DEPARTMENT OF CHILDREN AND FAMILIES, APPELLANT,
v.
M.G., MOTHER OF K.G. AND P.G., CHILDREN, APPELLEE
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The Florida Department of Children and Families appealed an order awarding $1,500 in attorney's fees to the mother of two children in a dependency case. The trial court assessed fees against the Department for requesting a continuance on the morning of trial after the mother's counsel had spent time over the Christmas holiday preparing. The appellate court affirmed, holding that trial courts have discretion to award attorney's fees when a party requests a continuance immediately before trial, causing the opposing party to incur unnecessary legal expenses.
The trial court did not abuse its discretion in assessing $1,500 in attorney's fees against the Department. A trial court has authority to award attorney's fees occasioned by a belated request for continuance when the party obtains and benefits from the continuance, even without an express contractual or statutory basis, and the amount of the award is supported by substantial competent evidence.
[1] A trial court may assess attorney's fees against a party who seeks and obtains a continuance on the eve of trial.
[2] A trial court has the authority to assess attorney's fees occasioned by a belated request for a continuance when the requesting party avails itself of the continuance.
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“It was not the request for a continuance, however, but its timing that led to the assessment, of attorney's fees against the Department.”
The court's key distinction that justified the fee award—not the continuance itself, but the eleventh-hour timing of the request.
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Join FLexlaw to unlock all legal intelligenceThe Department of Children and Families sheltered two children and filed a dependency petition. Trial was scheduled for Wednesday, December 26, 2001. …
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PLEUS, J.
The Department of Children and Families appeals an order awarding $1500 in attorney’s fees to M.G., the mother of two children the Department was seeking to have declared dependent.
The Department sheltered M.G.’s two children. A dependency petition was filed and after pretrial skirmishing was completed and discovery undertaken, the trial court scheduled trial for Wednesday, December 26, 2001. On the morning of December 26, the Department filed a motion for continuance which in essence said that it could begin the trial, but all of its wit nesses were not available so it would need a continuance after the first day of trial.
The able trial judge told the Department that the case would not be tried piecemeal. She told them to either start and finish without interruption or she would continue and reschedule. The Department asked for and was given a continuance.
M.G.’s lawyer stepped in and told the court, “Judge, I worked over Christmas to get ready for a trial that was supposed to start today. Had the Department moved last week for a continuance, I would not have spent that time.” The judge said, “I agree and I’ll hold a hearing on attorney’s fees.” The court did, and M.G. was awarded $1500 in attorney’s fees for five hours of work.
The trial court did not abuse its discretion when it concluded that a continuance was necessary so the issue of dependency could be fully and properly litigated. See In re Gregory, 313 So. 2d 735 (Fla.1975). It was not the request for a continuance, however, but its timing that led to the assessment, of attorney’s fees against the Department.
In Flea Market USA, Inc. v. Cohen, 490 So. 2d 210 (Fla. 3d DCA 1986), the Third District ruled that a party which sought and obtained a continuance just before trial could be required to pay attorney’s fees occasioned by the delay. Judge Schwartz wrote in Cohen:
We find no abuse of discretion in the order under review, which conditioned granting the appellant’s eve of trial motion for continuance upon the payment of the appellee’s attorney’s fees caused by the delay.
490 So. 2d at 210.
While the Department objected to the assessment of fees, it never withdrew its morning of trial motion for continuance and availed itself of the benefit of the continuance, admitting a continuance was essential to the effective presentation of its case. Under these circumstances, the trial court had the authority to assess attorney’s fees occasioned by the belated request for a continuance.
Because the attorney’s fees were awarded in conjunction with the granting of the Department’s motion for continuance, we reject the Department’s contention that the absence of a contractual or statutory basis for the recovery of attorney’s fees is fatal to the award. Likewise, Moakley v. Smallwood, 826 So. 2d 221 (Fla.2002), has no application to the assessment of fees because this was not a situation involving imposition of sanctions for an attorney’s vexatious, bad faith conduct.
Finally, the amount of the award is supported by substantial competent evidence. Accordingly, the order assessing attorney’s fees against the Department in the amount of $1500 is affirmed.
AFFIRMED.
GRIFFIN, J, and COBB, W., Senior Judge, concur.
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Carib Ocean Shipping, Inc. v. Armas, 854 So. 2d 234 (Fla. 3d DCA 2003)…f newly raised issue), conditioned, if appropriate, upon the defendant's payment of any costs and expenses incurred by the plaintiff because of the delay. See Radecki v. Joura, 177 F. 3d 694 (8th Cir.1997); Department of Children & Families v. M.G., 838 So. 2d 703 (Fla. 5th DCA 2003); Flea Market, U.S.A., Inc. v. Cohen, 490 So. 2d 210 (Fla. 3d DCA 1986). The trial judge recognized this fact by himself suggesting that a continuance of the trial was in order. Nevertheless, the motion to amend was denied after h…
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Jacquelyn Bennett and Bobbie Sue Miller v. Marie-Christine Berges, 50 So. 3d 1154 (Fla. 4th DCA 2010)…es caused by the delay. This case is analogous to cases affirming fee awards as sanctions where a party moves for a continuance on the eve of trial, causing the other side to incur unneces [*1160] sary fees. See Dep’t of Children & Families v. M.G., 838 So. 2d 703 (Fla. 5th DCA 2003) (holding that a trial court did not abuse its discretion in awarding fees incurred because the Department moved for a continuance on the eve of trial). The amount of fees awarded, however, is excessive based upon the extent of t…
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Dep't of Child. & Fam. Servs. v. J.B., 898 So. 2d 980 (Fla. 5th DCA 2005)…hildren and Families v. D.T., 808 So. 2d 1282 (Fla. 5th DCA 2002); Lamb v. Fowler, 574 So. 2d 262 (Fla. 1st DCA 1991). A court may also award attorney’s fees conditioned upon the granting of a continuance. See Dep’t of Children and Families v. M.G., 838 So. 2d 703 (Fla. 5th DCA 2003). We caution, however, that our holding in M.G. should not be construed as a broad grant of authority to award attorney’s fees as a sanction in contexts other than those outlined above. We decline to address the Department’s argu…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Moakley v. Smallwood, 826 So. 2d 221 (Fla. 2002)
- In re Gregory v. Gregory, 313 So. 2d 735 (Fla. 1975)
- Flea Mkt. v. Adolf Cohen and Marlene Cohen, 490 So. 2d 210 (Fla. 3d DCA 1986)