County Civil Court:  ATTORNEY’S FEES – Small Claims Court – Application of the Florida Rules of Civil Procedure, Rule 1.442 – trial court erred in awarding attorney’s fees based on Offer of Judgment made pursuant to Rule 1.442 when the Rules of Civil Procedure were never invoked in suit litigated in Small Claims Court – Order Upon Fees and Costs reversed.  Oliveria v. Britto, Appeal No. 06-0063AP-88A (Fla. 6th Cir. App. Ct. April 13, 2007). 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

 

JOHN J. OLIVERIA,

                        Appellant,

vs.                                                                                        Appeal No. 06-0063AP-88A

                                                                                            UCN522006P000063XXXXCV

TYLER BRITTO and JAMES BRITTO,

                        Appellees.

__________________________________/

Appeal from Pinellas County Court

Small Claims Division

 

Ryan C. Griffin

Attorney for Appellant

 

C. Bryant Boydstun, Jr., Esquire

Brian D. Treby, Esquire

Attorneys for Appellee

 

ORDER AND OPINION

 

            THIS CAUSE came before the Court on appeal, filed by John Oliveria (Oliveria), from the Order Upon Fees and Costs, entered August 30, 2006.  Upon review of the briefs, the record and being otherwise fully advised, the Court reverses the trial court’s ruling as set forth below.

The record shows that, on May 13, 2005, Oliveira, pro se, filed a Statement of Claim, in Small Claims Court, against Tyler Britto (Britto), seeking damages in the amount $ 2,281.11 as a result of property damage sustained in a jet ski accident.  In a separate Statement of Claim, also filed May 13, 2005, Oliveira sought damages against Britto in the amount of $ 4,852.99.  The damages sought were for two different jet skis.  These cases were consolidated by the trial court, sua sponte, on September 29, 2005.  Britto, represented by counsel, filed an Answer and Affirmative Defenses and was granted leave to file a third party complaint. 

On January 12, 2006, the Small Claims Division pre-trial hearing officer entered a Pre-Trial Conference Order and Notice of Trial setting forth the issues to be tried.  The Order is silent as to the possibility of Oliveira being subject to attorney’s fees should he not prevail.  The matter was tried on March 24, 2006, and the trial court entered, on April 24, 2006, Final Judgment in favor of Britto.  The Final Judgment stated that Oliveira would take nothing by his action and reserved jurisdiction to award attorney’s fees and costs.  Britto then filed a Motion for Award of Attorney’s Fees and Costs seeking attorney’s fees pursuant to Florida Statutes, § 768.79, and the Florida Rules of Civil Procedure, Rule 1.442.  Britto asserted that he was entitled to attorney’s fees because Oliveira rejected of his Offer of Judgment. 

After a hearing on the matter, the trial court entered its Order Upon Fees and Costs in which Britto’s counsel was awarded attorney’s fees in the amount of $ 3,850.00, and fees for an expert in amount of $ 575.00.  In awarding fees, the trial court made the following findings:

“After considering argument of counsel and legal authority, the Court concludes that the Offer of Judgment which applies in any civil action for damages is applicable in this Small Claims matter even though for purposes of discovery the full Rules of Civil Procedure were not invoked.

 

Further, the Court notes that at the January 12, 2006 Pre-Trial Conference, the Court questioned whether the Pro Se Plaintiff was suing the correct party.  Plaintiff was cautioned that a defense verdict would require the Court to award Defendant’s attorney’s fees because of the September 14, 2005 Offer of Judgment.

 

Now after reviewing the pleadings of record, the applicable law and standards together with the Court’s own experience in considering these issues, as well as the evidence and argument presented during the fee hearing, Plaintiff shall tender the following amounts to Defendant . . . ”   

 

Oliveria timely filed a Notice of Appeal of the trial court’s ruling.  Before this

Court, Oliveria argues that the trial court erred in awarding attorney’s fees when the Florida Rules of Civil Procedure were not invoked or, in the alternative, that the trial court erred in relying on an inadmissible offer of judgment in awarding attorney’s fee.  As these issues present pure questions of law, the standard of review is de novo.  See Martin Daytona Corp. v. Strickland Construction Services, 941 So.2d 1220 (Fla. 5th DCA 2006).

            In addressing the first issue, there is nothing in the record to show that the Florida Rules of Civil Procedure were invoked by either party or the trial court during the proceedings below as required by the Small Claims Rules, Rule 7.020(c).  Rather, the record shows that from the initial filing of the Statement of Claim in Small Claims Court, through the Final Judgment, which stated at the top “Civil Division Small Claims,” the matter was tried in Small Claims Court and, therefore, was subject to the Small Claims Rules.  Indeed, the trial court’s handwritten note at the bottom of Oliveira’s “Motion for Courts to Allow to Amend Complaint,” filed February 1, 2006, show that the trial court granted the Motion, “but limited to 5K max damages per case,” which restricted the jurisdictional amount to Small Claims Court.

            This Court has consistently ruled that the Florida Rules of Civil Procedure must be properly invoked before a Small Claims action is subject to such rules, including Rule 1.442.  See Sypien v. NCO Financial Systems, Inc., 10 Fla. L. Weekly Supp. 755 (Fla. 6th Cir. App. Ct. Aug. 13, 2003); Townsend v. Asset Acceptance Corp., 12 Fla. L. Weekly Supp. 189 (Fla. 6th Cir. App. Ct. Aug. 6, 2004); see also Care Therapy & Diagnostics, Inc. v. Bristol West Ins. Co., 12 Fla. L. Weekly Supp. 1092 (Fla. Hillsborough Cty. Ct. Aug. 23, 2005)(denying a motion for attorney’s fees pursuant to Rule 1.442 and Florida Statutes, section 768.79, when the Florida Rules of Civil Procedure were never invoked); First Choice Medical Center v. Progressive Express Ins. Co., 10 Fla. L. Weekly Supp. 1055 (Fla. Seminole Cty. Ct. Sept. 15, 2003)(finding that Rule 1.442 does not apply in small claims proceedings unless properly invoked).  Further, there is nothing in the record to show that Oliveira was on notice that the trial court was proceeding under the Florida Civil Rules of Procedure or that Oliveira waived any objection he might have to proceeding under those Rules. Compare with Central Imaging Services, Inc. v. Progressive Express Ins. Co., 12 Fla. L. Weekly Supp. 520 (Fla. 6th Cir. App. Ct. Oct. 6, 2004).  Under these facts, the Court concludes that the trial court erred in awarding attorney’s fees and costs.  

Therefore, it is,

            ORDERED AND ADJUDGED that the Order Upon Fees and Costs is reversed and this cause is remanded for action consistent with this Order and Opinion.    

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ______ of April 2007.

 

                                                         ________________________________

                                                         R. TIMOTHY PETERS

                                                         Circuit Judge, Appellate Division

 

 

 

 

______________________________                        ______________________________

GEORGE M. JIROTKA                                          CYNTHIA J. NEWTON

Circuit Judge, Appellate Division                                   Circuit Judge, Appellate Division

 

Copies furnished to:

 

Honorable Walt Fullerton, County Court Judge

 

Honorable Judge Henry Andringa, Administrative Judge, Pinellas County Court

 

Ryan C. Griffin, Esquire

911 Chestnut Street

Clearwater, FL  33756

 

C. Bryant Boydstun, Jr., Esquire

Brian D. Treby, Esquire

100 Second Avenue South

Suite 701 City Center

St. Petersburg, FL  33701