Moving for attorneys' fees and costs: do it right and do it on time.

• Author: James, Jeffrey M.
• Position: Florida

In 2000, the Florida Supreme Court adopted Fla. R Civ. P. 1.525, which states: "Any party seeking a judgment taxing costs, attorneys' fees, or both shall serve a motion within 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal." Courts have noted that the rule's plain language was drafted and intended "to create predictability and consistency in postjudgment requests for attorneys' fees." (1) Prior to the enactment of this rule, the courts generally held that a party could file a motion for fees and costs within a reasonable time after the date the final judgment was entered. (2)

While simple on its face, Rule 1.525 has led to numerous controversies and appeals across the state. In its brief history, it has been the subject of dozens of appellate decisions issued by district courts attempting to establish the parameters of the rule's language and applicability. This rule, which was meant to bring uniformity to an area of the law which had up to that point been governed by judges' discretionary "reasonableness" inquiries, has so far accomplished just the opposite. Depending on which jurisdiction you are practicing in, the "plain language" of the rule can mean very different things.

Reservation of Jurisdiction--Does It Eliminate the Deadline?

The primary disagreement among the district courts regarding the applicability of Rule 1.525 deals with the effect of a court expressly reserving jurisdiction to resolve the issue of attorneys' fees and costs at some later date. This reservation is often included by the courts in orders granting final judgment or dismissal. Prior to the adoption of Rule 1.525, such a reservation of jurisdiction by a court would toll the time period for filing a motion for attorneys' fees and costs based on the following rationale. In Gulliver Academy, Inc. v. Bodek, 694 So. 2d 675 (Fla. 1997), the Florida Supreme Court held that time limits found in statutes entitling a party to fees and costs were procedural and thus governed by the Florida Rules of Civil Procedure. (3) Specifically, a party could invoke Rule 1.090(b) (4) to enlarge the time period in which to file an appropriate motion. (5) The court held that a reservation of jurisdiction in a final judgment is procedurally an enlargement of time under Rule 1.090(b). (6) Thus, a party could be allowed to file a motion for fees after 30 days had passed as long as the court reserved jurisdiction over the issue before the time limit for filing had expired. (7)

Following the enactment of Rule 1.525 in 2001, however, the state's district courts have been unable to uniformly reconcile the reasoning of Gulliver Academy with the plain language of the new rule. As discussed below, while the Third and Fourth districts allow reservations of jurisdiction to toll the time period, the First, Second, and Fifth districts have refused to allow such reservations, adhering to a more strict interpretation of the rule.

* The First, Second, and Fifth Districts

The Fifth District Court of Appeal was the first district court to rule on this issue after the enactment of Rule 1.525. In Wentworth v. Johnson, 845 So. 2d 296 (Fla. 5th DCA 2003), a divorce proceeding, (8) the Fifth District held that the Supreme Court's ruling in Gulliver Academy had been superseded by the rule. (9) Wentworth dealt with a motion for fees filed by the former wife after a judgment of dissolution of marriage was entered by the trial court. Prior to the trial court's order, the husband sought production of the wife's attorney's billing statements for the litigation. (10) The trial court denied the husband's request, but ordered that neither party could proceed with a claim for attorneys' fees until that party produced his or her billing records. (11) The court further reserved jurisdiction over the issue of entitlement to fees and costs. (12)

Subsequently, the parties retried various aspects of the case and a final order resolving the claims was entered on January 24, 2002. (13) At this point, neither party had produced billing records nor filed a motion for fees and costs. (14) On March 26, 2002, over 60 days after the entry of the final order, the former wife served her motion for attorneys' fees along with her billing records. (15) In response, the former husband asserted that she had failed to abide by the 30 day limit set forth in Rule 1.525. (16) The Fifth District affirmed the trial court's decision that the motion was served late under the mandatory time limit of the rule. (17) However, the appellate court held that the "excusable neglect" provision of Rule 1.090(b) still applies to the time limit in Rule 1.525, and remanded the case back to the trial court to determine if that provision entitled the wife to relief. (18) The impact of the "excusable neglect" provision is discussed below.

In an opinion filed a week after the Wentworth opinion was issued, the Second District also established a strict interpretation of the language of Rule 1.525 with regard to this issue. In Gulf Landings Association, Inc. v. Hershberger, 845 So. 2d 344 (Fla. 2d DCA 2003), the trial court reserved jurisdiction...