04-1087 BRAY V. GRABOWSKI

SUPREME COURT CASES

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State: Florida

Court: Florida Third District Court

Docket No: 04-1087 BRAY V. GRABOWSKI

Case Date: 12/29/2004

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 JULY TERM A.D., 2004 JOHN BRAY and ELIZABETH BRAY, Appellants, vs. ** ** ** CASE NO. 3D04-1087

CHESTER GRABOWSKI and STEPHEN S. ** RICE, individually and as Trustee of THE STEPHEN S. RICE ** LIVING TRUST, ** Appellees. Opinion filed December 29, 2004.

LOWER TRIBUNAL NO. 00-1559

An Appeal from the Circuit Court for Miami-Dade County, Richard G. Payne, Judge. Browning, Sireci, P.A., and Charlene G. Guller (Key West), for appellants. Wayne appellees. Larue Smith and Seth D. Corneal (Key West), for

Before GERSTEN and FLETCHER, JJ., and HARRIS, Charles M., Senior Judge. PER CURIAM.

This appeal challenges the award of attorneys fees when there had been no motion for attorneys fees made within the thirty-day period required by Rule 1.525, Florida Rules of Civil Procedure, following the notice of voluntary dismissal, when

there was no reservation of jurisdiction within that thirty-day period and no showing of excusable neglect which would relieve the claimant from complying with the rule. The Fourth District Court of We reverse. has waived the

Appeal

requirements of Rule 1.525 when the reservation of jurisdiction to consider attorneys fees was a part of the final judgment and thus "extend[ed] the time for filing a motion for attorneys fees." See Fisher v. John Carter & Assocs., Inc., 864 So. 2d Fisher acknowledged that had the

493, 496 (Fla. 4th DCA 2004).

reservation not occurred within the thirty-day requirement of Rule 1.525, then only a showing of excusable neglect could

extend the period.

See also Gulliver Academy, Inc. v. Bodek,

694 So. 2d 675 (Fla. 1997). This court agreed with Fisher that the trial court may

extend the thirty-day requirement contained in Rule 1.525 if there is a reservation of jurisdiction in the final judgment. See Saia Motor Freight Line, Inc. v. Reid, 29 Fla. L. Weekly D2669 (Fla. 3d DCA Nov. 24, 2004). not applicable here. This authority, however, is

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In this case, the notice of voluntary dismissal was filed on February 25, 2002, and the trial court, acting on the

recommendation of a special master, did not reserve jurisdiction to consider the issue of attorney fees until April 3, 2002, after the expiration of the thirty-day period. The motion for

attorney fees was not filed until May 27, 2003, over a year after the cause had been dismissed. This would have been

untimely under Gulliver Academy even had the trial court timely reserved jurisdiction. Under the facts of this case, the motion for fees was

untimely and no excusable neglect was shown to authorize the court to award attorney fees and costs. REVERSED and REMANDED for further action consistent with this opinion.

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