MIGUEL DIAZ AND CINDY DIAZ, APPELLANTS,
v.
GRACE M. BOWEN; WILLIAM H. BOYKIN; EXCHANGE REALTY, INC., A FLORIDA CORPORATION; JOANN WARREN; MICHAEL E. NORRIS; DEE NORRIS; AND BROKERS REALTY OF CENTRAL FLORIDA, INC., A FLORIDA CORPORATION, APPELLEES
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The Diazes appealed an order awarding attorneys' fees to defendant Grace Bowen, arguing that Bowen's motion for fees was untimely under Florida Rule of Civil Procedure 1.525. The court reversed, holding that while Bowen properly pleaded an entitlement to fees in her answer, she was required to file a separate postjudgment motion within 30 days of judgment, which she failed to do.
A party seeking attorneys' fees must serve a motion for fees within 30 days after judgment, even if the party previously pleaded entitlement to fees in the complaint or answer. The pleading is not self-effectuating; it merely places the adversary on notice that fees will be sought at conclusion of the case.
[1] A party seeking attorneys' fees or costs must serve a motion within 30 days after the filing of the judgment.
[2] A request for attorneys' fees contained within a complaint or answer serves only to notify the opposing party of a potential claim and does not obviate the need for a tim…
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Join FLexlaw to unlock all legal intelligence“A request for fees and costs contained within a complaint or answer is not self-effectuating. It merely places one's adversary on notice that a claim for fees and costs will be made at the conclusion of the case.”
Establishes that pleading fees in an answer does not substitute for filing a timely postjudgment motion for fees
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Join FLexlaw to unlock all legal intelligenceThe Diazes purchased a house from Grace Bowen in 1997 and discovered a sinkhole shortly thereafter. In September 1998, they sued Bowen and others for …
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ALTENBERND, Judge.
Miguel and Cindy Diaz appeal an order awarding attorneys’ fees and costs in favor of the defendant, Grace M. Bowen. We reverse the order because Ms. Bowen did not file a timely motion for fees and costs pursuant to Florida Rule of Civil Procedure 1.525.
The Diazes purchased a house from Ms. Bowen in 1997. Soon thereafter, they discovered a sinkhole. In September 1998, the Diazes sued Ms. Bowen and others alleging that they failed to disclose this condition at the time of purchase. In her answer to the complaint and in her subsequent answers to several amended complaints, Ms. Bowen alleged her entitlement to attorneys’ fees under the real estate contract. These answers contained a motion for an award of fees and costs. There is no question that Ms. Bowen properly pleaded an entitlement to fees and costs. See Stockman v. Downs, 573 So. 2d 835, 837-38 (Fla.1991).
This case went to trial in 2001, and the trial court entered a directed verdict in favor of Ms. Bowen. The trial court entered a final judgment in favor of Ms. Bowen on April 10, 2001.1 Other defendants served motions for attorneys’ fees or costs within thirty days of this judgment. Ms. Bowen did not serve her motion until June 26, 2001, seventy-seven days after final judgment. The trial court granted fees on this motion stating that it was not untimely. Apparently, the trial court concluded that the earlier pleadings complying with Stockman eliminated the need to file a timely postjudgment motion. We disagree.
While this case was pending in circuit court, the supreme court adopted Florida Rule of Civil Procedure 1.525 on October 5, 2000, to become effective on January 1, 2001. Amendments to Florida Rules of Civil Procedure, 773 So. 2d 1098 (Fla.2000). This rule states:
Any party seeking a judgment taxing costs, attorneys’ fees, or both shall serve a motion within 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal.
Id. at 1119-20. Ms. Bowen’s motion was untimely under this rule. The new rule applied to this action pending in 2001. Ulico Cas. Co. v. Roger Kennedy Constr., Inc., 821 So. 2d 452 (Fla. 1st DCA 2002) (holding trial court properly denied untimely motion under rule 1.525 in ease commenced prior to January 1, 2001). Ms. Bowen did not file any motion seeking an extension of time to file this postjudgment motion for attorneys’ fees.
A request for fees and costs contained within a complaint or answer is not self-effectuating. It merely places one’s adversary on notice that a claim for fees and costs will be made at the conclusion of the case. See Stockman, 573 So. 2d at 837. To recover fees and costs, a party must file a posttrial pleading and supporting proof. Rule 1.525 was created to establish a bright-line rule to resolve the uncertainty surrounding the timing of these posttrial motions. See, e.g., Shipley v. Belleair Group, Inc., 759 So. 2d 28, 30 (Fla. 2d DCA 2000) (suggesting usefulness of bright-line rule for timing requirements); see also Fla. R. Civ. P. 1.525 (court commentary) (distinguishing rule’s time requirements for postjudgment motions from pretrial pleading requirements in Stockman).
Ms. Bowen’s motion was untimely, and she had not obtained an extension of time in which to file this motion. Accordingly, her motion should have been stricken or denied. See Ulico Cas., 821 So. 2d 452.
Reversed and remanded.
STRINGER and SILBERMAN, JJ., Concur. . The Diazes appealed this final judgment, and this court affirmed that judgment without written opinion. See Diaz v. Bowen, 814 So. 2d 1040 (Fla. 2d DCA 2002) (table).
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Citator
Cited By (20 total)
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Saia Motor Freight Line, Inc. v. Reid, 930 So. 2d 598 (Fla. 2006)…effective January 1, 2001, we established a bright-line time requirement for motions for costs and attorney fees which the Rules of Civil Procedure had not previously contained.3 Judge Altenbernd correctly made this point stating, in Diaz v. Bowen, 832 So. 2d 200, 201 (Fla. 2d DCA 2002), that “[r]ule 1.525 was created to establish a bright-line rule to resolve the uncertainty surrounding the timing of these posttrial motions,” and in Gulf Landings, 845 So. 2d at 346, “It is no longer enough for parties to pl…
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Fisher v. John Carter & Assocs., Inc., 864 So. 2d 493 (Fla. 4th DCA 2004)…nt taxing costs, attorneys’ fees, or both shall serve a motion within 30 days after filing of the judgment .... ” Actions that were still pending when Florida Rule of Civil Procedure 1.525 became effective are subject to the rule. See Diaz v. Bowen, 832 So. 2d 200 (Fla. 2d DCA 2002) (holding that the rule requiring a party seeking attorneys’ fees and costs to serve a motion within thirty days after filing of the judgment applied to action that was pending when rule became effective, and thus, vendor’s motion…
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Wentworth v. Johnson, 845 So. 2d 296 (Fla. 5th DCA 2003)…all family law matters except where the Family Law Rules conflict. The rule was designed to establish a bright fine to resolve any uncertainty concerning the timing of post-trial motions, and to bring them to a timely conclusion. See Diaz v. Bowen, 832 So. 2d 200 (Fla. 2d DCA 2002); see also Green v. Sun Harbor, 730 So. 2d 1261 (Fla.1998). A request for fees and costs contained within a complaint or answer simply puts one’s adversary on notice that a claim for fees and costs will [*299] be sought at the conc…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Stockman v. Downs, 573 So. 2d 835 (Fla. 1991)
- Amendments to the Florida Rules of Civil Procedure, 773 So. 2d 1098 (Fla. 2000)
- Diaz v. Bowen, 832 So. 2d 200 (Fla. 2d DCA 2002)
- Ulico Cas. Co. v. Roger Kennedy Constr., Inc., 821 So. 2d 452 (Fla. 1st DCA 2002)
- Shipley v. Belleair Grp., Inc., 759 So. 2d 28 (Fla. 2d DCA 2000)