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Post-judgment motions for attorneys' fees: time for a bright-line rule.

An important and recurring issue in civil litigation is how soon after final judgment must a prevailing litigant file a motion for attorneys' fees in the trial court. In general, a fees motion must be filed within a "reasonable time" following entry of judgment.(1) Florida courts have reached dramatically different results, however, regarding what constitutes a "reasonable time," particularly in cases where a motion is filed after the conclusion of an appeal of the final judgment. The confused state of the law creates unpredictability and has prompted one appellate court to implore the Florida Supreme Court to adopt a clarifying procedural rule.(2) This article reviews the current state of Florida precedents and proposes a rule of civil procedure to bring greater certainty to this area of the law.

Background

Due to fee-shifting provisions,(3) postjudgment motions for attorneys' fees are increasingly commonplace. Based upon judicially created principles, a motion for attorneys' fees must be filed in the trial court within a "reasonable time" after the entry of final judgment.(4) The question of what is a "reasonable time" to file a post-judgment motion for attorneys' fees has arisen in a number of civil cases in Florida.(5) In Folta v. Bolton, 493 So. 2d 440, 444 (Fla. 1986),(6) the Florida Supreme Court has held that a motion for attorneys' fees filed two months after entry of final judgment is timely. At the other extreme, the Third District has held that a motion for attorneys' fees filed approximately 22 months after final judgment and after an intervening appeal was untimely.(7) In between, the Fourth District has held that a motion filed over a year after final judgment had been entered, and after an intervening appeal was concluded, was timely.(8)

As these cases indicate, no bright-line method for determining what is a reasonable time has developed. Instead, courts have taken a case-by-case approach in analyzing whether a motion is filed in a timely manner. This ad hoc approach, however, has led to conflicting results particularly in cases where a prevailing litigant files a motion for attorneys' fees after the conclusion of an appeal from the final judgment. This conflict is most apparent in recent decisions of the Fourth District.

* District Court Confusion

A general principle is that a motion for attorneys' fees must be filed in the trial court within a reasonable time after final judgment.(9) A corollary to this general principle is that a motion for fees should be filed soon after judgment, even where an appeal is taken. A prevailing litigant who awaits the outcome of an appeal before filing a motion for fees, therefore, risks a judicial finding of untimeliness and a denial of requested fees. For example, the Third District in Bass v. State Farm Life Insurance Company, 649 So. 2d 924 (Fla. 3d DCA 1995), held that a motion for fees filed after remand from an intervening appeal (and 22 months after final judgment) was untimely.(10) Because the motion "for trial court attorneys' fees was not filed within a reasonable time, . . . the trial court properly denied [the plaintiff's] motion for trial court attorneys' fees."(11)

This principle and corollary have been tested in a string of recent Fourth District decisions, which reflect the current confusion regarding the timeliness of post-judgment motions for attorneys' fees when an appeal is taken. In its 1994 decision in McAskill Publications, Inc. v. Keno Brothers Jewelers, Inc., 647 So. 2d 1012 (Fla. 4th DCA 1994), a Fourth District panel addressed the limits of what is a reasonable time for filing a motion for attorneys' fees when an intervening appeal is taken. The movant in McAskill did not initially file a motion for fees in the trial court (the county court),(12) but instead filed in the appellate court (the circuit court) about three months after an appeal from the final judgment had been initiated. The appellate court did not rule on this first motion until after its mandate issued, so the movant then filed a second motion (again in the appellate court) seven months after the mandate had issued. The second motion was also not ruled upon. On remand, however, the trial court awarded fees (despite no motion having been filed in that court).(13)

The Fourth District panel in McAskill reversed the fee award. After recounting the movant's various missteps, the court held that the initial post-judgment motion for fees was not filed within a reasonable time.(14) The court noted that federal trial courts had discretion to determine what time is reasonable, and that one appellate court (prior to the adoption of a federal rule in 1993) had recommended "a uniform rule with a maximum of 21 days."(15) Where an intervening appeal is taken, the Fourth District concluded that "a trial court generally should not grant a post-judgment motion for attorneys' fees filed almost three months after the judgment on the merits because of `unreasonable tardiness."(16)

The precedential value of this language in McAskill, if any, was not long-lived. In United States Fidelity & Guaranty v. Martin County, 669 So. 2d 1065 (Fla. 4th DCA), rev. denied, 679 So. 2d 774 (Fla. 1996), the Fourth District reversed a trial court's ruling that a motion filed over a year after final judgment had been entered, and after an intervening appeal was concluded, was untimely. In Martin County, the appellant (USF&G) waited until the end of the appeals process before first moving for attorneys' fees in the trial court. The county opposed USF&G's motion on a number of grounds including its untimeliness. In ruling for the county, the trial court held that USF&G's motion was untimely. Although its final judgment reserved jurisdiction to consider the issue of attorneys' fees, the trial court had noted that the "problem that arises in this matter is that [USF&G] did not actually seek fees in this case until more than one year after the entry of the final judgment."(17) USF&G appealed the trial court's ruling.

The Fourth District reversed and held that the "trial court erred by denying the motion for attorneys' fees on the ground that it was not brought within a reasonable time."(18) The court's rationale was based, in large measure, on the theory that so long as the county was on notice that USF&G might file a motion for attorneys' fees at some point in the action, the filing of a motion over a year after final judgment and after an intervening appeal was neither untimely nor prejudicial. Thus, despite USF&G's delay in waiting until after the first appeal was concluded before filing its motion for fees, the court opined there "was no surprise to the county that USF&G would ask for fees" because the trial court had reserved jurisdiction to consider attorneys' fees.(19)

It bears emphasis, however, that the trial court's order merely reserved jurisdiction to consider the attorneys' fees issue and did not authorize any extension or delay in USF&G's filing of a timely motion for fees. Rather, USF&G made the unilateral and voluntary decision to await the outcome of the appeal before filing its motion.(20) Nonetheless, the Fourth District accepted the position that a party is entitled to wait until the conclusion of the appeals process before filing its initial motion for trial attorneys' fees in the trial court over a year after final judgment.

Further confounding matters, the panel in Martin County rejected language in McAskill regarding the timeliness of attorneys' fees motions as nonbinding dicta. Specifically, the Martin County panel declined to accept the statement in McAskill that "a trial court generally should not grant a postjudgment motion for attorneys' fees filed almost three months after the judgment on the merits because of `unreasonable tardiness.'"(21) In addition, the panel rejected the policy argument that piecemeal appeals should be avoided by requiring attorneys' fees issues to be assessed shortly after judgment.(22)

The confusion in the Fourth District is further heightened by the recent decision in National Environmental Products, Ltd. v. Falls, 678 So. 2d 869 (Fla. 4th DCA 1996). In Falls, a final judgment was entered against National Environmental Products (NEP). The judgment reserved jurisdiction as to costs but was silent as to fees. After the appellate court affirmed the judgment, Falls--as the prevailing party--filed a motion for attorneys' fees and costs for the first time in the trial court. The motion, which did not expressly mention [sections] 57.105 as a basis for fees, was filed 19 months after the final judgment and six months after the appellate mandate had issued. The trial court held a hearing and ruled that NEPs action against Falls was frivolous. The court awarded over $10,000 in fees pursuant to [sections] 57.105.

On appeal, the Fourth District reversed the trial court because the motion was not timely filed after judgment. The appellate court first noted that Falls' failure to plead entitlement to [sections] 57.105 fees prior to final judgment was not fatal to his claim.(23) The court noted, however, that sparse guidance existed to determine how long a party may wait after a case is ended before moving for fees under [sections] 57.105. The court reviewed existing precedents (including McAskill, but not Martin County or Bass) and concluded that--based on the timeframes deemed reasonable in those cases--the "time periods involved here far exceed a reasonable time and that the delay constitutes unfair surprise to NEP."(24) The court stated that "[n]ineteen months postjudgment and six months post-mandate is presumptively unreasonable, and it would be incumbent upon the movant to demonstrate special or extenuating circumstances. None have been raised."(25)

The court further noted practical reasons for a party to "promptly move" for [sections] 57.105 fees.(26) First, a "trial court is in a far better position to assess the issue of frivolousness shortly following the conclusion of the litigation rather than months--or in this case over a year and a half--later."(27) Second, the appellate court is in a better position to assess the award "in tandem with the merits of the underlying appeal."(28) Third, waiting to the conclusion of litigation "only serves to prolong litigation further."(29) Importantly, the court noted that the "timely disposition of a motion for [sections] 57.105 attorneys' fees, either for or against the losing party, may affect settlement of the underlying lawsuit and the decision to pursue an appeal."(30)

Finally, the court emphasized that after litigation is concluded, the losing party should have some assurance that fees are not being sought. An unreasonable delay in seeking fees disserves this interest and is tantamount to placing all parties on "perpetual notice" that fees may be awarded, thereby creating the possibility of surprise and prejudice.(31)

Of particular note, the Fourth District in Falls recommended that a uniform rule of procedure be adopted to eliminate the confusion currently existing in the appellate courts:

We would suggest that our supreme court consider enactment of a uniform rule of procedure to answer definitively what constitutes a reasonable time post-judgment in which a prevailing party must file a motion for section 57.105 attorneys' fees. There are time limits for almost every other type of post-judgment motion. We see no reason why there should be an open-ended timeframe for post-judgment motions seeking 57.105 attorneys' fees.(32)

The need for a bright-line rule is evident. Practitioners who review the Fourth District's decisions in Falls, Martin County, and McAskill--as well as the Bass and Folta decisions--are presented with diametrically opposing positions on when a motion for attorneys' fees must be filed. In some instances, a party can wait indefinitely so long as the appellate process progresses; in others, a party must file a motion in the trial court within no more than three to four months of the final judgment. The lack of uniformity and apparent inconsistency makes the potential for uncertainty and unfairness apparent.

Principles Underlying a Bright-Line Rule

Due to the inconsistency and uncertainty of Florida's judicial precedents, a bright-line rule that sets specific timeframes for motions for trial attorneys' fees makes sense. A specific deadline eliminates much of the guesswork inherent in open-ended tests based on "reasonableness."

One of the important principles supporting a bright-line rule is predictability. In this regard, title rule should require the actual filing of a motion in the trial court within a definite time shortly after entry of final judgment.(33) The filing of a motion, of course, provides notice that the movant intends to pursue a claimed entitlement to fees. Timely filing of post-judgment motions for fees also advances important goals, as recognized in the federal rules:

Prompt filing affords an opportunity for the court to resolve fee disputes shortly after trial, while the services performed are freshly in mind. It also enables the court in appropriate circumstances to make its ruling on a fee request in time for any appellate review of a dispute over fees to proceed at the same time as review on the merits of the case.(34)

In furtherance of these interests, Rule 54(d)(2) of the Federal Rules of Civil Procedure requires that a motion for attorneys' fees must be filed within 14 days after entry of judgment, unless otherwise provided by statute or court order.(35)

Opponents to a bright-line rule might argue that pleading entitlement to fees (or permitting trial courts to reserve general jurisdiction to later consider attorneys' fees motions) sufficiently safeguards litigants from possible prejudice or surprise. This position is facially meritorious, but diminishes upon closer analysis.

First, by pleading entitlement to fees, a party simply provides notice that it might later seek attorneys' fees. Pleading entitlement to fees, of course, is merely a generally applicable precondition to later pursuing such fees after judgment.(36) Pleading entitlement at the early stages of litigation is an initial "shot across the bow," but it is not equivalent to an actual motion seeking such fees post-judgment. Notice at the beginning and the end of litigation serves different purposes. In general, the former informs the opposing party that fees may be a possible element of recovery under substantive law; the latter ensures that the factual and legal grounds for fees are timely presented for the opposing party's consideration (which can affect settlement of the underlying lawsuit and whether to pursue an appeal) and the trial court's resolution.

Second, trial courts have inherent authority to consider timely motions for attorneys' fees even without an explicit reservation of jurisdiction. The Florida Supreme Court has held that a "post-judgment motion for attorneys' fees raises a `collateral and independent claim' which the trial court has continuing jurisdiction to entertain within a reasonable time"--even if the final judgment did not expressly reserve jurisdiction to award fees.(37) Likewise, the court in McAskill(38) stated: "While [the trial-court judgment on the merits] did not reserve jurisdiction to award an attorneys' fee to the prevailing party, it was unnecessary for it to do so because any post-judgment motion for attorneys' fee [sic] would raise a `collateral and independent claim.'"(39)

Of course, in appropriate cases, a trial court may wish to extend the time for parties to file motions for attorneys' fees or to hold attorneys' fees hearings in abeyance until after the appellate process is concluded. In general, however, a bright-line rule that provides clear guidance in all other cases is warranted to promote predictability.

In this regard, an immediate benefit of requiring litigants to actually file motions in the trial court within a designated time after final judgment is greater certainty. The filing of a motion crystallizes the movant's intention to pursue fees and thereby provides the definitive notice that a general reservation of jurisdiction does not afford. As the court in Falls recognized, the timely filing and disposition of a motion for attorneys' fees--whether for or against the losing party--can have a substantial effect on settlement of the underlying lawsuit, as well as whether to pursue an appeal in the first instance.(40) A motion places the entitlement to attorneys' fees at issue and provides the necessary predicate for resolving the motion or deferring it to a later time.

Proposed Rule 1.555, Florida Rules of Civil Procedure

The following proposed rule is based, to a substantial extent, on Rule 54(d) of the Federal Rules of Civil Procedure, which was amended in 1993 to provide a formal structure for attorneys' fees motions:(41)

Rule 1.555. Attorneys' Fees.

Claims for attorneys' fees and related nontaxable expenses shall be made by motion unless the substantive law governing the action provides for the recovery of such fees as an element of damages to be proved at trial. Unless otherwise provided by statute or order of court, the motion must be filed and served no later than 21 days after entry of judgment; must specify the judgment and the statute, rule, or other grounds entitling the moving party to the award; and, must state the amount or provide a fair estimate of the amount sought. If directed by the court, the motion shall also disclose the terms of any agreement with respect to fees to be paid for the services for which claim is made. Entry of judgment shall not be delayed, nor the time for appeal extended, in order to award attorneys' fees.

Like its federal counterpart, the proposed rule provides a deadline for the filing (and serving) of an attorneys' fees motion. This deadline has the salutary effect of promoting more informed decisionmaking by providing for an explicit request for (and estimate of) fees.

A 21-day period is recommended (rather than Rule 54's 14-day period) for two reasons. First, one purpose of a definite filing deadline "is to assure that the opposing party is informed of the claim before the time for appeal has elapsed."(42) In most Florida civil cases, a notice of appeal must be filed within 30 days of rendition of the final judgment.(43) Attorneys' fees motions filed 21 days after judgment, therefore, will inform parties of the movant's intent to seek fees within the deadline for seeking appellate review. Second, the federal rule's 14-day period may be insufficient for the movant to compile the necessary information to provide the amount or fair estimate of fees to be included in the motion. Although movants need not fully support their motions with evidentiary materials at the time of filing, a 21-day period should provide an adequate period within which most movants can compile and analyze documents bearing on the amount of fees sought. For these two reasons, a 21-day period is suggested.

Of course, other defensible time periods exist. For instance, a period in excess of 30 days may be justifiable if requiring motions to be filed prior to the appellate deadline has little or no effect on the number of appeals filed or resolved. Such a period may also be justified if the administrative burden of compiling information in a 21-day period is sufficiently onerous. The time period ultimately chosen will necessarily balance the goals of prompt notice and administrative feasibility so that the hoped-for effect of promoting resolution of litigation is achieved.

Next, the proposed rule does not affect the finality or appealability of the judgment. The reason is that motions for attorneys' fees do not toll the rendition of a final judgment for appellate purposes under Florida law.(44) Furthermore, unlike the federal rules,(45) the proposed rule does not provide a mechanism for suspending the finality of a judgment to resolve a motion for attorneys' fees. It does, however, recognize that a trial court may decide to defer the attorneys' fees issue in appropriate cases, particularly where an appeal is taken. Rule 54's advisory committee notes address this issue:

If an appeal on the merits of the case is taken, the court may rule on the claim for fees, defer its ruling on the motion, or may deny the motion without prejudice, directing ... a new period for filing after the appeal has been resolved. A notice of appeal does not extend the time for filing a fee claim based on the initial judgment, but the court ... may effectively extend the period by permitting claims to be filed after resolution of the appeal.(46)

Under the proposed rule, the trial court is in the best position to manage attorneys' fees claims. The prompt filing of formal (and informative) motions will allow for their immediate consideration or deferral, as the trial court deems appropriate.(47)

Finally, the proposed rule will not apply to statutory attorneys' fees provisions that provide their own filing deadlines. For instance, under Florida's offer of judgment statute, a motion for attorneys' fees must be made within 30 days of entry of judgment.(48) This 30-day statutory provision, rather than the proposed rule's 21-day provision, would apply in situations involving this particular statute. The proposed rule will apply, however, where a statute does not provide a specific filing deadline.(49)

In summary, the proposed rule addresses the primary areas of uncertainty that currently exist in Florida appellate decisions. Much like its federal counterpart, the proposed rule requires "the filing of a motion sufficient to alert the adversary and the court that there is a claim for fees, and the amount of such fees (or a fair estimate)."(50) It is anticipated that the rule will provide parties with greater guidance and promote more efficient administration of attorneys' fees claims.

Conclusion

The timeliness of post-judgment motions for attorneys' fees is of immense practical concern to bench and bar alike for whom clear guidance is essential. The Florida Supreme Court has mandated that a motion for attorneys' fees must be filed in the trial court within a "reasonable time" after entry of final judgment. Subsequent precedents, however, have created anxiety regarding what constitutes a timely motion thereby justifying further guidance. This article suggests a procedural rule, much like its federal counterpart, that requires the prompt filing of motions for attorneys' fees after the entry of final judgment. The Florida Supreme Court should consider adopting the proposed rule, or one substantially similar, as a means of alleviating the current uncertainty.

(1) Stockman v. Downs, 573 So. 2d 835, 838 (Fla. 1991).

(2) National Environmental Products, Ltd. v. Falls, 678 So. 2d 869 (Fla. 4th D.C.A. 1996). The Florida Supreme Court may adopt rules of practice and procedure either on the court's own motion or pursuant to a petition filed by either The Florida Bar or a committee specially designated by the court. Section II(F), SUPREME COURT MANUAL OF INTERNAL OPERATING PROCEDURES (1996).

(3) Under the so-called American Rule, litigants incur their own attorneys' fees unless shifted to nonprevailing parties by statute or contract. Florida Patient's Compensation Fund v. Rowe, 472 So. 2d 1145, 1148 (Fla. 1985). Fee-shifting provisions--whether statutory or by agreement of the parties--alter the American Rule by shifting the prevailing party's attorneys' fees to the nonprevailing party. See TGI Friday's, Inc. v. Dvorak, 663 So. 2d 606, 611 (Fla. 1995) (discussing FLA. STAT. [sections] 768.79).

(4) See, e.g., Stockman v. Downs, 573 So. 2d 835, 838 (Fla. 199 1); McAskill Publications, Inc. v. Keno Bros. Jewelers, Inc., 647 So. 2d 1012 (Fla. 4th D.C.A. 1994).

(5) It bears emphasis that Florida courts have uniformly required that a motion actually be filed in the trial court without regard to whether the movant has already pleaded entitlement to fees at the outset of the litigation. See, e.g., Stockman v. Downs, 573 So. 2d 835, 837 (Fla. 1991) ("Proof of attorneys' fees may be presented after final judgment upon motion within a reasonable time.") (emphasis added); Folta v. Bolton, 493 So. 2d 440, 444 (Fla. 1986) ("motion for attorneys' fees, filed approximately two months after entry of final judgment, was filed within a reasonable time.") (emphasis added); Bass v. State Farm Life Ins. Co., 649 So. 2d 924 (Fla. 3d D.C.A. 1995) (trial court properly denied as untimely a motion for attorneys' fees filed after appeal approximately 22 months after final judgment.); McAskill Publications, Inc. v. Keno Bros. Jewelers, Inc., 647 So. 2d 1012, 1013 n.1 (Fla. 4th D.C.A. 1994) (trial court should not grant motion for attorneys' fees filed almost three months after final judgment).

(6) The court in Folta based its conclusion on White v. New Hampshire Dept of Emp. Sec., 455 U.S. 445 (1982), in which the U.S. Supreme Court held that motion filed four and one-half months after entry of final judgment was within a reasonable time. Since White was decided in 1982, the Federal Rules of Civil Procedure have been amended to require that a motion for attorneys' fees "must be filed and served no later than 14 days after entry of judgment[.]" FED. R. CIV. P. 54(d)(2)(B) (1996).

(7) Bass, 649 So. 2d 924; see also Jaye v. Rosenbaum, 532 So. 2d 688 (Fla. 4th D.C.A. 1988) (reversing award of attorneys' fees where movant first sought fees 26 months after being voluntarily dismissed).

(8) U.S. Fidelity & Guar v. Martin County, 669 So. 2d 1065 (Fla. 4th D.C.A.), rev. denied, 679 So. 2d 774 (Fla. 1996).

(9) Stockman v. Downs, 573 So. 2d 835, 837 (Fla. 1991).

(10) Bass, 649 So. 2d at 926. The movant in Bass initially filed a timely motion for fees under offer of judgment provisions, but this motion was denied (and affirmed on appeal). On remand, a second motion was filed based upon an attorneys 'fee statute not mentioned in the initial motion. In affirming the trial court's denial of this motion, the Third District ruled that the plaintiffs post-remand motion "was not made within a reasonable time." Id. at 925. Instead, the statutory basis for fees should have been raised in the movant's initial motion. The Third District also upheld the trial court's ruling that the movant's offer of judgment failed to comply with the offer of judgment rule, FLA. R. CIV. P. 1.442 Id.

(11) Id. at 925-26.

(12) McAskill, 647 So. 2d at 1012-13.

(13) Id. at 1013.

(14) Id. at 1012-13.

(15) Id. (footnote omitted). Rule 54(d)(2) of the Federal Rules of Civil Procedure was adopted in 1993 to provide a uniform 14-day period, unless the court or a statute specifies a different time.

(16) McAskill, 647 So. 2d at 1013.

(17) Martin County, Record on Appeal, Order dated March 1, 1995.

(18) Martin County, 669 So. 2d at 1068.

(19) Id. at 1067.

(20) The court commended USF&G's decision to delay. "By waiting until after the determination of the appeal, USF&G avoided the possibility of wasting the trial court's time and that of the attorneys for the parties." Id. at 1068.

(21) Id. at 1066 (quoting McAskill).

(22) Id. at 1067-68.

(23) The court noted that the Florida Supreme Court has held that a party seeking [sections] 57.105 fees is "exempt" from the requirement in Stockman v. Downs that statutory fees must be specifically pleaded prior to the conclusion of the litigation. Falls, 678 So. 2d at 870 (citing Ganz v. HZJ, Inc., 605 So. 2d 871 (Fla. 1992)).

(24) Falls, 678 So. 2d at 871.

(25) Id.

(26) Id.

(27) Id.

(28) Id.

(29) Id.

(30) Id.

(31) Id. at 871-72.

(32) Id. at 872.

(33) Prompt filing should be required whether the fees sought are based on statutory or contractual fee-shifting provisions. In particular, although fee requests under [sections] 57.105 need not be pleaded prior to the end of litigation, such requests for trial court fees should be made promptly after entry of final judgment. Falls, 678 So. 2d at 871-72 (noting that Ganz "does not address how long after the case is ended a motion can be filed.").

(34) FED. R. CIV. P 54(d)(2)(B) (1995) (Advisory Committee Note). As the U.S. Supreme Court in White noted:

"[T]he [trial] courts generally can avoid piecemeal appeals by promptly hearing and deciding claims for attorneys' fees. Such practice normally will permit appeals from fee awards to be considered together with any appeal from a final judgment on the merits."

White, 455 U.S. 4459 454 (1982).

In [sections] 57.105 cases, the "merits" of a main appeal will typically be intertwined with the issue of whether there was a "complete absence of a justiciable issue of either law or fact" underlying the "merits." The seminal Florida Supreme Court case interpreting [sections] 57.105 arose precisely in this manner. See, e.g., Whitten v. Progressive Cas. Ins. Co., 410 So. 2d 501 (Fla. 1982) (consideration of merits and [sections] 57.105 issues concurrently).

(35) FED. R. CIV. P. 54(d)(2)(B) (1995) (Advisory Committee Note). Unlike motions under Rule 54(d)(2)(B), motions for sanctions under federal Rule 11 need not be filed following final judgment but instead ordinarily "should be served promptly after the inappropriate paper is filed, and, if delayed too long, may be viewed as untimely." Id. Rule 11 (Advisory Committee Notes, 1993 Amendments).

(36) Stockman v. Downs, 573 So. 2d 835, 837 (Fla. 1991) ("a claim for attorneys' fees, whether based on statute or contract, must be pled. The fundamental concern is one of notice."). The Supreme Court noted an exception from this general rule where the opposing party "fails to object to the failure to plead entitlement." Id. at 838. Another exception is that [sections] 57.105 fees need not be pleaded prior to the end of litigation because such claims may not become apparent until a case has been concluded. Ganz v. HZJ, Inc., 605 So. 2d 871, 872 (Fla. 1992). Litigants seeking [sections] 57.105 fees, however, must nonetheless file a motion with a reasonable time post-judgment. Falls, 678 So. 2d at 87 172.

(37) Finkelstein v. North Broward Hosp. Dist., 484 So. 2d 1241, 1243 (Fla. 1986) (trial court has jurisdiction to consider motion for attorneys' fees filed three days after entry of final judgment).

(38) McAskill, 647 So. 2d 1012 (Fla. 4th D.C.A. 1994)

(39) Id. at 1013 n. 1 (quoting Finkelstein) (emphasis added).

(40) Falls, 678 So. 2d at 871-72.

(41) See FED. R. CIV. P. 54(d) (1996). The last sentence of the proposed rule is based on a portion of Rule 58 of the Federal Rules of Civil Procedure, which--unlike the proposed rule--permits trial courts to treat motions for attorneys' fees as motions which toll the time for appeal.

(42) FED. R. CIV. P. 54 (1996) (Advisory Committee Notes, 1993 Amendments).

(43) See, e.g., FLA. R. APP. P. 9.110(b) (1996) (review of final orders of lower tribunals).

(44) FLA. R. APP. P. 9.020(g) (1996).

(45) FED. R. CIV. P. 58 (1996) (providing that trial court may, prior to the filing of a notice of appeal, order that an attorneys' fees motion have the effect of tolling the time for appeal under Rule 4(e)(4) of the Federal Rules of Appellate Procedure).

(46) Id.

(47) Notably, at least one statutory attorneys' fees provision states that a prevailing party is entitled to fees and costs "after judgment in the trial court and exhaustion of all appeals, if any" thereby implicitly permitting fee requests to be made post-appeal. FLA. STAT. [sections] 501.2105 (1995); Jeffcoat v. Heinicka, 436 So. 2d 1042 (Fla. 2d D.C.A. 1983) (filing of motion two months post-judgment not unreasonable under [sections] 501.2105).

(48) FLA. STAT. [sections] 768.79(6) (1995).

(49) A number of statutes provide for prevailing party attorneys' fees. See, e.g., FLA. STAT. [sections] 448.08 (1995) (fees for successful litigants in unpaid wages actions); FLA. STAT. [sections] 501.621 (1995) (fees for successful litigants under Florida Telemarketing Act); FLA. STAT. [sections] 517.211 (1995) (fees for prevailing party under Florida Securities and Investor Protection Act); FLA. STAT. [sections] 559.921 (1995) (fees for prevailing party under Florida Motor Vehicle Repair Act); FLA. STAT. [sections] 641.28 (1995) (fees for prevailing party in health maintenance organization contract actions); and FLA. STAT. [sections] 688.005 (1995) (fees for prevailing party in bad faith or willful trade secret act litigation).

(50) FED. R. CIV. P. 54 (1996) (Advisory Committee Notes, 1993 Amendments).

Scott D. Makar is an attorney in the Jacksonville and Tallahassee offices of Holland & Knight, whose practice includes trial and appellate litigation, and administrative and legislative matters. He received his J.D., M.A., and Ph.D. in economics, and M.B.A. in finance from the University of Florida. Mr. Makar clerked for Judge Thomas A. Clark of the U.S. Court of Appeals for the 11th Circuit in 1988-89.
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Title Annotation:Florida
Author:Makar, Scott D.
Publication:Florida Bar Journal
Date:Feb 1, 1997
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