Spencer v. Barrow

• Decision Date: 08 March 2000
• Docket Number: No. 2D99-938.,2D99-938.
• Citation: Spencer v. Barrow, 752 So.2d 135 (Fla. App. 2000)
• Parties: Estle SPENCER and Iva Spencer, Appellants, v. Stacy L. BARROW and Connie J. Barrow, Appellees.
• Court: Florida District Court of Appeals

752 So.2d 135

Estle SPENCER and Iva Spencer, Appellants, v. Stacy L. BARROW and Connie J. Barrow, Appellees.

No. 2D99-938.

District Court of Appeal of Florida, Second District.

March 8, 2000.

Elizabeth K. Russo of Russo Appellate Firm, P.A., Miami, and Ramey, Ramey & Kampf, Tampa, for Appellants.

Louis K. Rosenbloum, P.A., Pensacola, and Dale Swope of Swope, Cardillo, P.A., Tampa, and Robert M. Austin, Tampa, for Appellees.

CAMPBELL, Judge.

Appellants, Estle Spencer and Iva Spencer, challenge the trial court order directing that they pay $144,000 in attorney's fees to appellees, Stacy L. Barrow and Connie J. Barrow. The $144,000 represented both trial court and appellate attorney's fees.

The sole issue on this appeal is whether the appellees' motion for their trial court attorney's fees was untimely under the provisions of Florida Rule of Civil Procedure 1.442(g) as amended effective January 1, 1997. We hold that appellees' motion for their trial court attorney's fees was untimely and reverse the order insofar as it awarded trial court attorney's fees.

In the trial court, appellants were defendants in an automobile negligence action in which appellees were the plaintiffs. Appellees filed a timely demand for judgment in the amount of $24,900, which appellants did not accept.

A jury trial resulted in a verdict for appellees on May 7, 1997 in the amount of $71,251. Appellants filed motions for new trial and for remittitur, which were denied. A final judgment in the net amount of $59,399 was entered for appellees on September 5, 1997. The final judgment reserved jurisdiction on the issue of attorney's fees. Appellees filed their first motion for trial court attorney's fees on September 10, 1997, five days after entry of the final judgment. Appellants challenged the final judgment, and this court affirmed that final judgment on October 7, 1998. See Spencer v. Barrow, 725 So.2d 1123 (Fla. 2d DCA 1998). This court also granted appellees' motion for appellate attorney's fees and directed that the amount of such appellate attorney's fees be set by the trial court.

Appellees' motion for trial court attorney's fees filed on September 10, 1997 was, under the express provisions of rule 1.442(g), clearly untimely because the return of the jury verdict on May 7, 1997 was more than thirty days prior to the filing of that motion for attorney's fees.

Rule 1.442(g), as amended effective January 1, 1997, provides as follows:

(g) Sanctions. Any party seeking sanctions pursuant to applicable Florida law, based on the failure of the proposal's recipient to accept a proposal, shall do so by service of an appropriate motion within 30 days after the entry of judgment in a nonjury action, the return of the verdict in a jury action, or the entry of a voluntary or involuntary dismissal. (Emphasis added).

Appellees argue that they should be excused for their late filing of the motion for trial court attorney's fees on several theories, none of which do we find persuasive. They argue that there was "confusion" as to the time requirements for the filing of their motion for fees because section 768.79(6)(a), Florida Statutes (1995), sets the time for such filing to be "within 30 days after the entry of judgment...." However, the time periods prescribed in statutes such as section 768.79 have long and clearly been held to be procedural. They are, therefore, subject to and governed by the Florida Rules of Civil Procedure and not by the statutory time requirements where the statute and pertinent rules of procedure are in conflict. See Gulliver Academy, Inc. v. Bodek, 694 So.2d 675 (Fla.1997).

Appellees also argue that because the final judgment of September 5, 1997 contained a reservation of jurisdiction in regard to attorney's fees, that reservation constituted an enlargement of time for appellees to pursue their entitlement to fees. Unfortunately, no motion for attorney's fees had been filed prior to the entry of the final judgment, and the final judgment of September 5, 1997 was itself more than thirty days after the jury verdict of May 7, 1997. The supreme court in Bodek (opinion issued February 6, 1997 and rehearing denied May 30, 1997) clearly holds that such a reservation of jurisdiction in a final judgment entered more than thirty days after the jury verdict, absent a showing of and finding by the trial court of excusable neglect, does not enlarge the time requirements of rule 1.442(6).

Appellees finally argue that their award of trial court attorney's fees is saved by their "Motion for Enlargement of Time for the Filing of Appellees' Motion to Tax Fees and Costs Against Appellants." That motion was not filed until December 18, 1997. The trial judge on February 17, 1998 entered an "Order Extending Time for the Filing of Appellees' Motion to Tax Fees and Costs." That order extending time contained a statement that "neither party has filed any affidavits, nor offered any testimony concerning the existence or absence of excusable neglect." While appellees' counsel argued in the trial court that "confusion" over the time requirements constituted excusable neglect, we are not so persuaded. Again, Bodek destroys the efficacy of appellees' argument and their reliance on the trial court's late extension of time.

As pointed out in Bodek, procedural time requirements governed by the Florida Rules of Civil Procedure may be enlarged under Florida Rule of Civil Procedure 1.090(b). Bodek also acknowledges that a timely "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's fees." Bodek, 694 So.2d at 677. The Bodek court also held that there need be no showing of excusable neglect in order to enlarge a time period by reservation of jurisdiction in the final judgment if the date of the final judgment is within the time requirements of the rule.

The holding in Bodek firmly shuts the door on appellees' claim by stating, in connection with the time requirements of rule 1.442(g):

Nevertheless

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