Fisher v. John Carter and Associates, Inc.

• Decision Date: 07 January 2004
• Docket Number: No. 4D02-3992.,4D02-3992.
• Citation: 864 So.2d 493
• Parties: Dennis FISHER, Jr., Appellant, v. JOHN CARTER AND ASSOCIATES, INC., a Florida corporation, and T. Edward Hanner, individually, Appellees.
• Court: Florida District Court of Appeals

864 So.2d 493

Dennis FISHER, Jr., Appellant, v. JOHN CARTER AND ASSOCIATES, INC., a Florida corporation, and T. Edward Hanner, individually, Appellees.

No. 4D02-3992.

District Court of Appeal of Florida, Fourth District.

January 7, 2004.

Debra D. Duckett, Boca Raton, for appellant.

Richard J. Sarafan of Genovese, Joblove & Battista, P.A., Miami, for appellees.

POLEN, J.

This appeal arises out of a disputed award of attorneys' fees. Fisher filed a five-count complaint against Carter & Associates for (I) breach of contract, (II) shareholder's derivative suit, (III) accounting, (IV) wrongful termination under the Whistle-Blowers Act, and (V) breach of fiduciary duty. The trial court bifurcated the trial to first adjudicate Count I and Count IV. After the one-day trial, the court granted Carter's motion for involuntary dismissal as to Count I (breach of contract) and Count IV (the Whistle-Blower claim), dismissed the remaining counts, and entered final judgment on August 8, 2001, expressly reserving jurisdiction to award fees in favor of Carter. That judgment on the merits has since been affirmed.

Carter moved for attorneys' fees under section 57.105, Florida Statutes, on November 19, 2001, more than three months after the August 8, 2001, final judgment was entered. The motion alleged that there was no justiciable issue of fact or law and that Fisher knew of the lack of evidence. The motion was set for hearing on February 4, 2002. At the hearing, Fisher made essentially two arguments in opposition to the awarding of fees. First, Fisher incorrectly argued that Florida black letter law required claims for fees to be specifically pled. Second, Fisher argued Florida Rule of Civil Procedure 1.525 absolutely barred any application for attorneys' fees not filed within thirty days of final judgment, and that the thirty-day deadline could not be extended.

The trial court rejected Fisher's second argument, finding Florida Rule of Civil Procedure 1.525 to be non-jurisdictional, but denied Carter's motion for fees "based on an absence of pleaded prayer therefor." After the hearing, Carter filed a motion for rehearing based upon the trial court's reliance on Fisher's incorrect statement of law. Fisher filed a memorandum in response, arguing the issues of timeliness and entitlement. The rehearing took place on March 26, 2002. Both parties presented their arguments to the court. Fisher claims that the court cut short his argument on entitlement by clarifying that the only issue being addressed was whether Carter had properly pled for fees. Though the court did express words to that effect, it quickly explained that timeliness was the only issue upon which it had not reached a conclusion. Notwithstanding, Fisher proceeded to present in full his argument on the merits of entitlement. The court thereafter entered an order adjudicating Carter's entitlement to an award of fees and costs with the amount thereof to be quantified either by agreement of the parties or at a later evidentiary hearing. Eventually the parties reached an agreement as to the appropriate amount of fees and costs to be awarded, and a final judgment for those agreed amounts was accordingly entered. It is from that final judgment which Fisher now appeals. For the reasons stated below, we affirm the award of attorneys' fees.

Fisher's first argument on appeal is that Carter's motion for section 57.105 fees was untimely under Florida Rule of Civil Procedure 1.525, or otherwise untimely because more than three months expired from the entry of final judgment before the motion was filed. Florida Rule of Civil Procedure 1.525 provides that "any party seeking a judgment taxing costs, attorneys' fees, or both shall serve a motion within 30 days after filing of the judgment...." Actions that were still pending when Florida Rule of Civil Procedure 1.525 became effective are subject to the rule. See Diaz v. Bowen, 832 So.2d 200 (Fla. 2d DCA 2002) (holding that the rule requiring a party seeking attorneys' fees and costs to serve a motion within thirty days after filing of the judgment applied to action that was pending when rule became effective, and thus, vendor's motion for attorneys' fees and costs, which was filed seventy-seven days after judgment, was untimely). As such, this action is subject to rule 1.525 because the case was still pending after the effective date of January 1, 2001. Final judgment was entered on August 8, 2001. Carter reframes the issue on appeal as whether the trial court had discretion to extend the thirty-day deadline under rule 1.525. Carter alleges that the thirty-day deadline is subject to being extended by the trial court in accordance with Florida Rule of Civil Procedure 1.090(b) (authorizing a trial court to enlarge the time for performing acts "allowed to be done at or within a specified time ..., by these rules").

Former section 768.79, Florida Statutes (1991) (offer of judgment and demand for judgment) and section 45.061(2), Florida Statutes (1987) (offers of settlement), required a motion for attorneys' fees to be filed within thirty days after the entry of final judgment. The third district believed the express language of the Florida Statutes § 768.79 required the motion for attorneys' fees to be filed within thirty days after the entry of judgment regardless of whether the trial court reserved jurisdiction to award attorneys' fees. Bodek v. Gulliver Academy, Inc., 659 So.2d 354 (Fla. 3d DCA 1995). On the contrary, the first district interpreted the thirty-day time limit in section 45.061(2), Florida Statutes, as non-jurisdictional or rather that a reservation of jurisdiction to award attorneys' fees operated as an enlargement of time for the filing of a motion for attorneys' fees under Florida Rule of Civil Procedure 1.090(b). Gilbert v. K-Mart Corp., 664 So.2d 335 (Fla. 1st DCA 1995).

In Gulliver Academy, Inc. v. Bodek, 694 So.2d 675 (Fla.1997), the Florida Supreme Court resolved the split and adopted the first district's view by recognizing that Florida Rule of Civil Procedure 1.090(b) applies to both statutes. The Supreme Court held that

when the trial court entered final judgment, the court reserved jurisdiction to entertain a motion for attorney fees and costs. This reservation of jurisdiction allowed the trial court to consider further proceedings on the issue of attorney fees even though the motion for fees was filed more than thirty days after the entry of judgment. We find that a reservation of jurisdiction in a final judgment is procedurally an enlargement of time under rule 1.090(b), which may allow a party to file late a motion for attorney fees. Any other interpretation would make the trial court's reservation in the final judgment not only a nullity but a procedural trap.

Id.

Consequently, we read Gulliver as supporting by way of analogy that the reservation of jurisdiction extends the time for filing a motion for attorneys' fees. Furthermore, the Supreme Court announced in Gulliver that no finding of excusable neglect was required to extend the time for filing a motion for attorney fees through reservation of jurisdiction in the final judgment; excusable neglect would only be a necessary finding if the reservation of jurisdiction occurred after the thirty-day time requirement. Id. In the instant case, the trial court expressly reserved jurisdiction to award attorneys' fees in the final judgment, thus dispensing with the need to show that the failure to act within the time period was the product of excusable neglect in order to enlarge the time period under the rule. Though Gulliver was decided before Florida Rule of Civil Procedure 1.525 was adopted, the pertinent time provisions of the two statutes are so closely analogous to the rule that we can find no reason not to extend its holding.

We are unsure whether we are in conflict with Wentworth v. Johnson, 845 So.2d 296 (Fla. 5th DCA 2003). In Wentworth, the fifth district rejected an argument that a reservation of jurisdiction in a final judgment entitles a party to an automatic extension of the thirty-day time limit to file a motion for fees.

A request for fees and costs contained within a complaint or answer simply puts one's adversary on notice that a claim for fees and costs will be sought at the conclusion of the case. It is neither self-effectuating, nor sufficient in itself to comply with Rule 1.525. Diaz, 832 So.2d at 201. A separate motion must be filed in order to comply with this rule.

Wentworth, 845 So.2d at 298-99. Notwithstanding, the fifth district held that rule 1.090(b) does apply to rule 1.525, so that a trial court can enlarge the thirty-day time requirement upon a showing of excusable neglect. Id. at 298-300. To the extent we are in...