Gulf Landings Ass'n, Inc. v. Hershberger
| Decision Date | 23 May 2003 |
| Docket Number | No. 2D02-4125.,2D02-4125. |
| Citation | 845 So.2d 344 |
| Parties | GULF LANDINGS ASSOCIATION, INC., Appellant, v. Alan J. HERSHBERGER, Appellee. |
| Court | Florida District Court of Appeals |
Steven H. Mezer and Stephen B. French of Bush Ross Gardner Warren & Rudy, P.A., Tampa, for Appellant.
Russell G. Marlowe of Davis & Marlowe, P.A., New Port Richey, for Appellee.
Gulf Landings Association, Inc., appeals an order granting attorneys' fees and costs to Alan J. Hershberger. We must reverse this order because Mr. Hershberger did not file a timely motion for attorneys' fees and costs pursuant to Florida Rule of Civil Procedure 1.525.
Mr. Hershberger filed a complaint for declaratory relief against Gulf Landings, a homeowners' association. He sought a determination that a cover he had installed on his boat lift did not violate a prohibition against "covered docks" contained in a declaration of covenants and restrictions that governed his property. In his complaint, Mr. Hershberger alleged a claim for attorneys' fees under the provisions of the declaration of covenants and restrictions. Gulf Landings answered and counterclaimed, seeking an order requiring Mr. Hershberger to remove the cover. It too requested an award of attorneys' fees pursuant to the declaration of covenants and restrictions and pursuant to section 720.305, Florida Statutes (2001). In his answer to the counterclaim, Mr. Hershberger asserted section 720.305 as an additional ground for his claim for attorneys' fees.1
On January 18, 2002, after a final hearing, the trial court rendered a final declaratory judgment in favor of Mr. Hershberger. In that judgment, the trial court reserved jurisdiction to determine both entitlement to and the amount of attorneys' fees and costs awardable to Mr. Hershberger.
Prior to the entry of the judgment but after the trial court had orally pronounced its ruling, counsel for Mr. Hershberger provided Gulf Landings with his itemized billing statements and asked whether a hearing would be required to determine the issue of attorneys' fees. The matter was not amicably resolved and, within a week after the entry of the judgment, Mr. Hershberger served a notice of hearing scheduling a final hearing on the issue of attorneys' fees for April 8, 2002.
Gulf Landings waited until April 4, 2002, to file a memorandum in opposition to the claim. The memorandum pointed out that Mr. Hershberger had failed to file a motion for attorneys' fees and costs within the 30 days allotted by Florida Rule of Civil Procedure 1.525. Indeed, it is undisputed that Mr. Hershberger never filed a postjudgment motion for attorneys' fees. Gulf Landings argued that no award of fees or costs could be entered without a timely motion.
The trial court granted Mr. Hershberger's claim for attorneys' fees in the amount of $4,300.00 and awarded costs of $177.50. The trial court concluded that Mr. Hershberger did not need to comply with rule 1.525 because the trial court had specifically reserved jurisdiction in the final judgment to resolve the issues necessary to award attorneys' fees.
With some reluctance, we must reverse this order. Although Gulf Landings was aware of the claim for attorneys' fees and the legal basis for the request within one week of the final judgment, and therefore could not have been prejudiced by the procedures used by both Mr. Hershberger and the trial court, rule 1.525 was created to establish a bright-line rule governing the timeliness of posttrial motions for costs and attorneys' fees. See Diaz v. Bowen, 832 So.2d 200, 201 (Fla. 2d DCA 2002)
. That rule, which went into effect on January 1, 2001, before the complaint in this case was filed, states:
Any party seeking a judgment taxing costs, attorneys' fees, or both shall serve a motion within 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal.
Fla. R. Civ. P. 1.525; Amendments to Florida Rules of Civil Procedure, 773 So.2d 1098 (Fla.2000).
It is no longer enough for parties to plead a basis for fees in their pretrial pleadings. Likewise, it is no longer sufficient for a trial court to "reserve jurisdiction" with a final judgment to resolve the issues of attorneys' fees and costs. These...
To continue reading
Request your trial
-
Smith v. Smith
...cannot serve to extend the 30-day period established in rule 1.525. See Mook, 873 So.2d at 364; Gulf Landings Ass'n, Inc. v. Hershberger, 845 So.2d 344, 345-46 (Fla. 2d DCA 2003); Wentworth v. Johnson, 845 So.2d 296, 299 (Fla. 5th DCA 2003). Although this court has agreed with the Second an......
-
Saia Motor Freight Line, Inc. v. Reid
...the trial court properly awarded costs to the co-personal representatives. We also certify conflict with Gulf Landings Ass'n, Inc. v. Hershberger, 845 So.2d 344 (Fla. 2d DCA 2003), and Wentworth v. Johnson, 845 So.2d 296 (Fla. 5th DCA Order on attorney's fees reversed; order on costs affirm......
-
State Farm Mut. Auto. v. Stylianoudakis
...of Transp. v. Southtrust Bank, 886 So.2d 393 (Fla. 1st DCA 2004), review denied, 900 So.2d 553 (Fla.2005); Gulf Landings Ass'n v. Hershberger, 845 So.2d 344 (Fla. 2d DCA 2003); Wentworth v. Johnson, 845 So.2d 296 (Fla. 5th DCA 2003). In resolving the conflict, the supreme court determined t......
-
Lyn v. Lyn, 2D03-4393.
...a motion within 30 days after filing of the judgment." See Mook v. Mook, 873 So.2d 363 (Fla. 2d DCA 2004); Gulf Landings Ass'n v. Hershberger, 845 So.2d 344 (Fla. 2d DCA 2003); Diaz v. Bowen, 832 So.2d 200 (Fla. 2d DCA 2002). In each of these cases and in the present case, it was no surpris......
-
Moving for attorneys' fees and costs: do it right and do it on time.
...a strict interpretation of the language of Rule 1.525 with regard to this issue. In Gulf Landings Association, Inc. v. Hershberger, 845 So. 2d 344 (Fla. 2d DCA 2003), the trial court reserved jurisdiction over the issue of attorneys' fees in a final declaratory judgment rendered in favor of......