MARTHA B. MILLS, WIFE, APPELLANT,
v.
E. RICHARD MILLS, JR., APPELLEE
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Martha Mills appealed the trial court's denial of her motion to correct the original judgment and award attorney's fees, filed 13 months after entry of the judgment. The court affirmed, holding that the motion was barred by the one-year deadline in Florida Rule of Civil Procedure 1.540(b)(1) and that Mills had not properly pled a claim for attorney's fees in the original proceedings.
The trial court did not err in denying the motion. The motion was barred by the one-year deadline in Florida Rule of Civil Procedure 1.540(b)(1) because Mills had not properly pled attorney's fees in the original proceeding, making any omission of ruling on that issue a substantive mistake rather than a clerical one.
[1] A trial court lacks jurisdiction to grant attorney's fees when the original judgment on the pleadings has been affirmed on appeal and the time for filing a motion for att…
[2] A motion to correct an order under Fla.R.Civ.P. …
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Join FLexlaw to unlock all legal intelligence“The appellant inartfully pled a claim for attorney's fees in the original proceeding in that she only referred to the fact that she had retained a law firm to represent her and had agreed to pay them a reasonable fee. She made no prayer for an award of attorney's fees and she did not allege her need or the appellee's ability to pay.”
Establishes that Mills failed to properly plead her attorney's fee claim, which was fatal to her motion.
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Join FLexlaw to unlock all legal intelligenceIn the original proceeding (Mills v. Mills, 339 So. 2d 681), Mills sought modification of a final judgment. The trial court granted a motion for judgm…
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PER CURIAM.
Subsequent to the mandate having issued in Mills v. Mills, 339 So. 2d 681 (Fla. 1st DCA 1976), the respondent in the original proceedings, Martha B. Mills, filed a motion to correct the original order granting motion for judgment on the pleadings which had been affirmed in the prior opinion. This motion was filed on March 30, 1977, some thirteen months after the entry of the original judgment on the pleadings, and sought attorney’s fees for defense in the trial court of the original motion to modify final judgment. The trial court held that it had no jurisdiction to grant the relief sought. This is an appeal from that ruling.
The appellant inartfully pled a claim for attorney’s fees in the original proceeding in that she only referred to the fact that she had retained a law firm to represent her and had agreed to pay them a reasonable fee. She made no prayer for an award of attorney’s fees and she did not allege her need or the appellee’s ability to pay. See Johnson v. Johnson, 346 So. 2d 591 (Fla. 1st DCA 1977). When the original petition for modification was under advisement, appellant’s attorney declined the court’s invitation to amend her pleadings but did request the opportunity to be heard on attorney’s fees if the court ruled in her favor. Whether the court’s failure to rule on the question of attorney’s fees or to retain jurisdiction of that subject could have been reversed on appeal is moot because no appeal was taken on this issue.
Thus, appellant’s remedy, if any, must be under Fla.R.Civ.P. 1.540. Subsection (a) of the rule permits clerical mistakes to be corrected at any time, but the failure to include a ruling on attorney’s fees can hardly be said to be a mistake which is clerical in nature when there is no indication that the court ever intended to pass on the issue of attorney’s fees when the original order was entered. See De Baun v. Michael, 333 So. 2d 106 (Fla.2d DCA 1976). If a mistake was made, it would have been one which could only be reached under subsection (b)(1), and this portion of the rule provides that the motion must be filed within one year after the entry of the judgment from which the relief is sought. Cf. Wilder v. Wilder, 251 So. 2d 311 (Fla. 4th DCA 1971).
Therefore, the order denying the motion relating to attorney’s fees and to correct order, etc. be and the same is hereby affirmed.
AFFIRMED.
BARKDULL, Jr., Acting C. J., and GRIMES and DAUKSCH, JJ., concur.
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Frisard v. Frisard, 497 So. 2d 885 (Fla. 4th DCA 1986)…. 2d 311, 313-314 (Fla. 4th DCA 1971). Under the authority of Wilder, we conclude that the trial court was without authority to attempt to carry out its original intent pursuant to Rule 1.540(a). We are aware that the appellee cites Mills v. Mills, 353 So. 2d 954 (Fla. 1st DCA 1978), for the proposition that the failure to include attorney’s fees in a final judgment of dissolution when such an intention has been stated by the court is a clerical mistake. However, what Mills seems to state is that one cannot…
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Peters v. Peters, 479 So. 2d 840 (Fla. 1st DCA 1985)…). The change in this case in the amount of child support due under the 1982 order, from $550.00 to $6,860, is clearly a change in “substance” which could have been corrected only under Rule 1.540(b), and within its time constraints. Mills v. Mills, 353 So. 2d 954 (Fla. 1st DCA 1978). Appellee’s contention is that the erroneous evidence offered in 1982 originated in a “clerical” mistake in data from the Domestic Relations Depository. Assuming such an error, that occurrence as well as the omission of appellee’…
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Sottile v. Sottile, 551 So. 2d 608 (Fla. 5th DCA 1989)…is matter is remanded to the trial court for further proceedings consistent herewith. REVERSED and REMANDED. SHARP, J. and PETERSON, E.W., Jr., Associate Judge, concur. . See Frisard v. Frisard, 497 So. 2d 885 (Fla. 4th DCA 1986); Mills v. Mills, 353 So. 2d 954 (Fla. 1st DCA 1978).…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Mills v. Mills, 339 So. 2d 681 (Fla. 1st DCA 1976)
- Johnson v. Johnson, 346 So. 2d 591 (Fla. 1st DCA 1977)
- Wilder v. Wilder, 251 So. 2d 311 (Fla. 4th DCA 1971)
- De Baun v. Michael, 333 So. 2d 106 (Fla. 2d DCA 1976)