DANNY ATKINS AND JAN WALKER, APPELLANTS,
v.
GRACE ERIS AND KAYE C. HOWERTON, APPELLEES
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The Florida District Court of Appeal reversed a supplemental final judgment awarding attorney's fees and costs to the appellees, holding that the motions seeking such fees and costs either failed to comply with procedural rules or lacked a valid contractual basis under the shareholders' agreement between the parties.
The court reversed the supplemental final judgment in its entirety. The award of costs based on the September 7 motion was reversed because that motion did not expressly seek taxable costs. The award of costs based on the January 23 motion was reversed because it was not served within 30 days of the final judgment as mandated by Rule 1.525. The award of attorney's fees was reversed because the shareholders' agreement, by its terms, only provides for attorney's fees when a suit enforces or defends the agreement's provisions, but the relief granted here was not based on any breach or defense of those provisions.
[1] A motion seeking attorney's fees, but not expressly seeking costs, cannot serve as a basis for an award of costs.
[2] A motion for costs not served within 30 days after the filing of the judgment does not satisfy the requirements of rule 1.525, Florida Rules of Civil Procedure.
Previewing 2 of 4 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“Because the [motion] of September 7 did not expressly seek costs, it cannot serve as a basis for an award of costs.”
Establishes that motions for costs must expressly request costs to be valid bases for a costs award.
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Join FLexlaw to unlock all legal intelligenceEris brought an action against Walker and Atkins seeking to rescind a warranty deed and set aside a mortgage. Following a bench trial in August 2001, …
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Danny Atkins and Jan Walker seek reversal of a supplemental final judgment in favor of appellees, Grace Eris and Kaye C. Howerton, assessing attorney’s fees against Walker and assessing costs against Atkins and Walker. For the reasons that follow, we reverse.
On December 10, 2001, the trial court entered a final judgment following a bench trial in August 2001 in an action brought by Eris against Walker and Atkins seeking to rescind a warranty deed and to set aside a mortgage, among other relief.- On September 7, 2001,1 Eris filed one of the motions which was a subject of the order on appeal. Eris does not contest the claim of Atkins and Walker that this motion was not filed within 30 days of the rendition of the final judgment. Instead, Eris argues that the September 7 motion was a motion seeking costs and that this motion was served within ten days of the trial court’s oral pronouncement of its decision at the conclusion of the bench trial. On its face, however, the September 7 motion does not seek taxable costs. Rather, the motion seeks only to have an award of attorney’s fees assessed.2 Because the motion of September 7 did not expressly seek costs, it cannot serve as a basis for an award of costs. Gulf Landings Ass’n v. Hershberger, 845 So. 2d 344, 346 (Fla. 2d DCA 2003). Accordingly, we reverse the award of costs based upon the September 7 motion. We do not address the timeliness issue with respect to the September 7 motion.
Eris’ motion of January 23, 2002, which does expressly seek an award of costs, was not served within 30 days of the filing of the final judgment on December 10, 2001. A motion which is not served “within 30 days after filing of the judgment” does not satisfy the explicit requirements of rule 1.525, Florida Rules of Civil Procedure. Rule 1.525 is mandatory. Ulico Gas. Co. v. Roger Kennedy Constr., Inc., 821 So. 2d 452, 453 (Fla. 1st DCA 2002). Thus, we reverse the award of costs based upon the January 23 motion.
As for the award of attorney’s fees, Walker does not argue that the motions for an award of attorney’s fees were untimely, but asserts that the motions state no permissible basis for an award of attorney’s fees. We agree. In her motions, Eris sought attorney’s fees pursuant to the terms of a shareholders’ agreement to which Eris and Walker were parties. The agreement provides in pertinent part that: “[i]n the event a suit or proceeding is brought by a party to this Agreement to enforce or defend its provisions, or seek remedy for any breach thereof, the prevailing party or parties shall be entitled to receive its reasonable attorney’s fees.... ” The relief granted to Eris by the final judgment, however, was not based upon a finding that Walker breached a provision of the shareholders’ agreement and did not enforce or defend any provision of the shareholders’ agreement. Thus, the shareholders’ agreement, by its terms, does not provide a basis for an award of attorney’s fees in this action. No other basis for an award has been alleged by Eris. Accordingly, we are constrained to reverse the award of attorney’s fees.
The supplemental final judgment is reversed in its entirety.
KAHN and WEBSTER, JJ., concur. . Eris states that this motion was filed on September 2, 2001. There is no motion of record dated September 2, 2001, however. There is a motion in the record on appeal which is dated September 7, 2001, and which bears a filing stamp of September 7, 2001.
. In the motion dated September 2, 2001, and filed September 7, 2001, Eris sought an as sessment of attorney’s fees against "both the Defendants.” However, by an amended motion dated September 13, 2001, Eris sought attorney’s fees only against defendant Walker.
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Norris v. Treadwell, 907 So. 2d 1217 (Fla. 1st DCA 2005)…nature of rule 1.525, and further quoted committee notes establishing “ ‘a time requirement to serve motions for costs and attorneys’ fee’.” 821 So. 2d at 453 (quoting Fla. R. Civ. P. 1.525 Committee Notes (2000 adoption)); see also Atkins v. Eris, 873 So. 2d 1264, 1266 (Fla. 1st DCA 2004) (characterizing the requirements of rule 1.525 as “explicit” and “mandatory”). The time “requirement” that we approved is not the same as the time “deadline” that the majority now adopts. Although we have allowed a proper m…
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Smith v. Smith, 902 So. 2d 859 (Fla. 1st DCA 2005)…. 2d 344, 345-46 (Fla. 2d DCA 2003); Wentworth v. Johnson, 845 So. 2d 296, 299 (Fla. 5th DCA 2003). Although this court has agreed with the Second and Fifth Districts in deciding that the requirements of rule 1.525 are mandatory, see Atkins v. Eris, 873 So. 2d 1264, 1266 (Fla. 1st DCA 2004); Ulico Casualty Co. v. Roger Kennedy Construction, Inc., 821 So. 2d 452, 453 (Fla. 1st DCA 2002), it also holds that rule 1.525 must be considered in conjunction with Florida Rule Civil Procedure 1.090(b), which provides in…
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Braxton v. Morris, 914 So. 2d 8 (Fla. 1st DCA 2005)…. 2d 344, 345-46 (Fla. 2d DCA 2003); Wentworth v. Johnson, 845 So. 2d 296, 299 (Fla. 5th DCA 2003). Although this court has agreed with the Second and Fifth Districts in deciding that the requirements of rule 1.525 are mandatory, see Atkins v. Eris, 873 So. 2d 1264, 1266 (Fla. 1st DCA 2004), and Ulico Cas. Co. v. Roger Kennedy Construction, Inc., 821 So. 2d 452, 453 (Fla. 1st DCA 2002), it also holds [in Dep’t of Transp. v. Southtrust Bank, 886 So. 2d 393 (Fla. 1st DCA 2004) ] that rule 1.525 must be considere…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gulf Landings Ass'n, Inc. v. Hershberger, 845 So. 2d 344 (Fla. 2d DCA 2003)
- Ulico Cas. Co. v. Roger Kennedy Constr., Inc., 821 So. 2d 452 (Fla. 1st DCA 2002)