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Time Is On My Side

It was not but a few weeks ago that a circuit court in a certain county deferred on a well-founded motion to stay a case we filed because of a pending award of attorneys’ fees. The court was under the impression that the fees were abandoned because of the time between the award of entitlement to the award of the amount of fees (which is still pending). The fact is there was no abandonment and there simply could not have been any abandonment. Here is why….

The concern Florida Rule of Civil Procedure 1.525 was adopted to set bright-line time requirements for motions for entitlement to attorneys' fees and costs. See Amerus Life Ins. Co. v. Lait, 2 So. 3d 203 (Fla. 2009). Florida Rule of Civil Procedure 1.525 provides, “Any party seeking a judgment taxing costs, attorneys' fees, or both shall serve a motion within thirty days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal.” Ramos v. Orthodontic Centers of Florida, Inc., 893 So. 2d 663 (Fla. 4th DCA 2005).

The purpose for the thirty-day time requirement for serving such motions was “to accomplish two goals: first, to cure the ‘evil’ of uncertainty created by tardy motions for fees and costs; and second, to eliminate the prejudice that tardy motions cause to both the opposing party and the trial court.” Amerus at 205-06 (citing Barco v. School Bd. of Pinellas Cty., 975 So.2d 1116, 1123 (Fla.2008). Once the trial court determines that the prevailing party is entitled to attorneys' fees and costs, the losing party is aware that it is required to pay the fees and costs. At that point, the concerns of prejudice and uncertainty to the losing party are eliminated, thus eliminating the need to apply the thirty-day time requirement under rule 1.525. Id.

In Amerus Life Ins. Co., the trial court entered judgment and awarded the prevailing party their entitlement to fees and reserved jurisdiction specifically as to the amount in attorney’s fees and costs owed. Id. When later motions filed by the prevailing party were challenged on timeliness grounds, the Florida Supreme Court found no merit to that argument. The Supreme Court concluded that Florida Rule of Civil Procedure 1.525 does not apply when the trial court has determined entitlement to attorneys' fees and costs, despite reserving jurisdiction in order to later determine the amount in attorneys' fees and costs that is owed. (Emphasis added) Amerus Life Ins. Co. v. Lait, at 207-08.[1]

In our case, the court ruled in favor of the Defendant on April 3, 2013. No more than five (5) days later, on April 8, 2013, the Defendants’ filed their Motion for Attorney’s Fees and Costs. On July 24, 2013, the Defendants’ Motion was granted awarding them entitlement. It is important to point out that where entitlement to attorneys' fees and costs has already been determined by the trial court, further filing of motions related to fees and costs within a set amount of time, does not apply. As noted by Florida’s Supreme Court, the prevailing party, which already was granted entitlement was “not required to file its motion to determine the amount of attorneys' fees and costs within the time period set by rule 1.525.” (Emphasis added) Amerus Life Ins. Co. v. Lait, 2 So. 3d 203, 207 (Fla. 2009).

So if there is no time bar then set by procedure or case law, then one might ask what about the problems of letting the motion just “dangle” so to speak by not setting it, thereby resulting in the motion being abandoned. Abandonment over the last year received a lot of attention because of due process concerns being violated by courts looking to speed up the filing-to-judgment time frames of foreclosure cases. Whatever side of the coin you choose to be on in that debate however, the issues of ‘abandonment’ would logically not be at issue where no motion has been filed by the prevailing party to determine the amount of attorneys’ fees and costs to be awarded. Simply put, a motion which has not been filed cannot be abandoned. Further, the Supreme Court dissected Administrative Orders 3.314-4/14 of the Fifteenth Judicial Circuit, and truth be told, it appears to have been ‘voluntarily’ dialed back at this point.

The Court’s Administrative Orders themselves have carved out an exception to not prevent further re-filing of motions to determine an amount of attorneys’ fees and costs to which the Defendant here has been deemed entitled. See Bridier v. Burns, 145 Fla. 642 (Fla. 1941); Weatherford v. Weatherford, 91So.2d 179 (Fla. 1956); Department of Revenue v. Keidaisch, 670 So. 2d 1058 (Fla. 2d DCA 1996); See also SC14-2387 (noting in part that the Chief Judge maintains that a party whose motion is deemed abandoned, is not precluded from re-filing the motion). This means to say that just because a single motion was abandoned due to not being set within a timely fashion, one does NOT forgo their right to pursue those fees later by filing a supplemental motion. So therefore, a duty remains incumbent upon a court to issue a stay in these cases “where a party who has once dismissed a claim in any court of this state commences an action based upon or including the same claim against the same adverse party.” Fla. R. Civ. P. 1.420. The court “shall make such order for the payment of costs of the claim previously dismissed as it may deem proper and shall stay the proceedings in the action until the party seeking affirmative relief has complied with the order. Id. (Emphasis added). To be clear, the word “shall,” well all I can say is, it is not very suggestive…..its a command.

Till next time.


[1] The Florida Bar Civil Procedure Rules Committee unanimously agreed the purpose for adopting rule 1.525 was avoidance of prejudice and unfair surprise. The Committee also found that this is satisfied once the trial court determines entitlement to attorneys' fees and costs. The parties are on notice with the trial court's ruling on entitlement that the amount of the award will be determined at a later date. Id.

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