Margaret M. Finnegan, as the of the Estate of Ellen Donlon v. Noreen Compton, as Personal Representative of the Estate of Fredrick LaChance

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2014
MARGARET M. FINNEGAN,
as Executor of the Estate of ELLEN DONLON,
Appellant,
v.
NOREEN COMPTON, as Personal Representative
of the Estate of FREDRICK LaCHANCE,
Appellee.
No. 4D13-4213
[November 19, 2014]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Martin H. Colin, Judge; L.T. Case No.
502009CP003949XXXXSB.
Amy J. Fanzlaw of Osborne & Osborne, P.A., Boca Raton, for appellant.
No brief filed for appellee.
GROSS, J.
We affirm the order denying appellant’s motion for attorney’s fees
because appellant failed to comply with Florida Rule of Civil Procedure
1.525 after the entry of a final judgment that did not determine entitlement
to attorney’s fees.
On November 4, 2010, the circuit court entered an agreed order
approving a settlement agreement between the parties to a will contest.
The agreement obligated appellee to pay $40,000 by December 31, 2010;
failure to pay entitled appellant to obtain a final judgment as well as a lien
on appellee’s condominium. The settlement agreement contained an
attorney’s fee provision “[i]f any legal action” was “brought for the
enforcement” of the agreement. The November 4 order reserved
jurisdiction to enforce the terms of the settlement agreement.
Appellee failed to make payment by December 31 and appellant
obtained a final judgment under the settlement agreement on January 5,
2011. The final judgment retained jurisdiction “in order to enter further
orders as are proper” but did not specifically mention attorney’s fees.
Appellee made the $40,000 payment on August 13, 2012. On
September 7, 2012, appellant filed a motion seeking $67,466.16 in
attorney’s fees under the settlement agreement. The trial court denied the
motion for fees.
We affirm the trial court’s denial of fees because there was neither a
timely motion for attorney’s fees under Florida Rule of Civil Procedure
1.525 nor did the January 5, 2011 final judgment determine entitlement
to attorney’s fees.
Appellant relies on Paulucci v. General Dynamics Corp., 842 So. 2d 797,
803 (Fla. 2003), to argue that when “a court incorporates a settlement
agreement into a final judgment . . . and retains jurisdiction to enforce its
terms, the court has the jurisdiction to enforce the terms of the settlement
agreement.” However, the question here is not one of jurisdiction, but of
procedure—whether appellant complied with Rule 1.525 in seeking fees.
Rule 1.525 provides that “[a]ny party seeking a judgment taxing costs,
attorneys’ fees, or both shall serve a motion no later than 30 days after
filing of the judgment . . . which judgment . . . concludes the action as to
that party.” (Emphasis added). “Prior to the adoption of rule 1.525, the
general rule was that a party seeking attorneys’ fees and costs had to file
a motion within a ‘reasonable time’ after entry of a judgment.” Amerus Life
Ins. Co. v. Lait, 2 So. 3d 203, 205 (Fla. 2009). By adopting Rule 1.525, the
Florida Supreme Court sought to “establish[] a bright-line time
requirement for motions for costs and attorney fees which the Rules of
Civil Procedure had not previously contained.” Saia Motor Freight Line,
Inc. v. Reid, 930 So. 2d 598, 600 (Fla. 2006) (footnote omitted); Borroto v.
Garcia, 103 So. 3d 186, 188 (Fla. 3d DCA 2012). The Rule’s purpose 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.”
Barco v. Sch. Bd. of Pinellas Cnty., 975 So. 2d 1116, 1123 (Fla. 2008) (citing
Norris v. Treadwell, 907 So. 2d 1217, 1218 (Fla. 1st DCA 2005)).
To date, courts have recognized two scenarios satisfying Rule 1.525’s
constructs. The first, obviously, is where the party seeking attorney’s fees
complies with the rule by filing its motion within thirty days of the filing of
the judgment. The second is “when the trial court has already, in the
judgment, determined entitlement to attorney’s fees as part of the relief
granted to the prevailing party.” Kalb v. Nack Holding, LLC, 79 So. 3d 175,
176 (Fla. 3d DCA 2012); Ramle Int’l Corp. v. Greens Condo. Ass’n, 32 So.
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3d 647, 647-48 (Fla. 3d DCA 2010). The justification for the second
scenario is that “[i]f a party already has a judgment granting attorney’s
fees and costs, it would appear superfluous to require such a party to file
a motion seeking to tax them again. The court has, in essence, already
ruled to tax them and all that remains is a determination of the reasonable
amount.” Hart v. City of Groveland, 919 So. 2d 665, 669 (Fla. 5th DCA
2006); Amerus, 2 So. 3d at 207.
The appellant in this case essentially requests this court to create an
exception to Rule 1.525 where an order approving a settlement agreement
generally reserves jurisdiction to enforce the agreement’s provisions and
one of the provisions pertains to attorney’s fees. However, doing so would
gut Rule 1.525 by allowing a party—as was done in this case—to wait
months, if not years, before claiming entitlement to attorney’s fees. Since
many final judgments reserve jurisdiction to enforce their terms, to create
an exception to rule 1.525 in this case would be to nullify the rule’s
application in many cases.
Affirmed.
DAMOORGIAN, C.J. and STEVENSON, J., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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