Gilbert v. K-Mart Corp.

• Decision Date: 14 December 1995
• Docket Number: No. 93-657,K-MART,93-657
• Citation: Gilbert v. K-Mart Corp., 664 So.2d 335 (Fla. App. 1995)
• Parties: 20 Fla. L. Weekly D2740 Bessie GILBERT, Appellant, v.CORPORATION, Appellee.
• Court: Florida District Court of Appeals

Page 335

664 So.2d 335

20 Fla. L. Weekly D2740

Bessie GILBERT, Appellant, v. K-MART CORPORATION, Appellee.

No. 93-657.

District Court of Appeal of Florida First District.

Dec. 14, 1995.

Bessie Gilbert, pro se, for Appellant.

Stephen B. Shell and John E. Wimberly, Jr., of Shell, Fleming, Davis & Menge, Pensacola, for Appellee.

ZEHMER, Chief Judge.

Bessie Gilbert appeals the trial court's order denying her motion for attorney's fees filed pursuant to section 45.061(2), Florida Statutes (1987). Because we conclude that the trial court erred in denying Appellant's claim for attorney's fees on the basis that the motion was untimely filed, we reverse.

Appellant instituted a personal injury action to recover damages for injuries allegedly sustained at one of the retail stores operated by Appellee, K-Mart Corporation (K-Mart). On June 28, 1989, Appellant filed an offer of settlement pursuant to section 45.061, in which she offered to settle the case for the sum of $150,000.00. However, K-Mart rejected the offer and the case proceeded to trial.

On May 1, 1991, the jury rendered a verdict for Appellant, finding her damages to be $200,000.00. On May 10, K-Mart moved for a new trial or remittitur, and on May 13, the trial court signed the final judgment. The clerk recorded the judgment in the official records on May 15, 1991. The final judgment had been drafted by Appellant's counsel and expressly reserved jurisdiction "for the determination of costs and attorney's fees pursuant to the Plaintiff's Offer of Settlement dated June 28, 1989."

On June 3, 1991, the trial court denied K-Mart's motion for new trial. On June 20, 1991, Appellant filed her motion for costs and attorney's fees under section 45.061(2) pursuant to her offer of settlement. No action was taken on this motion pending this Court's consideration of K-Mart's appeal, which was filed on June 27, 1991. On June 8, 1992, we affirmed the final judgment. Thereafter, Appellant scheduled a hearing on her motion for costs and fees.

On January 27, 1993, the trial court entered an order awarding costs in favor of Appellant, but denying her motion for an award of attorney's fees. In doing so, the trial court ruled that section 45.061 requires that a motion for fees by the offeror of a settlement must be made within 30 days after the "entry of judgment." The court noted that the phrase "entry of judgment" is not defined in the statute, but observed that "[a]t common law and under the Florida Rules of Civil Procedure, entry of judgment means the recording of the judgment in the Court's Official Record," citing to Casto v. Casto, 404 So.2d 1046 (Fla.1981). Because the judgment was recorded by the clerk on May 15, 1991, and Appellant's motion was not filed until June 20, 1991, the court concluded that Appellant's motion was not timely and that the untimely filing of the motion deprived the court of jurisdiction to hear the matter. The court also found that Appellant had presented no direct authority allowing it to grant an extension of the 30-day filing period; and, because it ruled that section 45.061 "is in abrogation of the common law regarding the award of attorney's fees," the court strictly construed the statute according to its plain meaning as unambiguously providing for filing within 30 days of the entry of the judgment.

Appellant moved for rehearing, arguing that the trial court had retained jurisdiction at the time of the entry of the final judgment specifically for the purpose of determining costs and fees pursuant to her offer of settlement. Appellant maintained that the court's reservation of jurisdiction entitled her to consideration of her motion for fees on its merits. However, in its order denying Appellant's motion for rehearing, the court held that its reservation of jurisdiction in the final judgment did not stay the running of the 30 days provided for in section 45.061.

Appellant's primary argument on appeal is that the trial court erred in ruling that only the written motion filed by her on June 19, 1991, satisfied the 30-day filing requirement of section 45.061. Appellant submits that it was sufficient for her simply to notify the trial court of her intent to pursue an award of fees, which she did by including the "reservation of jurisdiction" language in the final judgment, thereby eliminating the necessity that she specifically seek a determination of the amount to which she claimed entitlement within the 30-day time period specified in the statute. Appellant maintains that because the legislature's intent behind the enactment of section 45.061 was to encourage settlement as a means of reducing litigation expenses, the statute qualifies as a remedial statute that should be liberally construed in order to achieve its laudable objective, citing to Young v. Altenhaus, 448 So.2d 1039 (Fla. 3d DCA 1983), quashed on other grounds, 472 So.2d 1152 (Fla.1985). Relying on rule 1.100(b), Florida Rules of Civil Procedure, Appellant also urges that under Florida law, motions need not meet any rigid requirement as to form, and need not be set forth in writing when they are made in the presence of the court and opposing counsel. Instead, Appellant argues that the reservation of jurisdiction provision specifically recognized Appellant's claim for fees and the need for a ruling thereon.

Appellant further argues that even assuming the reservation of jurisdiction itself could not satisfy the requirement of a motion, the trial court nonetheless erred in failing to recognize that the reservation of jurisdiction at least served to extend the time for making such a motion. It is Appellant's position that the court was incorrect in stating that there was no direct authority permitting it to extend the filing period, since rule 1.090(b) authorizes a trial court to enlarge the time for performing certain acts under the rules in specified circumstances. Appellant maintains that the procedural aspects of section 45.061 were preempted by rule 1.442, Florida Rules of Civil Procedure, see Leapai v. Milton, 595 So.2d 12 (Fla.1992), and that the time period for filing a motion for fees based on an unreasonable rejection of an offer of settlement is procedural, governed by procedural rules, and thus capable of being extended pursuant to rule 1.090(b).

Finally, Appellant argues that the reservation of jurisdiction led her to believe that no written motion for fees was necessary, and, therefore, the reservation language must be deemed to have effectively extended the time for filing the motion. Appellant suggests that the reservation of jurisdiction at least served to excuse her failure to file a separate motion for fees within 30 days and served as a proper predicate for the court's entry of a separate order extending the time for seeking fees on the basis of excusable neglect. In that regard, Appellant points out that she did in fact file such a motion only six days after expiration of the 30-day period and, further, that for much of the time between entry of the judgment and the filing of the motion, K-Mart's motion for new trial was pending. Appellant submits that this motion had the effect of tolling the finality of the judgment which, in fact, did not become final until the motion was denied on June 3, 1991. Thus, Appellant reasons that no significant purpose could have been served by moving for fees prior to disposition of K-Mart's motion for new trial, and no harm was caused by her failure to file the motion during that period.

Section 45.061(2) provides as follows:

(2) If, upon a motion by an offeror within 30 days after the entry of judgment, the court determines that an offer was rejected unreasonably, resulting in unnecessary delay and needless increase in the cost of litigation, it may impose an appropriate sanction upon the offeree....

The language of the statute is unambiguous. By its express terms, the motion is to be filed within 30 days from the entry of judgment. We agree with the trial court, "entry of judgment" means the recording of the judgment in the court's official record. See Casto v. Casto. Since it is undisputed that the clerk of the court recorded the...