CHARLES MORAND, M.D., APPELLANT,
v.
JOHN T. STONEBURNER, III, ET UX., ET AL., APPELLEES
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Dr. Morand appealed a jury verdict judgment awarding damages to the Stoneburners, but filed his notice of appeal more than 30 days after the final judgment. The appellate court dismissed the appeal for lack of jurisdiction as untimely, but retained jurisdiction to award attorney's fees to the prevailing parties under Florida's medical malpractice statute.
The reservation of jurisdiction to award attorney's fees and costs does not render a judgment non-final for appeal purposes. A judgment awarding money damages is final and appealable even if the trial court later awards fees separately. An appellate court has separate and distinct jurisdiction to determine its own jurisdiction and award attorney's fees ancillary to that determination, even when it dismisses an appeal for lack of jurisdiction over the merits.
[1] A reservation of jurisdiction to award attorney's fees and costs does not affect the finality of a judgment for purposes of appeal.
[2] A judgment awarding attorney's fees and costs entered subsequent to a final judgment is itself a final appealable order.
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Join FLexlaw to unlock all legal intelligence“The reservation of jurisdiction to award attorney's fees and costs at a later time does not affect the finality of the judgment itself for purposes of appeal.”
Establishes that a judgment is final and appealable even though the trial court retains jurisdiction to award fees later.
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Join FLexlaw to unlock all legal intelligenceA jury verdict rendered a final judgment awarding money damages to appellees (Stoneburner and spouse). The trial court's judgment reserved jurisdictio…
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ON MOTION TO DISMISS APPEAL
ORFINGER, Judge.
Appellees move to dismiss the appeal as being untimely filed. We reject appellant’s contention that because the final judgment which awards money damages to appellees based on a jury verdict reserved jurisdiction to award attorney’s fees and costs, the judgment is really not “final,” and thus the notice of appeal is premature. The reservation of jurisdiction to award attorney’s fees and costs at a later time does not affect the finality of the judgment itself for purposes of appeal. General Accident Fire & Life Assurance Corporation, Ltd. v. Kellin, 391 So. 2d 305 (Fla. 4th DCA 1980). A subsequently entered judgment awarding attorney’s fees and costs is itself a final appealable order. Altamonte Hitch and Trailer Service, Inc. v. U-Haul Company of Eastern Florida, 483 So. 2d 852 (Fla. 5th DCA 1986). Because the notice of appeal on this case was filed more than 30 days following the rendition of the final judgment, we have no jurisdiction of the appeal.
APPEAL DISMISSED.
UPCHURCH, C.J., and DAUKSCH, J., concur. ON MOTION FOR ATTORNEYS FEES ON APPEAL
UPCHURCH, Chief Judge.
This appeal was dismissed as untimely per opinion filed August 27, 1987, page 270.
Appellees have now filed a motion for fees on appeal pursuant to section 768.-56, Florida Statutes (1983), which provided that the prevailing party shall be entitled to an award of attorneys fees for time spent on cases involving allegations of medical malpractice. The question presented by this motion is whether this court has jurisdiction to award fees when it lacks jurisdiction to hear the plenary appeal.
There can be no question that appellees “prevailed” in this court because the appeal has been dismissed. We believe, however, that this court’s jurisdiction to award fees in connection with the dismissal of an appeal is separate and apart from its jurisdiction to hear the merits of a particular case. We note a line of cases represented by National Union Fire Ins. Co. v. Brown, 211 So. 2d 13 (Fla.1968) and State Farm Mutual Automobile Ins. Co. v. Carrico, 211 So. 2d 14 (Fla.1968), have upheld the recovery of attorney’s fees from insurance carriers by prevailing insureds, where the carrier’s petition for certiorari review is denied in the supreme court for lack of jurisdiction. It would seem that these cases are in accord with the principle that a court has jurisdiction to determine its jurisdiction, 13 Fla.Jur.2d, Courts and Judges, § 28, and that ancillary to such determination can award attorney’s fees where authorized by statute.
Therefore, the motion for fees is granted. We remand to the trial court to determine a reasonable amount for the services of appellees’ attorneys.
DAUKSCH and ORFINGER, JJ., concur.
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Casavan v. Land O'Lakes Realty, 526 So. 2d 215 (Fla. 5th DCA 1988)…ey v. Bailey, 392 So. 2d 49 (Fla. 3d DCA 1981). Cf. Campbell v. Campbell, 436 So. 2d 374 (Fla. 5th DCA 1983). Since an order awarding attorney’s fees after entry of final judgment is a final appealable order, Bernstein, supra; Morand v. Stoneburner, 516 So. 2d 270 (Fla. 5th DCA 1987), there is no reason why an appeal of the final judgment should divest the trial court of jurisdiction to later rule on the request for attorney’s fees. MOTION DENIED as MOOT. SHARP, C.J., and DANIEL, J., concur.…
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Siegel v. Siegel, 564 So. 2d 226 (Fla. 5th DCA 1990)…ctoria. These sums were set in the supplemental final judgment, which was timely appealed. We agree with appellant that the appeal is timely. See Clearwater Federal Savings and Loan Ass’n. v. Sampson, 336 So. 2d 78 (Fla.1976); Morand v. Stoneburner, 516 So. 2d 270 (Fla. 5th DCA 1987), rev. denied, 525 So. 2d 879 (Fla. 1988). . See Pirino v. Pirino, 549 So. 2d 219 (Fla. 5th DCA 1989). . Compare, e.g., Driscoll v. Driscoll, 547 So. 2d 1247 (Fla. 4th DCA 1989) (court abused its discretion in failing to award f…
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HSBC Bank USA v. Buset, 216 So. 3d 701 (Fla. 3d DCA 2017)…athanson v. Rishyko, 140 So. 3d 1054, 1055 (Fla. 4th DCA 2014) (affirming trial court’s final judgment denying counter-petition notwithstanding trial court’s reservation of jurisdiction to impose sanctions for civil contempt); Morand v. Stoneburner, 516 So. 2d 270, 271 (Fla. 5th DCA 1987) (finding that reservation of jurisdiction to award attorney’s fees and costs does not affect finality of judgment and appeal filed more than 30 days following rendition of final judgment was untimely); Prudential-Bache Secur…
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Altamonte Hitch & Trailer Serv., Inc. v. U-Haul Co. OF E. Fla., 483 So. 2d 852 (Fla. 5th DCA 1986)
- Gen. Accident Fire & Life Assurance Corp., Ltd. v. Kellin, 391 So. 2d 305 (Fla. 4th DCA 1980)
- Tanner v. Tanner, 391 So. 2d 305 (Fla. 4th DCA 1980)
- State Farm Mut. Auto. Ins. Co. v. Carrico, 211 So. 2d 14 (Fla. 1968)
- Nat'l Union Fire Ins. Co. OF Pittsburgh v. Brown, 211 So. 2d 13 (Fla. 1968)