final until disposition of timely filed motion for rehearing.
Consolidated appeal from the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Lucy Chernow Brown,
Judge; L.T. Case No. 502011CA008243XXXXMB.
Louise Fournier, Old Saybrook, Connecticut, pro se.
Robert Shahady of Kopelowitz Ostrow Ferguson Weiselberg
Gilbert, Fort Lauderdale, for appellee.
consolidated appeal, Yvette Fournier challenges: 1) an
amended final judgment entered against her (Case 13-2611); 2)
a non-final order denying a motion for relief from the
challenged judgment (Case 13-3902); 3) a post-trial order
compelling the production of post-judgment financial
information (Case 13-3903); and 4) a final judgment for
attorney's fees and costs (Case 13-3900). We affirm the
final judgment, the order denying Appellant relief from the
judgment, and the order compelling post-judgment financial
information without further comment. We reverse the final
judgment awarding Appellee's counsel attorney's fees
and costs to the limited extent that the judgment is in favor
of Appellee's counsel, and not Appellee.
appeal stems from a lawsuit Appellee filed against Fournier
and her husband. The claim against Fournier was for unjust
enrichment. After a bench trial, the trial court entered
judgment against Fournier based on the court's finding
that she received and retained funds from Appellee which were
earmarked for repairs to real property owned by Appellee. The
court found that Appellee was entitled to damages because
Fournier and her husband never made the repairs and failed to
return the money to Appellee.
trial, Appellee moved for fees on the grounds that Fournier
rejected Appellee's valid proposal for settlement.
Following a hearing, the court determined that Appellee was
entitled to fees based on the proposal. The amount was
determined at a later hearing.
argues that the fee judgment must be vacated entirely due to
several procedural errors. We address two of those arguments.
First, Fournier asserts that Appellee was not entitled to
fees against her because he did not plead entitlement to fees
in his complaint and failed to timely serve his motion for
fees within thirty days of the rendition of final judgment as
provided by Florida Rule of Civil Procedure 1.525. Both of
these assertions lack merit.
speaking, "a claim for attorney's fees, whether
based on statute or contract, must be pled" or
entitlement is waived. Stockman v. Downs, 573 So.2d
835, 837 (Fla. 1991). The exception to this rule is when the
party otherwise has notice that their opponent claims
entitlement to attorney's fees. Id. at 838.
Here, Appellee's claim of entitlement to fees was based
on a rejected offer of judgment served pursuant to section
768.79 of the Florida Statutes. Section 768.79 provides the
proper mechanisms for establishing notice of intent to seek
attorney's fees in the event an offer of judgment is
rejected. § 768.79, Fla. Stat. (2013). Appellee complied
with these requirements by serving his proposal on Fournier
and filing a notice of service in the record.
the timeliness argument, both section 768.79(6) and Florida
Rule of Civil Procedure 1.525 provide that a party seeking
fees must file a motion within thirty days after the entry of
judgment. The Supreme Court of Florida stated in Saia
Motor Freight Line, Inc. v. Reid, 930 So.2d 598, 600
(Fla. 2006) that the thirty-day deadline for filing fee
motions is a bright-line rule and applies once a final
judgment is first entered regardless of whether it is
modified on rehearing. However, the court later clarified
that "where entitlement to attorneys' fees and costs
has already been determined by the trial court in its final
judgment, rule 1.525, requiring the filing of a motion for
fees and costs within thirty days of the final judgment,
does not apply." Amerus Life Ins. Co. v.
Lait, 2 So.3d 203, 207 (Fla. 2009) (emphasis added).
case, the original final judgment was entered on February 26,
2013. In that version of the final judgment, the court ruled
that Appellee was entitled to fees and costs from Fournier
pursuant to a written agreement between Appellee and
Fournier's husband. Accordingly, the time restraints of
Rule 1.525 did not apply to this judgment.
Amerus Life, 2 So.3d at 207. Thereafter, pursuant to
Fournier's motion, the court entered an Amended Final
Judgment on March 13, 2013. In the Amended Final Judgment,
the court "reserved jurisdiction to enter further orders
that are proper for entitlement to attorney's fees
against [Fournier]." By reserving on the issue of
entitlement to fees, this version of the judgment triggered
the time implications of Rule 1.525. Appellee then properly
filed his motion for entitlement to fees and costs against
Fournier on April 9, 2014, within the thirty-day window.
Fournier argues that the fee judgment is void because it was
entered in favor of Appellee's attorney, who was not a
party to the proceedings. The fee judgment against Fournier
was entered pursuant to Florida's offer of judgment
statute, section 768.79, which provides, in pertinent part:
If a plaintiff serves an offer which is not accepted by the
defendant, and if the judgment obtained by the plaintiff is
at least 25 percent more than the amount of the offer,
the plaintiff shall be awarded reasonable costs,
including investigative expenses, and attorney's fees,
calculated in accordance with the guidelines ...