IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND
APPELLATE
DIVISION
JOHN J. OLIVERIA,
Appellant,
vs. Appeal No. 06-0063AP-88A
UCN522006P000063XXXXCV
TYLER BRITTO and
JAMES BRITTO,
Appellees.
__________________________________/
Appeal from
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 (
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.
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
________________________________
R. TIMOTHY PETERS
Circuit Judge, Appellate Division
______________________________ ______________________________
GEORGE M. JIROTKA CYNTHIA
J.
Circuit Judge, Appellate Division Circuit Judge, Appellate Division
Copies furnished to:
Honorable Walt Fullerton, County Court Judge
Honorable Judge Henry Andringa, Administrative Judge,
Ryan C. Griffin, Esquire
C. Bryant Boydstun, Jr., Esquire
Brian D. Treby, Esquire
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