ESTATE OF NELSON BRUNGART, APPELLANT,
v.
SHERI SMALLWOOD AND MOLLY A. ERSAY, APPELLEE
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The court affirmed the trial court's orders granting attorneys' fees, finding the timeliness issue was not preserved for appeal.
The appellant appealed orders granting attorneys' fees to the defendant. The appellant argued the motion for fees was untimely filed under Fla. R. Civ…
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SHEPHERD, J.
The appellant, Estate of Nelson Brun-gart, appeals to this Court two orders of the Circuit Court for Monroe County which together grant attorneys’ fees to Sheri Smallwood, the defendant below, under section 57.105 of the Florida Statutes. We affirm.
Appellant urges that the award must be reversed because the motion seeking fees was untimely filed by Smallwood more than 30 days from the date of the dismissal of the action. See Fla. R. Civ. P. 1.525. Smallwood counters while that may be the case, she is nevertheless saved from that potential error on her part because she expressly sought an award of fees under section 57.105 in her motion to dismiss. The order of dismissal did not reserve jurisdiction to award fees. See Saia Motor Freight Line, Inc. v. Reid, 888 So. 2d 102 (Fla. 3d DCA 2004). However, we find that we need not reach this issue because it was not raised below and preserved for appeal. See Moss v. Moss, 901 So. 2d 177, 2005 WL 562757 (Fla. 2d DCA March 11, 2005) (holding that a failure to object to the tardiness of a motion for attorneys’ fees waives the 30-day requirement of R. 1.525).
In all other respects, we likewise affirm the judgment below. Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla.1979) (affirming lower court judgment where “the record brought forward by the appellant [was] inadequate to demonstrate reversible error”).
Affirmed.
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Dep't OF Child. & Families v. H.G. and J.G., 922 So. 2d 1072 (Fla. 5th DCA 2006)…J.G. singularly as the temporary custodian. . DCF did not raise below the timeliness of the appellees’ motion under Florida Rule of Civil Procedure 1.525, and therefore, failed to preserve the issue for appeal. See Estate of Brungart v. Smallwood, 901 So. 2d 247, 248 (Fla. 3d DCA 2005) (citing Moss v. Moss, 901 So. 2d 177 (Fla. 2d DCA 2005)). . The court's order dismissing H.G. and J.G. referred to them as parties, but none of the pleadings so alleged. . Even assuming that the appellees' status as partici…
Authorities Cited
- Pitcher v. Schneider (Fla. 5th DCA 2018)
- Albert v. Applegate et ux., 377 So. 2d 1150 (Fla. 1979)
- Saia Motor Freight Line, Inc. v. Reid, 888 So. 2d 102 (Fla. 3d DCA 2004)
- Moss v. Moss, 901 So. 2d 177 (Fla. 2d DCA 2005)