THOMAS MICHAEL SMITH, APPELLANT,
v.
GAIL ELIZABETH DAWSON, F/K/A GAIL ELIZABETH DAWSON-SMITH, APPELLEE

Fla. 2d DCA | 2004-06-30
No. 2D03-1304
WHATLEY and SALCINES, JJ., Concur.
880 So. 2d 784 Florida District Court of Appeal, Second District (2004) Positive Treatment
Cited by 2 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.

Synopsis

Thomas Michael Smith appealed a post-dissolution judgment awarding attorney's fees and costs to his former wife. The court reversed because the amended motion for attorney's fees and notice of hearing were not served upon Smith's attorneys of record, as required by Florida procedural rules.


Holding

The court reversed the fee judgment because proper service was not made on Smith's attorneys of record. Since an action remains pending until the appellate window closes, and the fee motion was filed within that window, service on the attorneys of record was required. Additionally, any judgment against the conservators was properly imposed only in their official capacity, not individually.


Headnotes

[1] A party's attorneys of record must be served with an amended motion for attorney's fees and notice of hearing in a pending action.

[2] An action remains pending until the time for filing an appeal has expired.

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Key Quotes

“Florida Rule of Civil Procedure I.080(b) requires service upon the attorney of record in a pending action.”

Establishes the mandatory service requirement that the trial court violated in this case.

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Facts & Procedural History

In a dissolution of marriage case, the former wife Gail Elizabeth Dawson filed an amended motion for attorney's fees and costs twenty-five days after …

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Opinion of the Court
NORTHCUTT, Judge.

NORTHCUTT, Judge.

Thomas Michael Smith appeals a post-dissolution judgment ¿warding attorney’s fees and costs to his former wife, Gail Elizabeth Dawson Smith, n/k/a Gail Elizabeth Dawson. We reverse because the amended motion for attorney’s fees and the notice of hearing were not served upon Smith’s attorneys of record.

Florida Rule of Civil Procedure I.080(b) requires service upon the attorney of record in a pending action. See Bridges v. Bridges, 520 So. 2d 318 (Fla. 2d DCA 1988). Smith argues, and the record shows, that the amended motion for attorney’s fees and the notice of hearing were not served upon his attorneys of record, Bruce Kaplan and Brian Bursa. Dawson contends that Kaplan and Bursa were no longer representing Smith, but there is no record support for this assertion. Florida Rule of Judicial Administration 2.060(i)(l) requires court approval before an attorney is permitted to withdraw from a continuing action.

Furthermore, an action is pending until the time for filing an appeal has expired, see Suarez v. Hillcrest Dev. of S. Fla., Inc., 742 So. 2d 423, 425 (Fla. 3d DCA 1999) (citing Bridges); see also Fla. R. Jud. Admin. 2.060(i)(3). The fee motion in this case was filed only twenty-five days after the final judgment of dissolution was rendered, before the appellate window had closed. See Fla. R.App. P. 9.110(b).

Therefore, the action was still pending, and Dawson was required to serve notice on Smith’s attorneys of record. The lack of notice requires reversal. See Hanley v. Hanley, 426 So. 2d 1230 (Fla. 2d DCA 1983) (vacating property settlement and final judgment of dissolution when notice was not served on husband’s attorney).

The circuit court awarded the fees against Smith and his three conservators, jointly and severally.

We note that there is no indication this judgment was imposed against the conservators individually. Rather, it appears to have been imposed against them in their official capacity. The conservators in their official capacity signed Smith’s pleadings and financial affidavit and they appeared at the final hearing, thus submitting themselves in their official capacity to the court’s jurisdiction. See Fid.-Philadelphia Trust Co. v. Ball, 208 So. 2d 282, 285 (Fla. 3d DCA 1968) (holding that counterclaim could only be brought against trustees in their official capacity, which is how they appeared in the action, and could not be brought against trustees in their individual capacity; “The fact that the appellant[s] have submitted themselves as trustees to the jurisdiction of the Florida courts does not amount to a submission of themselves to the jurisdiction of the court for the purpose of adjudicating claims against them personally.”).

Also, Smith correctly argues, and Dawson concedes, that the circuit court erred in awarding interest at the rate of eleven percent rather than nine percent. Because we are reversing the fee judgment, this issue is moot.

Reversed and remanded.

WHATLEY and SALCINES, JJ., Concur.


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Citator

Cited By

  • Miami-Dade Cnty. v. Cribbs, 937 So. 2d 1215 (Fla. 3d DCA 2006)
    …e attorney unless service upon the party is ordered by the court.” Accordingly, in any pending action, the Rule requires service upon the attorney of record, and failure to serve the attorney may justify reversal for lack of notice. Smith v. Dawson, 880 So. 2d 784 (Fla. 2d DCA 2004). In Smith, the husband appealed from a postdissolution judgment, awarding attorney’s fees and costs to his former wife, arguing that the amended motion for fees and the notice of hearing were not served upon his attorneys of recor…

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