By: David M. Garten, Esq.
ARTICLE: The Elimination of Rule1.525 From Contested Probate & Guardianships Proceedings – Back To The Age Of Uncertainty
Fla. R. Civ. P. 1.525 states that “any party seeking a judgment taxing costs, attorneys’ fees, or both shall serve a motion no later than 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal.” This Rule went into effect on January 2, 2001 and was created “to cure the evil” of uncertainty created by tardy motions for fees and costs and to eliminate the prejudice that tardy motions cause to both the opposing party and the courts. Because of the difficulty associated with applying this Rule to contested probate and guardianship proceedings, on September 28, 2011, Fla. Prob. R. 5.025(d)(2) was amended to exclude Rule 1.525 from these proceedings. See In re Amendments to the Fla. Probate Rules, 73 So. 3d 205 (Fla. 2011). As a result, we are now back to the pre-2001 common law rule governing time periods for filing motions for attorney’s fees and costs.
I. ATTORNEY’S FEES: In Stockman v. Downs, 573 So. 2d 835 (Fla. 1991), the Florida Supreme Court ruled that “[a] party seeking attorney’s fees pursuant to statute or contract must plead entitlement to such fees. Proof of attorney’s fees may be presented after final judgment, upon motion within a reasonable time.” [Emphasis added]. A determination of whether a post-judgment motion for attorney’s fees has been made in a reasonable time must be made based upon “all the facts and circumstances of a particular case.” See Bal Bay Realty v. Pepsomers Corp., 833 So. 2d 320 (Fla. 4th DCA 2003) citing Shipley v. Belleair Group, Inc., 759 So. 2d 28 (Fla. 2d DCA 2000). The absence of reservation of jurisdiction to award fees does not deprive the trial court of jurisdiction to entertain a post-judgment motion for attorney’s fees provided that the motion is filed within a reasonable time after entry of final judgment. See Bal Bay Realty v. Pepsomers Corp., 833 So. 2d 320 (Fla. 4th DCA 2003).
In addition to filing the motion within a reasonable time, a party must also schedule a hearing on entitlement to fees within a reasonable time after filing the motion. Once fee entitlement is determined, the party requesting the fees is entitled to an evidentiary hearing as to the reasonableness of the amount of fees. See Mihalyi v. LaSalle Bank, N.A., 162 So. 3d 113 (Fla. 4th DCA 2014). What is a reasonable amount of time within which to file your motion for fees?
REASONABLE AMOUNT OF TIME:
- Two (2) months after a final judgment. See Folta v. Bolton, 493 So. 2d 440 (Fla. 1986).
- Seven (7) months after mandate. See United States Fid. & Guar. v. Martin County, 669 So. 2d 1065 (Fla. 4th DCA 1996).
- Within three (3) months of a final judgment. See McAskill Publications, Inc. v. Keno Brothers Jewelers, Inc., 647 So. 2d 1012 (Fla. 4th DCA 1994).
- Four and one-half (4½) months after entry of the final judgment. See White v. New Hampshire Department of Employment Security, 455 U.S. 445, 102 S. Ct. 1162, 71 L. Ed. 2d 325 (1982) cited with approval in Folta v. Bolton, 493 So. 2d 440 (Fla. 1986).
- A reservation of jurisdiction to award further relief apparently allows an action to remain pending for an additional ten (10) months without prosecution pursuant to Fla. R. Civ. P. 1.420(e). See Shipley v. Belleair Group, Inc., 759 So. 2d 28 (Fla. 2nd DCA 2000).
UNREASONABLE AMOUNT OF TIME:
- Sixteen (16) months after a voluntary dismissal. See Dep’t of Legal Affairs v. Heim, 697 So. 2d 999 (Fla. 5th DCA 1997).
- Nineteen (19) months post-judgment and six (6) months post-mandate. See National Envtl. Prods. v. Falls, 678 So. 2d 869 (Fla. 4th DCA 1996).
- Over three (3) months after the trial is concluded. See Nerbonne N.V. v. Lake Bryan Int’l Props., Inc., 751 So. 2d 70 (Fla. 5th DCA 1999).
- Two (2) months after a jury verdict. See Wunderle v. Fruits, Nuts & Bananas, Inc., 715 So. 2d 325 (Fla. 2nd DCA 1998).
- Twenty-two (22) months after final judgment and after an intervening appeal. See Bass v. State Farm Life Ins. Co., 649 So. 2d 924 (Fla. 3d DCA 1995).
- Twenty-six (26) months after a voluntary dismissal. See Jaye v. Rosenbaum, 532 So. 2d 688 (Fla. 4th DCA 1988).
II. COSTS: The motion to tax costs should be made within a reasonable time. See Roberts v. Askew, 260 So.2d 492, 494 (Fla. 1972) followed Hollywood Firemen’s Pension Fund v. Terlizzese, 538 So. 2d 934 (Fla. 4th DCA 1989). A case-by-case analysis is necessary to determine a reasonable time. See Southford v. Hatton, 566 So. 2d 527 (Fla. 2nd DCA 1990); citing Roberts v. Askew, 260 So.2d 492 (Fla. 1972) and Jeffcoat v. Heinicka, 436 So.2d 1042 (Fla. 2d DCA 1983).
III. PRACTICE POINTER: The elimination of Rule 1.525 from adversary probate and guardianship proceedings does not eliminate the necessity of timely filing your motion for fees and costs within a “reasonable time”.