GEORGINA SWORTZ, APPELLANT,
v.
SOUTHERN RAINBOW CORP., ETC., ET AL., APPELLEES
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A landlord appealed an attorney's fees award in a wrongful eviction case, arguing the trial court lacked jurisdiction to award fees under chapter 83 because it only reserved jurisdiction under section 57.105, and that the fee calculation improperly applied a contingency multiplier without adequate findings.
The order authorizing attorney's fees under chapter 83 was reversed because the motion was untimely filed two months after final judgment, depriving the court of jurisdiction. The award under section 57.105 was vacated and remanded because the trial court improperly applied a contingency risk multiplier without the requisite specific findings, and such a multiplier cannot be applied to a case so patently frivolous that it supports a section 57.105 recovery.
[1] A motion for attorney's fees filed after the final judgment is untimely and the trial court lacks jurisdiction to impose the fee.
[2] A contingency risk multiplier may not be applied to attorney's fees awarded under section 57.105, Florida Statutes, when the case is patently frivolous and counsel's fee…
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Join FLexlaw to unlock all legal intelligence“Since the motion for attorney's fees under chapter 83 of the Florida Statutes was filed two months after the final judgment was entered, the motion was untimely and the trial court lacked jurisdiction to impose the fee pursuant to section 83.48, Florida Statutes (1991).”
Establishes the jurisdictional basis for reversing the chapter 83 fee award based on untimeliness
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Join FLexlaw to unlock all legal intelligenceA tenant filed a wrongful eviction action against the landlord. The landlord counterclaimed that chapter 83 landlord-tenant laws did not apply because…
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PER CURIAM.
On Motion for Rehearing Granted
The tenant, appellee, filed an action for wrongful eviction in the trial court. The landlord, appellant, counterclaimed alleging that the landlord-tenant laws of chapter 83, Florida Statutes (1991) did not apply because the appellee was a transient occupant leasing under a temporary occupancy agreement. After a non-jury trial, final judgment was entered in the tenant’s favor. The court noted that there was a complete absence of justiciable issue of either law or fact in the counterclaim, and reserved jurisdiction to award attorney’s fees pursuant to section 57.105, Florida Statutes (1991).
Appellant moves for a rehearing claiming that it was error for the court to award attorney’s fees pursuant to section 83.48, Florida Statutes (1991), when the court only reserved jurisdiction in its final judgment to award fees pursuant to section 57.105, Florida Statutes (1991). Since the motion for attorney’s fees under chapter 83 of the Florida Statutes was filed two months after the final judgment was entered, the motion was untimely and the trial court lacked jurisdiction to impose the fee pursuant to section 83.48, Florida Statutes (1991). Stockman v. Downs, 573 So. 2d 835 (Fla.1991).
Additionally, appellant correctly points out that in determining the amount of attorney’s fees to award, the trial court employed a contingency risk multiplier without making the requisite specific findings to support such application. See Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla.1985), modified on other grounds, Standard Guar. Ins. Co. v. Quanstrom, 555 So. 2d 828 (Fla.1990); Atlantis Bldg. B Condominium Ass’n v. Skawski, 544 So. 2d 1069, 1070 (Fla. 4th DCA 1989); Travelers Indemnity Co. v. Sotolongo, 513 So. 2d 1384 (Fla. 3d DCA 1987). However, when a case is so patently frivolous as to cause counsel to represent his or her client for a fee that is solely contingent upon a section 57.105 recovery, it cannot reasonably be treated as involving a risk that would support a multiplier. Transflorida Bank v. Miller, 576 So. 2d 752, 753 (Fla. 4th DCA 1991). As a result, the trial court may not, on remand, apply a contingency risk multiplier in computing the section 57.105 attorney’s fees.
For the foregoing reasons, the order authorizing attorney’s fees, pursuant to chapter 83, is reversed; the award entered pursuant to section 57.105, Florida Statutes (1991) is vacated and remanded for further proceedings.
Appellant’s other points are without merit.
Reversed and vacated with directions.
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BAL BAY Realty, Ltd. v. Pepsomers Corp., 833 So. 2d 320 (Fla. 4th DCA 2003)…dering a trial court’s determination as to the timeliness of a post-judgment motion for attorney’s fees have apparently reviewed the order for legal error, rather than an abuse of discretion. See Falls; USF & G; McAskill; Swortz v. S. Rainbow Corp., 603 So. 2d 107 (Fla. 3d DCA 1992); see also Wunderle v. Fruits, Nuts & Bananas, Inc., 715 So. 2d 325 (Fla. 2d DCA 1998). Notwithstanding, whether reviewed de novo or for an abuse of discretion, the order on JBE’s motion for attorney’s fees should have been denied…
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Laguna Palms Props. Ltd. v. Jolene Long, 622 So. 2d 556 (Fla. 3d DCA 1993)…plaintiff. Therefore, there is no basis for defendant to claim fees. II. If in fact the action was based upon F.S. 723.058, defendant failed to seek fees in its answer. Stockman v. Downs, 573 So. 2d 835 (Fla.1991); Swortz v. Southern Rainbow Corp., 603 So. 2d 107 (Fla. 3d DCA 1992). We agree with the trial court, and further find no additional factors such as acquiescence or misleading conduct that raise equitable considerations which might support an exception to the pleading requirement relied upon below.…
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J.P. Morgan Mortg. Acquisition Corp. v. Gideon Golden, 98 So. 3d 220 (Fla. 2d DCA 2012)…'s fees to the other party when that party prevails.” . We note that if the trial court had awarded the attorney’s fees as a sanction pursuant to section 57.105(1), the use of the multiplier would have been improper. See Swortz v. S. Rainbow Corp., 603 So. 2d 107, 108 (Fla. 3d DCA 1992).…
Authorities Cited
- Fla. Patient's Comp. Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985)
- Standard Guar. Ins. Co. v. Quanstrom, 555 So. 2d 828 (Fla. 1990)
- Stockman v. Downs, 573 So. 2d 835 (Fla. 1991)
- Travelers Indem. Co. v. Sotolongo, 513 So. 2d 1384 (Fla. 3d DCA 1987)
- Transflorida Bank v. Miller, 576 So. 2d 752 (Fla. 4th DCA 1991)
- Atlantis Bldg. B Condo. Ass'n, Inc. v. Skawski, 544 So. 2d 1069 (Fla. 4th DCA 1989)