43
Fla. L. Weekly D366a
Fla. L. Weekly D366a
Attorney’s
fees — Proposal for settlement — No error in denying motion for trial level
attorney’s fees where motions were served more than 30 days after entry of
judgment — Because award of appellate attorney’s fees was not dependent upon
entitlement to trial level attorney fees, on remand trial court to determine
entitlement to and, if appropriate, the amount of appellate attorney’s fees
fees — Proposal for settlement — No error in denying motion for trial level
attorney’s fees where motions were served more than 30 days after entry of
judgment — Because award of appellate attorney’s fees was not dependent upon
entitlement to trial level attorney fees, on remand trial court to determine
entitlement to and, if appropriate, the amount of appellate attorney’s fees
JOHN A. CATALO and CATALO APPRAISAL
& REALTY, INC., Appellants, v. LLANO FINANCING GROUP, LLC, Appellee. 4th
District. Case No. 4D16-4348. February 14, 2018. Appeal from the Circuit Court
for the Fifteenth Judicial Circuit; Palm Beach County; Cymonie S. Rowe, Judge;
L.T. Case No. 50-2015-CA-008897-XXXX-MB-AN. Counsel: Roy W. Jordan, Jr. of Roy
W. Jordan, P.A., West Palm Beach, for appellants. Robert J. Hauser of Pankauski
Hauser PLLC, West Palm Beach, for appellee.
& REALTY, INC., Appellants, v. LLANO FINANCING GROUP, LLC, Appellee. 4th
District. Case No. 4D16-4348. February 14, 2018. Appeal from the Circuit Court
for the Fifteenth Judicial Circuit; Palm Beach County; Cymonie S. Rowe, Judge;
L.T. Case No. 50-2015-CA-008897-XXXX-MB-AN. Counsel: Roy W. Jordan, Jr. of Roy
W. Jordan, P.A., West Palm Beach, for appellants. Robert J. Hauser of Pankauski
Hauser PLLC, West Palm Beach, for appellee.
(GROSS, J.) This is an appeal from
an order denying attorneys’ fees based on a proposal for settlement filed by
the defendants. Due to the untimeliness of appellants’ motions for attorneys’
fees in the circuit court, we affirm in part. We reverse and remand as to appellate
attorneys’ fees, which were not dependent on an award of fees at the trial
court level.
an order denying attorneys’ fees based on a proposal for settlement filed by
the defendants. Due to the untimeliness of appellants’ motions for attorneys’
fees in the circuit court, we affirm in part. We reverse and remand as to appellate
attorneys’ fees, which were not dependent on an award of fees at the trial
court level.
The circuit court originally
dismissed the case with prejudice on February 25, 2016. The court later
determined that the order of dismissal was not a final order and entered a
second order of dismissal on May 13, 2016. Appellee/plaintiff appealed the
second order of dismissal; this court dismissed the appeal for lack of
jurisdiction, ruling that the February 25 order was a final order and that the
plaintiff failed to timely move for rehearing, so the appeal was untimely. We
also granted appellate attorneys’ fees “conditioned on the trial court
determining that [appellants/defendants] are entitled to fees under section
768.79, Florida Statutes, and, if so, to set the amount of the attorneys’ fees
to be awarded for this appellate case.”
dismissed the case with prejudice on February 25, 2016. The court later
determined that the order of dismissal was not a final order and entered a
second order of dismissal on May 13, 2016. Appellee/plaintiff appealed the
second order of dismissal; this court dismissed the appeal for lack of
jurisdiction, ruling that the February 25 order was a final order and that the
plaintiff failed to timely move for rehearing, so the appeal was untimely. We
also granted appellate attorneys’ fees “conditioned on the trial court
determining that [appellants/defendants] are entitled to fees under section
768.79, Florida Statutes, and, if so, to set the amount of the attorneys’ fees
to be awarded for this appellate case.”
Appellants’ first motion for fees
was filed on April 22, 2016, more than 30 days after the February 25 order of
dismissal. A second motion for fees was filed on May 13, 2016, the same day
that the second order of dismissal issued.
was filed on April 22, 2016, more than 30 days after the February 25 order of
dismissal. A second motion for fees was filed on May 13, 2016, the same day
that the second order of dismissal issued.
The circuit court took up the issue
of appellants’ entitlement to attorneys’ fees and held a hearing. The court
ultimately denied all attorneys’ fees due to problems with service of the
motions.
of appellants’ entitlement to attorneys’ fees and held a hearing. The court
ultimately denied all attorneys’ fees due to problems with service of the
motions.
We do not reach the issue of the
propriety of the service because we affirm the denial of trial level attorneys’
fees under the tipsy coachman rule. “Under the tipsy coachman rule, ‘if a trial
court reaches the right result, but for the wrong reasons, it will be upheld if
there is any basis which would support judgment in the record.’ ” Bueno v.
Workman, 20 So. 3d 993, 998 (Fla. 4th DCA 2009) (quoting Dade Cty. Sch.
Bd. v. Radio Station WQBA, 731 So. 2d 638, 644 (Fla. 1999)).
propriety of the service because we affirm the denial of trial level attorneys’
fees under the tipsy coachman rule. “Under the tipsy coachman rule, ‘if a trial
court reaches the right result, but for the wrong reasons, it will be upheld if
there is any basis which would support judgment in the record.’ ” Bueno v.
Workman, 20 So. 3d 993, 998 (Fla. 4th DCA 2009) (quoting Dade Cty. Sch.
Bd. v. Radio Station WQBA, 731 So. 2d 638, 644 (Fla. 1999)).
Pursuant to Florida Rule of Civil
Procedure 1.525, a motion for attorneys’ fees must be served “no later than 30
days after filing of the judgment, including a judgment of dismissal.” See
also Swift v. Wilcox, 924 So. 2d 885, 886 (Fla. 4th DCA 2006), aff’d
Barco v. Sch. Bd. of Pinellas Cty., 975 So. 2d 1116, 1124 (Fla. 2008).
Additionally, section 768.79, Florida Statutes, requires the party seeking fees
pursuant to an offer of judgment to file its motion for attorneys’ fees within
30 days after the entry of judgment or after voluntary or involuntary dismissal.
See § 768.79(6), Fla. Stat. (2016) (“Upon motion made by the offeror
within 30 days after the entry of judgment or after voluntary or involuntary
dismissal . . . .”).
Procedure 1.525, a motion for attorneys’ fees must be served “no later than 30
days after filing of the judgment, including a judgment of dismissal.” See
also Swift v. Wilcox, 924 So. 2d 885, 886 (Fla. 4th DCA 2006), aff’d
Barco v. Sch. Bd. of Pinellas Cty., 975 So. 2d 1116, 1124 (Fla. 2008).
Additionally, section 768.79, Florida Statutes, requires the party seeking fees
pursuant to an offer of judgment to file its motion for attorneys’ fees within
30 days after the entry of judgment or after voluntary or involuntary dismissal.
See § 768.79(6), Fla. Stat. (2016) (“Upon motion made by the offeror
within 30 days after the entry of judgment or after voluntary or involuntary
dismissal . . . .”).
In this case, the April 22 and May
13 motions were served after the 30-day time limit from the operative February
25 dismissal, so they were untimely.
13 motions were served after the 30-day time limit from the operative February
25 dismissal, so they were untimely.
We agree with appellants that our
award of appellate attorneys’ fees was not dependent upon their
entitlement to trial level attorneys’ fees. See Disney v. Vaughen, 804
So. 2d 581, 583 (Fla. 5th DCA 2002) (rejecting “Vaughen’s argument that
obtaining a ruling on a motion for trial attorney’s fees in the trial court is
necessary before a party may obtain appellate attorney’s fees.”); Spencer v.
Barrow, 752 So. 2d 135, 138 (Fla. 2d DCA 2000).
award of appellate attorneys’ fees was not dependent upon their
entitlement to trial level attorneys’ fees. See Disney v. Vaughen, 804
So. 2d 581, 583 (Fla. 5th DCA 2002) (rejecting “Vaughen’s argument that
obtaining a ruling on a motion for trial attorney’s fees in the trial court is
necessary before a party may obtain appellate attorney’s fees.”); Spencer v.
Barrow, 752 So. 2d 135, 138 (Fla. 2d DCA 2000).
We therefore reverse the denial of
appellate attorneys’ fees and remand to the circuit court to determine
entitlement and, if appropriate, the amount. We note that in the first appeal,
little was required of the appellants (appellees in the first appeal). No
briefs were filed and appellants’ filings were few. (FORST and KUNTZ, JJ.,
concur.)
appellate attorneys’ fees and remand to the circuit court to determine
entitlement and, if appropriate, the amount. We note that in the first appeal,
little was required of the appellants (appellees in the first appeal). No
briefs were filed and appellants’ filings were few. (FORST and KUNTZ, JJ.,
concur.)
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