D'Alusio v. Gould & Lamb, LLC

36 So. 3d 842, 2010 Fla. App. LEXIS 7647, 2010 WL 2178577
CourtDistrict Court of Appeal of Florida
DecidedJune 2, 2010
DocketNo. 2D07-4426
StatusPublished
Cited by5 cases

This text of 36 So. 3d 842 (D'Alusio v. Gould & Lamb, LLC) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
D'Alusio v. Gould & Lamb, LLC, 36 So. 3d 842, 2010 Fla. App. LEXIS 7647, 2010 WL 2178577 (Fla. Ct. App. 2010).

Opinion

ORDER ON MOTION FOR REVIEW OF APPELLATE ATTORNEYS’ FEES UNDER FLORIDA RULE OF APPELLATE PROCEDURE 9.400(C)

CASANUEVA, Chief Judge.

John D’Alusio seeks review of an order awarding him $6875 in appellate attorneys’ fees after he prevailed in this appeal. D’Alusio contends that the appellate fee award was inadequate; that the trial court erred when it failed to award him interest on his fees; and that the trial court should have taxed the costs of his expert witness’s [844]*844fee. Although we find no error in the failure to award interest, we hold that the trial court abused its discretion in setting the amount of appellate fees and in failing to award D’Alusio a fee for his expert to testify at the hearing.

Background of the Case

After John D’Alusio prevailed on Gould & Lamb’s appeal of a final judgment refusing to enforce a noncompete agreement, see Gould & Lamb, LLC v. D’Alusio, 949 So.2d 1212 (Fla. 2d DCA 2007), D’Alusio set his previously filed motion for trial-level attorneys’ fees for hearing. Five days before the fee hearing, Gould & Lamb filed a notice of objection to the fees, questioning D’Alusio’s entitlement. But at the hearing, Gould & Lamb’s attorney objected to fees on a procedural ground, claiming that the fee motion, which was served before entry of the final judgment, was untimely pursuant to this court’s decisions construing a version of Florida Rule of Civil Procedure 1.525 that had been amended by the time D’Alusio filed his fee motion in the trial court. This court’s decisions on the former version of rule 1.525 — against the tide of decisions from the four other district courts of appeal — held that the window for filing a fee motion opened after the filing of the judgment and closed thirty days thereafter. See, e.g., Barco v. Sch. Bd. of Pinellas County, 946 So.2d 1244 (Fla. 2d DCA 2007), quashed, 975 So.2d 1116 (Fla.2008). The amended version of the rule, effective January 1, 2006, specifically provided 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.” Fla. R. Civ. P. 1.525 (2006) (emphasis supplied). In spite of the fact that the supreme court’s amendment of the rule called into question the authority of the Second District cases, the trial court ordered that D’Alusio’s motion for attorneys’ fees was untimely because it was filed before the judgment was rendered.

D’Alusio sought review of the trial court’s order in this appeal. During its pendency, the supreme court held that the rule set only an outside deadline for filing the attorneys’ fee motion. Barco, 975 So.2d at 1118. As D'Alusio’s motion had obviously been timely filed, Gould & Lamb appropriately conceded error. This court reversed, D’Alusio v. Gould & Lamb, LLC, 980 So.2d 1225 (Fla. 2d DCA 2008), and entered an order pursuant to rule 9.400(b) conditionally granting D’Alusio’s motion for appellate attorneys’ fees and remanding to the trial court for determination of entitlement and amount. After a hearing at which both trial and appellate fees were considered, the circuit court determined that D’Alusio was entitled to appellate fees in the amount of $6875 as well as an additional amount for trial-level fees. D’Alusio now seeks review of the order on appellate fees, contending that the amount is inadequate. We agree with his contention and reverse the order on review.

Jurisdiction — The Appellant Sought Timely Review of the Fee Order

As a preliminary matter, we must consider the timeliness of this proceeding. Rule 9.400(c) requires that “(rjeview of orders rendered by the lower tribunal under this rule shall be by motion filed in the court within 30 days of rendition.” But D’Alusio did not file a motion in this case within the thirty-day period. Rather, after his motion for rehearing was denied by the circuit court, he filed a notice of appeal of the single order that awarded him both trial and appellate fees, instituting case number 2D09-149. This court ultimately affirmed the judgment awarding trial-level attorneys’ fees in that case number on May 5, 2010.

[845]*845Even though the trial court entered a single order on both trial and appellate fees, the court’s rulings on the separate fee motions were clearly distinct and independent, contained within separate paragraphs of the order. D’Alusio should have sought review of that portion of the order addressing appellate fees by motion in this case number rather than through a separate, unrelated appeal. See Pellar v. Granger Asphalt Paving, Inc., 687 So.2d 282, 284 (Fla. 1st DCA 1997) (observing that “the correct method of seeking review of an order on appellate costs or attorney’s fees is to file a motion for review in the appellate court in the proceeding that was the subject of the award, within 30 days of rendition of the order in the lower tribunal”); Magner v. Merrill Lynch Realty/MCK, Inc., 585 So.2d 1040, 1043 (Fla. 4th DCA 1991) (holding that the failure to file a motion for review of appellate attorneys’ fees under rule 9.400(c) within thirty days of rendition waived the issue for appeal). We recognize that there exists a limited exception for review of a trial court’s order on appellate fees in a separate appeal when the appellate fee award is not the only issue on appeal. See Specialty Rests. Corp. v. Elliott, 924 So.2d 834, 838 (Fla. 2d DCA 2005); Starcher v. Starcher, 430 So.2d 991, 993 (Fla. 4th DCA 1983). However, this procedure is not favored and was adopted in the Starcher case only with “careful limitation” because the dissolution appeal presented significant issues other than the appellate fee award.

Accordingly, upon Gould & Lamb’s motion, this court dismissed that portion of case number 2D09-149 seeking review of the order on appellate fees and transferred it to this case to be considered as if the proper procedure for review had been invoked. See Pellar, 687 So.2d at 284. In doing so, we considered the motion filed as of the date of the notice of appeal in 2D09-149 but questioned whether the motion should be dismissed as untimely. Our concern was whether the filing of a motion for rehearing directed to an order on appellate attorneys’ fees is an authorized motion that can delay rendition under rule 9.020(h), which applies only to final orders of the lower tribunal. We have concluded that the order on appellate fees is essentially a final order for which a motion for rehearing can suspend rendition.

As Judge Padovano observed in Pellar, an order on appellate attorneys’ fees “has the characteristics of a final order” even though it is not “necessary or even proper” to file a notice of appeal for review. 687 So.2d at 284. Such orders appear to come within the category of post-decretal orders described by the supreme court in Clearwater Federal Savings & Loan Ass’n v. Sampson, 336 So.2d 78, 79 (Fla.1976): orders that “complete[ ] the judicial labor on that portion of the cause after judgment.” And the order on review could have been reduced to a judgment for which execution could immediately issue, although the trial court did not use such words of finality in its order. Because an order on appellate fees “constitutes a final and distinct adjudication of rights which have not been adjudicated in the original final judgment,” id., we hold that a timely motion for rehearing is authorized to suspend rendition of the order.

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Cite This Page — Counsel Stack

Bluebook (online)
36 So. 3d 842, 2010 Fla. App. LEXIS 7647, 2010 WL 2178577, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dalusio-v-gould-lamb-llc-fladistctapp-2010.