ALVIN B. OLESH, APPELLANT,
v.
PATRICIA GREENBERG, APPELLEE
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Alvin Olesh appeals the denial of his motion for relief from judgment seeking to vacate an attorney's fees award. The trial court had entered a $115,423 fee judgment against Olesh while his appeal of the underlying summary judgment was pending. The appellate court reverses and remands because the underlying summary judgment was reversed on appeal, requiring reconsideration of the fee award.
The appellate court reversed and remanded the case for the trial court to reconsider the attorney's fee award in light of the prior decision reversing the underlying summary judgment, without prejudice to Greenberg seeking attorney's fees under alternative grounds if adequately supported.
[1] A motion for relief from judgment under Florida Rule of Civil Procedure 1.540(b) may be granted when the underlying judgment upon which the award of attorney's fees is ba…
[2] An award of attorney's fees based on a sua sponte determination of liability under section 57.105, Florida Statutes, requires adequate findings of fact to support the awa…
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Join FLexlaw to unlock all legal intelligence“Under the circumstances of this case, we agree that this matter should be reversed and remanded for the trial court to reconsider the attorney's fee award in light of our prior decision.”
Establishes the court's holding that the fee award must be reconsidered given the reversal of the underlying summary judgment.
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Join FLexlaw to unlock all legal intelligenceThe trial court granted summary final judgment against Olesh on Greenberg's motion. While Olesh's appeal of that judgment was pending, Greenberg filed…
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Alvin B. Olesh appeals the trial court’s order denying his motion for relief from judgment filed under Florida Rule of Civil Procedure 1.540(b). Olesh’s motion sought relief from an attorney’s fees award entered against him, and in favor of Patricia Greenberg and her former attorney, Mark P. Lang. We reverse.
On Greenberg’s motion, the trial court granted a summary final judgment against Olesh. On appeal, this Court reversed the summary judgment on the ground that the trial court should have allowed Olesh to offer new evidence in support of his motion for rehearing and amend his complaint following discharge of his counsel after the hearing on the motion for summary judgment. See Olesh v. Greenberg, 978 So.2d 238 (Fla. 5th DCA 2008). After the summary final judgment was entered, but while the appeal was pending, Greenberg filed a motion for attorney’s fees and costs against Olesh. The motion was based on the trial court’s sua sponte determination at the hearing on Greenberg’s motion for summary judgment that Olesh was liable for Greenberg’s attorney’s fees under section 57.105, Florida Statutes (2007), and Olesh’s failure to accept a proposal for settlement served on him pursuant to section 768.79, Florida Statutes (2007), and Florida Rule of Civil Procedure 1.442. The trial court granted Greenberg’s motion and entered a final judgment against Olesh in the amount of $115,423, including fees and costs.
Olesh, who was unrepresented at the time, did not appeal that judgment. However, several days after this Court reversed the summary judgment against him (and less than one year after its entry), Olesh filed a rule 1.540(b) motion for relief from judgment, seeking to have the trial court set aside the fee award. Olesh argued that the fee judgment should be vacated because the underlying summary final judgment had been reversed. Following a hearing, the trial court denied the motion and this appeal followed.
Under the circumstances of this case, we agree that this matter should be reversed and remanded for the trial court to reconsider the attorney’s fee award in light of our prior decision. See Fla. R. Civ. P. *461.540(b). Our decision is without prejudice to Greenberg again seeking attorney’s fees if her proposal for settlement entitles her to attorney’s fees, or to fees under section 57.105 if adequately supported by findings of fact.
REVERSED and REMANDED.
GRIFFIN and COHEN, JJ., concur.
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Olesh v. Greenberg, 138 So. 3d 561 (Fla. 5th DCA 2014)…n a complaint filed in 2005 by Olesh against Greenberg seeking partition of residential real property, creation of a constructive trust, and damages for unjust enrichment with respect to real property and a brokerage account. See Olesh v. Greenberg, 9 So. 3d 44 (Fla. 5th DCA 2009); Olesh v. Greenberg, 978 So. 2d 238 (Fla. 5th DCA 2008). During the 2005 litigation, Olesh and Greenberg entered into a Stipulation as to Personalty regarding Olesh’s personal property which was in Greenberg’s possession. The Sti…
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Alfa Vision Ins. Corp. v. Tampa Chiropractic Ctr. (9th Cir. Ct. App. Div. 2013)…rulings as to underlying Final Judgment entered on February 24, 2011 is dispositive for the instant appeal and warrants reversal of the Final Judgment of Attorney’s Fees and Costs rendered by the lower court on October 11, 2011. Olesh v. Greenberg, 9 So. 3d 44, 45 (Fla. 5th DCA 2009) (holding that the attorney fee judgment should be reversed and remanded because the underlying summary final judgment had been reversed). See Massachusetts Casualty Insurance Company v. Forman, 516 F. 2d 425, 431 (5th Cir. 19…
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Alfa Vision Ins. Corp. v. Wellness Health Assocs. (9th Cir. Ct. App. Div. 2013)…ings as to the underlying Final Judgment entered on February 24, 2011 is dispositive for the instant appeal and warrants reversal of the Final Judgment of Attorney’s Fees and Costs rendered by the lower court on October 11, 2011. Olesh v. Greenberg, 9 So. 3d 44, 45 (Fla. 5th DCA 2009) (holding that the attorney fee judgment should be reversed and remanded because the underlying summary final judgment had been reversed). See Massachusetts Casualty Insurance Company v. Forman, 516 F. 2d 425, 431 (5th Cir.…
Authorities Cited
- Adamson v. McNEIL, 978 So. 2d 238 (Fla. 1st DCA 2008)