Schmigel v. CUMBIE CONCRETE COMPANY , 2005 Fla. App. LEXIS 19676 ( 2005 )

915 So.2d 776 (2005)

Ruby L. SCHMIGEL, Appellant,
v.
CUMBIE CONCRETE COMPANY, Appellee.

No. 1D05-1034.

District Court of Appeal of Florida, First District.

December 14, 2005.

Marie A. Mattox and James Garrity of Marie A. Mattox, P.A., Tallahassee, for Appellant.

Marsha E. Rule, Martin P. McDonnell, and Harold F.X. Purnell of Rutledge, Ecenia, Purnell & Hoffman, P.A., Tallahassee, for Appellee.

PER CURIAM.

We affirm the trial court's award of attorney's fees pursuant to sections 57.105(1)(a) and 448.104, Florida Statutes (2004). Section 57.105(4) does not provide a 21-day safe harbor when the trial court awards fees on its own initiative, as authorized by subsection (1), because subsection (4) applies only to "[a] motion by a party." Appellants cannot claim lack of notice under the facts at bar, because the trial court grounded its award upon the issue appellee raised in its motion for attorney's fees; nor can appellants claim lack of opportunity to be heard, because the trial court set forth a briefing schedule that appellants failed to utilize.

AFFIRMED.

ERVIN, DAVIS and BENTON, JJ., Concur.