HOWARD BERNSTEIN, APPELLANT,
v.
ROBERT G. BERRIN, APPELLEE
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The Florida Second District Court of Appeal receded from prior precedent holding that trial courts lose jurisdiction to award attorney's fees upon filing of a notice of appeal. The court held that trial courts retain jurisdiction to award attorney's fees after a notice of appeal has been filed, making relinquishment of jurisdiction unnecessary.
The filing of a notice of appeal does not divest the trial court of jurisdiction to award attorney's fees. The proper test is whether the trial court is proceeding in a matter that affects the subject matter on appeal, not whether it is proceeding in matters related to the final judgment.
[1] The filing of a notice of appeal from a final judgment does not divest the trial court of jurisdiction to enter attorney's fee orders.
[2] A post-judgment attorney's fee order is a final order for appeal purposes, separate from the final judgment.
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Join FLexlaw to unlock all legal intelligence“the filing of the notice of appeal does not divest the trial court of jurisdiction to enter attorney's fee orders in the same case”
Establishes the core holding that trial courts retain jurisdiction over attorney's fees post-appeal
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Join FLexlaw to unlock all legal intelligenceA trial court had reserved jurisdiction to determine attorney's fees in a final judgment. After a notice of appeal was filed in the case, the question…
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ON MOTION TO RELINQUISH JURISDICTION TO DETERMINE ATTORNEY’S FEES
PER CURIAM.
In Wilson Realty, Inc. v. David, 369 So. 2d 75 (Fla. 2d DCA 1979) this court held that after a notice of appeal from a final judgment a trial judge loses jurisdiction to award attorney’s fees pursuant to a reservation of jurisdiction in the final judgment. See, also, United Services Automobile Association v. Smolensky, 391 So. 2d 355 (Fla. 2d DCA 1980) and Judge v. Judge, 370 So. 2d 833 (Fla. 2d DCA 1979). We take this opportunity to recede from that aspect of Wilson, Smolensky, and Judge. Experience and cases subsequent to Wilson have now convinced us that the better conclusion is that the filing of the notice of appeal does not divest the trial court of jurisdiction to enter attorney’s fee orders in the same case.
It is now clear that not only is a judgment final without disposition of attorney’s fees, but the postjudgment attorney’s fee order is also a final order in itself for appeal purposes. See Hubert v. Division of Administration, 425 So. 2d 671 (Fla. 2d DCA 1983). If the final judgment in the case and the subsequent attorney’s fee or der are both appealable separately as final orders, an appeal of the former should not take away jurisdiction to rule on the latter. We agree with the reasoning of Bailey v. Bailey, 392 So. 2d 49 (Fla. 3d DCA 1981) that the test to determine loss of jurisdiction is not whether the trial court is proceeding in matters related to the final judgment. Rather, the proper test is whether the trial court is proceeding in a matter which affects the subject matter on appeal. Thus, Bailey held that the trial judge had jurisdiction to award attorney’s fees. See, also, Fernandez v. Alonso, 375 So. 2d 8 (Fla. 3d DCA 1979).
In Allen v. Estate of Dutton, 384 So. 2d 171 (Fla. 5th DCA 1980), the court held that when attorney’s fees are properly costs in a case, this constitutes an exception to Wilson and they may be awarded after a notice of appeal from the final judgment. We make no such distinction here but recede from Wilson and hold that the trial court does not lose jurisdiction to award any type of allowable attorney’s fees upon filing of the notice of appeal from the final judgment.
In view of our holding herein, relinquishment of jurisdiction for attorney’s fees is unnecessary and the motion is denied as moot.
DANAHY, C.J., and SCHEB, RYDER, CAMPBELL, SCHOONOVER, LEHAN, FRANK, HALL and THREADGILL, JJ., concur En Banc.
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Cited By (12 total)
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K.D. v. State, 779 So. 2d 468 (Fla. 2d DCA 2000)…ment. This judgment could be separately appealed. Cf. Ulrich v. Eaton Vance Distribs., Inc., 764 So. 2d 731 (Fla. 2d DCA 2000) (allowing separate final appeals of judgment and order awarding attorneys’ fees based upon judgment); Bernstein v. Berrin, 516 So. 2d 1042 (Fla. 2d DCA 1987) (en banc) (holding trial court retains jurisdiction to consider motion for attorneys’ fees despite filing of notice of appeal of final judgment). A sentence or disposition rendered at an earlier time could reserve jurisdiction, pe…
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Casavan v. Land O'Lakes Realty, 526 So. 2d 215 (Fla. 5th DCA 1988)…the trial court has jurisdiction to consider a motion for assessment of attorney’s fees subsequent to the entry of a final judgment, even after a notice of appeal from that judgment has been filed. We agree with the holding of Bernstein v. Berrin, 516 So. 2d 1042 (Fla. 2d DCA 1987), that the test to determine loss of jurisdiction is not whether the trial court is proceeding in matters related to the final judgment, but rather the proper [*216] test is whether the trial court is proceeding in a matter which a…
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Haskins v. City OF Fort Lauderdale, 898 So. 2d 1120 (Fla. 4th DCA 2005)…1241, 1243 (Fla.1986). Additionally, Florida courts have recognized that the filing of a notice of appeal from a final judgment “does not divest the trial court of jurisdiction to enter attorney’s fees orders in the same case.” Bernstein v. Berrin, 516 So. 2d 1042, 1042 (Fla. 2d DCA 1987). Therefore we hold that the trial court did not err in reserving jurisdiction to award attorney’s fees.1 Since we have ruled Plaintiffs claims are time-barred, we need not decide her other assignment of error. We find it to…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Carola D. Allen v. Est. of Ellen C. Dutton, 384 So. 2d 171 (Fla. 5th DCA 1980)
- Bailey v. Bailey, 392 So. 2d 49 (Fla. 3d DCA 1981)
- Wilson Realty, Inc. v. David, 369 So. 2d 75 (Fla. 2d DCA 1979)
- Hubert v. Division OF Administration, 425 So. 2d 671 (Fla. 2d DCA 1983)
- Desmond G. Judge v. Judge, 370 So. 2d 833 (Fla. 2d DCA 1979)
- Burger Chef Sys., Inc. v. Burger Chef OF Fla., Inc., 375 So. 2d 8 (Fla. 4th DCA 1979)
- United Servs. Auto. Ass'n v. Smolensky, 391 So. 2d 355 (Fla. 2d DCA 1980)