IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND FOR PINELLAS COUNTY, FLORIDA
APPELLATE DIVISION

F & S FRAME AND TRIM, INC.

                        Appellant,

vs.                                                                                                        Appeal No. 99-6272-CI-88A

CLINE DESIGN BUILD, INC.,
OCEANSIDE ESTATES ASSOCIATION, LTD.,
PRESIDENTIAL MANOR CORPORATION,

                        Appellees.

____________________________________/

Opinion filed ________________________

Appeals from Final Judgment

County Court, Civil Division, Pinellas County

The Honorable Karl B. Grube

Doreen S. Young, Esquire

Holland & Knight, LLP

One Progress Plaza

200 Central Avenue

P.O. Box 3542

St. Petersburg, FL  33731

Attorneys for Appellant

Sharon E. Krick, Esquire

Johnson, Blakely, Pope, Bokor,

Ruppel & Burns, P.A.

911 Chestnut Street

P.O. Box 1368

Clearwater, FL  33757

Attorneys for Appellee

ORDER AND OPINION

            THIS CAUSE came before the Court on appeal, filed by F & S Fram & Trim, Inc. (“Appellant”), from a final Order denying Plaintiff’s Motion for Award of Attorney’s Fees, entered August 17, 1999, by the Pinellas County Court, Civil Division.  Upon review of the record and the briefs and being otherwise fully advised in the premises, the Court finds the Order is reversed and remanded as set forth below:

             1.  On January 6, 1999, the County Court held a non-jury trial on a cause of action brought by the Appellant to foreclose on a construction lien and to collect related damages against Cline Design Build, Inc., Oceanside Estates Association, LTD., and Presidential Manor Corporation (“Appellees”).

            2.  On January 8, 1999, the County Court contacted the Appellant’s counsel by telephone, through it’s Judicial Assistant, and advised counsel that the Court had ruled in Appellant’s favor.  The Court requested that the Appellant prepare and submit a final judgment. 

            3.  Appellant’s counsel did not immediately submit a proposed final judgment.  On April 2, 1999, a Notice of Hearing on Appellant’s Motion for Award of Attorneys Fees was served on opposing counsel, with a hearing date of May 27, 1999.  The Motion itself was served on opposing counsel on May 4, 1999.

            4.  On May 14, 1999, Appellant submitted a proposed Final Judgment that expressly reserved jurisdiction on attorney’s fees.

            5.  At the hearing on May 27, 1999, the County Court entered the Final Judgment, but denied the Appellant’s Motion for Attorney’s Fees stating that the Motion had “not been filed within a reasonable period of time.”  The Court cited Stockman v. Downs, 573 So.2d 835, 838 (Fla. 1991) and Wunderle v. Fruits, Nuts and Bananas, Inc., 715 So.2d 325 (Fla. 2d DCA 1998) in reaching this conclusion.  

            6.  In Stockman, the Florida Supreme Court held that proof of attorney fees may be presented after final judgment upon motion within a reasonable time.  See Stockman, 573 So.2d at 838.  The Stockman holding was not violated in the present case, as the Appellant filed the Motion for Attorney’s Fees approximately two weeks before the Final Judgment was entered.

In Garcia v. Garcia, 534 So.2d 1211 (Fla. 3d DCA 1988), the Third District Court of Appeal held that the petition for attorney’s fees was not untimely where the motion was made well before the Final Judgment was entered and the Final Judgment itself retained jurisdiction to award fees. 

            7.  Wunderle is also not applicable to the case at hand.  In Wunderle, the Second District Court of Appeal held that “since the Appellees did not file their motion until two months after the jury verdict in their favor, we do not find that the motion for attorney’s fees was filed within a reasonable time.”  See Wunderle, 715 So.2d at 326.  However, in the present case the County Court entered a Final Judgment on a non-jury trial, not a jury verdict, and also specifically reserved jurisdiction with regard to attorney’s fees.  Further, the plaintiff in Wunderle had failed to properly plead attorney’s fees, which the Appellant correctly did in this case.

            8.  In Shipley v. Belleair Group, Inc., 2000 WL 299969 (Fla. 2d DCA 2000), the Second District recently distinguished Wunderle.  The Second District reversed the trial court for striking a motion for attorney’s fees and costs as untimely, because the trial court had specifically reserved jurisdiction in the final judgment to award attorney’s fees and costs in the future.  Shipley also held that “before a prevailing party is entirely stripped of its ability to recover fees, the losing party probably should be required to demonstrate some degree of prejudice arising from the prevailing party’s delay in filing the motion.”  The record shows no indication that Appellees have been prejudiced in any way by the filing date of Appellant’s Motion for Award of Attorney’s Fees.

            9.  Based on the foregoing, the County Court committed reversible error when it denied Appellant’s motion as not being filed within a reasonable time.

            Therefore, it is,

            ORDERED AND ADJUDGED that the final Order denying Appellant’s Motion for Award of Attorney’s Fees, is hereby reversed and remanded for consideration of attorney’s fees to be awarded to the Appellant.

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this 21st day of July 2000.

                                                                                                                                                

                                                           

___________________________________
CHARLES W. COPE
Circuit Judge, Appellate Division

 

Copies Furnished To:

The Honorable Karl B. Grube

Doreen S. Young, Esquire

Holland & Knight, LLP

One Progress Plaza

200 Central Avenue

P.O. Box 3542

St. Petersburg, FL  33731

Attorneys for Appellant

Sharon E. Krick, Esquire

Johnson, Blakely, Pope, Bokor,

Ruppel & Burns, P.A.

911 Chestnut Street

P.O. Box 1368

Clearwater, FL  33757

Attorneys for Appellee

Joseph Perlman, Esquire

1101 Belcher Road South, Suite B

Largo, FL 33771

Staff Attorney, Appellate Division