04-0500 EST. OF BRUNGART V. SMALLWOOD

State: Florida

Court: Florida Third District Court

Docket No: 04-0500 EST. OF BRUNGART V. SMALLWOOD

Case Date: 04/20/2005

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF. IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JANUARY TERM, A.D. 2005 ESTATE OF NELSON BRUNGART, Appellant, vs. SHERI SMALLWOOD and MOLLY A. ERSAY, Appellee. ** Opinion filed April 20, 2005. An Appeal from the Circuit Court for Monroe County, Richard G. Payne, Judge. Nicholas W. Mulick (Tavernier), for appellant. Sheri Smallwood (Key West), in proper person. Before GREEN, FLETCHER and SHEPHERD, JJ. SHEPHERD, J. The appellant, Estate of Nelson Brungart, appeals to this Court two orders of the Circuit Court for Monroe County which ** ** ** ** ** LOWER TRIBUNAL NO. 00-1497 CASE NO. 3D04-500

together grant attorneys' fees to Sheri Smallwood, the defendant below, under section 57.105 of the Florida Statutes. We affirm.

Appellant urges that the award must be reversed because the motion seeking fees was untimely filed by Smallwood more than 30 days from the date of the dismissal of the action. Civ. P. 1.525. See Fla. R.

Smallwood counters while that may be the case,

she is nevertheless saved from that potential error on her part because she expressly sought an award of fees under section 57.105 in her motion to dismiss. The order of dismissal did not See Saia Motor Freight However,

reserve jurisdiction to award fees.

Line, Inc. v. Reid, 888 So. 2d 102 (Fla. 3d DCA 2004).

we find that we need not reach this issue because it was not raised below and preserved for appeal. See Moss v. Moss, ---

So. 2d ---, 2005 WL 562757 (Fla. 2d DCA March 11, 2005) (holding that a failure to object to the tardiness of a motion for

attorneys' fees waives the 30-day requirement of R. 1.525). In below. all other respects, we likewise affirm the judgment

Applegate v. Barnett Bank of Tallahassee, 377 So. 2d

1150, 1152 (Fla. 1979) (affirming lower court judgment where "the record brought forward by the appellant [was] inadequate to demonstrate reversible error"). Affirmed.

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