PBCBA BAR BULLETINS pbcba_bulletin_Oct. 2019 | Page 20

PROBATE CORNER
DAVID M. GARTEN
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.
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).
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).
•
•
•
•
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 •
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
Seven (7) months after mandate. See made within a reasonable time. See Roberts
United States Fid. & Guar. v. Martin v. Askew , 260 So.2d 492, 494 (Fla. 1972)
County , 669 So. 2d 1065 (Fla. 4th DCA followed Hollywood Firemen's Pension
1996).
Fund v. Terlizzese, 538 So. 2d 934 (Fla. 4th
DCA 1989). A case-by-case analysis is
Within three (3) months of a final necessary to determine a reasonable time.
judgment. See McAskill Publications, See Southford v. Hatton , 566 So. 2d 527 (Fla.
Inc. v. Keno Brothers Jewelers, Inc. , 647 2nd DCA 1990); citing Roberts v. Askew,
So. 2d 1012 (Fla. 4th DCA 1994).
260 So.2d 492 (Fla. 1972) and Jeffcoat v.
Heinicka, 436 So.2d 1042 (Fla. 2d DCA 1983).
Four and one-half (4½) months after
entry of the final judgment. See White III. PRACTICE POINTER: The elimination
v. New Hampshire Department of of Rule 1.525 from adversary probate
Employment Security, 455 U.S. 445, 102 and guardianship proceedings does not
S. Ct. 1162, 71 L. Ed. 2d 325 (1982) cited eliminate the necessity of timely filing
with approval in Folta v. Bolton, 493 So. your motion for fees and costs within a
2d 440 (Fla. 1986).
“reasonable time”.
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:
•
•
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).
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).
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