DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, APPELLANT,
v.
LEONARD CORDES, APPELLEE
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The court held that a statutory notice requirement for attorney's fees against a state agency was not waived and was timely asserted by the agency. Therefore, the award of attorney's fees was error.
Leonard Cordes sued the Department of Health and Rehabilitative Services to enforce a settlement agreement and obtained a judgment including damages a…
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PER CURIAM.
Leonard Cordes brought an action under section 120.69, Florida Statutes (1991), seeking to enforce a written settlement agreement he had with the Department of Health and Rehabilitative Services (the department). Cordes succeeded in obtaining a final judgment that awarded damages and attorney’s fees. On appeal, the department asserts error in various evidentiary rulings, in the trial court’s denial of the department’s motion for directed verdict, and in the award of attorney’s fees. With the exception of the attorney’s fee award, we reject the department’s contentions without elaboration.
Cordes included a claim for attorney’s fees in his petition for enforcement of agency action. Although attorney’s fees are recoverable in section 120.69 proceedings, a notice requirement is imposed upon those seeking recovery of attorney’s fees from the state or an agency. Thus, section 284.30, Florida Statutes (1991), provides in pertinent part:
A party to a suit in any court, to be entitled to have his attorney’s fees paid by the state or any of its agencies, must serve a copy of the pleading claiming the fees on the Department of Insurance; and thereafter the department shall be entitled to participate with the agency in the defense of the suit and any appeal thereof with respect to such fees.
We reject Cordes’ claim that this notification requirement was waived. Although the state may waive the requirement by failing to timely assert a lack of notice, see Florida Medical Center v. Department of Health and Rehabilitative Services, 511 So. 2d 677 (Fla. 1st DCA 1987), the department timely raised § 284.30 in its motion to strike Cordes’ claim for fees. Since Cordes failed to comply with the notice requirement, it was error for the trial court to award attorney’s fees. In all other respects, the trial court’s final judgment is affirmed.
AFFIRMED in part, REVERSED in part and REMANDED.
MINER, LAWRENCE and BENTON, JJ., concur.
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Goodman v. Martin Cnty. Health Dep't, 786 So. 2d 661 (Fla. 4th DCA 2001)…s of civil procedure to specifically allege noncompliance with section 284.30 in its answer. It could raise the issue for the first time in response to appellants’ post trial motion for attorney’s fees. See Dep’t of Health & Rehab. Servs. v. Cordes, 644 So. 2d 609, 610 (Fla. 1st DCA 1994) (holding that the state agency “timely raised § 284.30 in its motion to strike [appellee’s] claim for fees” even if raised for the first time after written settlement and judgment for attorney’s fees was entered). Under thes…
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Hale v. Dep't OF Revenue, 973 So. 2d 518 (Fla. 1st DCA 2007)…hronology of the litigation and addressed the argument of DOR that its motion to strike was timely filed, see Goodman v. Martin County Health Department, 786 So. 2d 661 (Fla. 4th DCA 2001), Department of Health and Rehabilitative Services v. Cordes, 644 So. 2d 609 (Fla. 1st DCA 1994), and Heredia v. Department of Highway Safety and Motor Vehicles, 547 So. 2d 1007 (Fla. 3d DCA 1989), and the Hales’ competing argument that DOR had waived the requirements of section 284.30 by failing to timely assert lack of not…1 / 2
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N.S. v. Dep't of Child. & Families, 119 So. 3d 558 (Fla. 5th DCA 2013)…r statutes. Hale v. Dep’t of Rev., 973 So. 2d 518, 521-22 (Fla. 1st DCA 2007) (holding that section 284.30’s notice requirement is a condition precedent for fees in action by taxpayer against DOR pursuant to section 213.015); Dep’t of HRS v. Cordes, 644 So. 2d 609, 610 (Fla. 1st DCA 1994) (holding that the notice requirement is a condition precedent for attorney’s fees from section 120.69 proceedings in action by plaintiff against state); Fla. Med. Ctr. v. Dep’t of HRS, 511 So. 2d 677 (Fla. 1st DCA 1987) (rec…
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- Fla. Med. Ctr. v. Dep't of Health & Rehabilitative Servs., 511 So. 2d 677 (Fla. 1st DCA 1987)