiss Argus's complaint for eviction for lack of standing. After Argus filed a notice stating its intent not to amend its complaint, BSG sought dismissal of the case with prejudice and attorney's fees pursuant to section 57.105(5), Florida Statutes (2001). On January 10, 2002, the county court dismissed Argus's case with prejudice, reserved ruling on BSG's motion for entitlement to attorney's fees, granted Argus's motion to release funds deposited in the registry of the court, and transferred the case to the circuit court because BSG's pending counterclaim exceeded the jurisdictional limits of the county court.

BSG appealed and Argus cross-appealed the county court's order to the appellate division of the circuit court. Both parties filed motions for appellate attorney's fees. BSG also asked the appellate division of the circuit court to remand the case to the trial court to assess appellate and trial attorney's fees. The circuit court summarily affirmed the county court's order without addressing the trial court's reservation of jurisdiction on BSG's motion for trial attorney's fees. By separate order the circuit court summarily denied BSG's motion for attorney's fees. This Court summarily denied BSG's petition for writ of certiorari. Thereafter, BSG filed another motion for attorney's fees in the trial court. Argus claimed that the motion was untimely under Florida Rule of Civil Procedure 1.525.

In the order that is the subject of this appeal, the court correctly found that the motion for trial attorney's fees was timely filed. However, the court denied BSG's motion for appellate and trial attorney's fees based on law of the case. BSG contends that the trial court erred when it denied its motion for attorney's fees. We agree the court erred when it denied the motion for trial attorney's fees but find no error in the court's denial of BSG's motion for appellate fees.

The issue of BSG's entitlement to trial attorney's fees was not ripe for review by either the appellate division of the circuit court or by this Court in the certiorari proceedings. There was no appealable order or judgment on BSG's entitlement to trial attorney's fees because the trial court had reserved jurisdiction on this issue. "An appellate court may not decide issues that were not ruled on by a trial court in the first instance." Alamagan Corp. v. The Daniels Group, Inc., 809 So.2d 22, 27 (Fla. 3d DCA 2002) (citing Sierra by Sierra v. Public Health Trust of Dade County, 661 So.2d 1296, 1298 (Fla. 3d DCA 1995)

). "It is elementary that before a trial judge will be held in error, he must be presented with an opportunity to rule on the matter...