MCASKILL PUBLICATIONS, INC., A FLORIDA CORPORATION, PETITIONER,
v.
KENO BROTHERS JEWELERS, INC., A FLORIDA CORPORATION, D/B/A KENO BROTHERS JEWELERS, RESPONDENT

Fla. 4th DCA | 1994-12-21
No. 94-2251
POLEN, J., concurs., GUNTHER, J., dissents without opinion.
647 So. 2d 1012 Florida District Court of Appeal, Fourth District (1994) Caution
Cited by 23 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.


Holding

A party must plead entitlement to attorney's fees and present proof within a reasonable time after judgment; post-judgment motions filed unreasonably late are generally denied.


Headnotes

[1] A party must plead entitlement to attorney's fees, whether statutory or contractual, unless there is acquiescence or waiver by the opposing party.

[2] A party seeking attorney's fees must move the trial court for same and present proof of fees within a reasonable time after the final judgment.

Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

Respondent sought attorney's fees after prevailing on the merits in county court, but filed motions in the appellate circuit court after the county co…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
GLICKSTEIN, Judge.

GLICKSTEIN, Judge.

We grant the petition for certiorari and remand to the circuit court, in its appellate capacity, with direction to reverse the county court’s supplemental final judgment which awarded an attorney’s fee to respondent.

We do not know if respondent pled in the county court its entitlement to an attorney’s fee prior to final judgment, there being no such pleading in either party’s appendix prior to the February, 1992 final judgment. Stockman v. Downs, 573 So. 2d 835, 837, 838 (Fla.1991), requires that a party plead entitlement to an attorney’s fee, whether the basis of the fee is statutory or contractual, unless there is acquiescence or waiver by the other party. However, even if we were to assume for the purpose of discussion that such entitlement was pled, Stockman also tells us that it was then necessary for the party seeking the attorney’s fee to move the trial court for same and present proof of fees “within a reasonable time” after the final judgment. Id. at 838.

As best we can determine from the appendix to the petition, respondent never filed a motion for attorney’s fee in the county court at any time after the entry of final judgment on the merits in favor of respon-deni/defendant against petitioner/plaintiff in February, 1992.1 Instead, several months after petitioner filed an appeal in the circuit court, respondent filed two motions for attorney’s fee there. The first was filed on or about May 7,1992, claiming entitlement pursuant to section 57.105(2), Florida Statutes (1991).2 There is no way to determine from the motion when the attorney’s services were performed — prior to and/or after the appeal, neither party including the attorney’s affidavit in the respective appendices. The circuit court never ruled on the above motion until after its mandate was issued, granting said motion twenty-one days after the mandate although it had lost jurisdiction by then to award such fees for appellate services.

Seven months after the above mandate, respondent’s attorney filed another motion for attorney’s fee in the circuit court, but we do not have the accompanying affidavit. For all we know, the affidavit .includes services from the commencement of representation to the date of the affidavit as the motion alludes to 38.30 hours having been spent.

Petitioner then filed in the county court a motion to dismiss respondent’s above aberrant motion for attorney’s fees. We do not know if the trial court ruled on that motion. We do know that on the same day it was served, the county court awarded an attorney’s fee to respondent, apparently without any motion in said court for same.

Our having recited that the two motions for attorney’s fees at the trial level were filed in the wrong court and those for appellate attorney’s fees were acted upon or filed, respectively, when the circuit court had no jurisdiction, we finally conclude that a trial court generally should not grant a post-judgment motion for attorney’s fees filed almost three months after the judgment on the merits because of “unreasonable tardiness.” White did not rule on the length of time which was permissible,3 leaving that decision to local rules approved by the district courts. Nevertheless, it cited one decision which recommended a uniform rule with a maximum of twenty-one days;4 although its holding was limited to the conclusion that the attorney’s fee was not subject to the ten day limitation contained in rule 59(e), Federal Rules of Civil Procedure.

POLEN, J., concurs.

GUNTHER, J., dissents without opinion.

. While the final judgment in the county court on the merits of the parties' underlying dispute did not reserve jurisdiction to award an attorney’s fee to the prevailing party, it was unnecessary for it to do so because any post-judgment motion for attorney's fee would raise a "collateral and inde pendent claim.” Finkelstein v. North Broward Hosp. Dist., 484 So. 2d 1241, 1243 (Fla.1986), adopting the reasoning and holding in White v. New Hampshire Dep't of Employment Security, 455 U.S. 445, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982).

.Section 57.105(2), Florida Statutes (1991), provides:

(2) If a contract contains a provision allowing attorney’s fees to a party when he is required to take any action to enforce the contract, the court may also allow reasonable attorney's fees to the other party when that party prevails in any action, whether as plaintiff or defendant, with respect to the contract. This act shall take effect October 1, 1988, and shall apply to contracts entered into on said date or thereafter. The notice of appeal was actually filed eight days prior to entry of the final judgment on the merits, but it was amended after final judgment.

. The motion in White was filed four and one-half months after the final judgment.

. See Obin v. District No. 9 of the Int’l Ass’n of Machinists and Aerospace Workers, 651 F. 2d 574, 584 (8th Cir.1981), wherein conflicts between the circuits are also discussed on the question whether attorney’s fees are costs.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By (12 total)

  • United States Fid. & Guar. v. Martin Cnty., 669 So. 2d 1065 (Fla. 4th DCA 1996)
    …n securing the final summary judgment. The trial court denied the motion, determining that the motion had not been filed in a reasonable time after the entry of the final judgment, relying on McAskill Publications, Inc. v. Keno Bros. Jewelers, Inc., 647 So. 2d 1012 (Fla. 4th DCA 1994). Because we believe that McAskill is distinguishable, that USF & G did move to assess fees immediately after the judgment became “final” by our decision, and that there was no surprise or prejudice to the county, we reverse. The…
  • Adrianna Mihalyi v. Lasalle Bank, N.A., 162 So. 3d 113 (Fla. 4th DCA 2014)
    …837 (Fla.1991). A party pleading entitlement to attorney’s fees must also move the trial court for the same and present proof of fees within a reasonable time after [*115] the judgment is entered. McAskill Publ’ns, Inc. v. Keno Bros. Jewelers, Inc., 647 So. 2d 1012, 1012 (Fla. 4th DCA 1994). Once fee entitlement is determined, the party requesting the fees is entitled to an evidentiary hearing as to the reasonableness of the amount of fees. See Guyton v. Leonard Dewey Wilkinson Action Welding Supply, Inc., 707…
  • Wunderle v. Fruits, 715 So. 2d 325 (Fla. 2d DCA 1998)
    …lees did not file their motion until two months after the jury verdict in their favor, we do not find that the motion for attorney’s fees was filed within a reasonable , time period. See also McAskill Publications, Inc. v. Keno Bros. Jewelers, Inc., 647 So. 2d 1012 (Fla. 4th DCA 1994) (stating that a trial court generally should not grant a post-judgment motion for attorney’s fees filed almost three months after the judgment on the merits because of “unreasonable tardiness”). Since the appellees failed to com…

Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw