I didn’t say you were entitled

FLORIDA LAW WEEKLY

VOLUME 50, NUMBER 19

CASES FROM THE WEEK OF MAY 16, 2025

RULE 1.525 REQUIRES THE PREVAILING PARTY TO FILE A MOTION FOR ATTORNEYS’ FEES AND COSTS WITHIN 30 DAYS

Berg v. Scurry, 50 Fla. L. Weekly D1023 (Fla. 2nd DCA May 7, 2025):

The case involved a dispute over land. The case went to trial and resulted in a 24-page final declaratory judgment.

In the order, the court addressed the prevailing party’s right to attorneys’ fees. There was no actual finding that the prevailing party was entitled to fees though.

The motion for attorneys’ fees was not filed within 30 days. The prevailing party asserted that this case was subject to the one exception that allows a party to file a motion for attorneys’ fees outside of the 30-day rule period; i.e., when the court finds entitlement to fees, but reserves on amount.

Rule 1.525 and its 30-day rule helps avoid prejudice and unfair surprise. Once the trial court determines entitlement, the 30-day time requirement is no longer necessary.

While the court observed that it was a close call in this case, it found that the final judgment did NOT rule on entitlement, and therefore the failure to file the motion for fees within 30 days, barred recovery of those fees.

TRIAL COURT ERRED IN DISMISSING ORIGINAL COMPLAINT WITH PREJUDICE WITHOUT AFFORDING PLAINTIFF AT LEAST ONE OPPORTUNITY TO AMEND WHERE RESPONSIVE PLEADING HAD NOT BEEN SERVED—PLAINTIFFS PRESERVED THEIR ARGUMENT SEEKING A RIGHT TO AMEND BY RAISING IT IN A MOTION FOR REHEARING

Barr v. MS International, 50 Fla. L. Weekly D1059 (Fla. 4th DCA May 7, 2025):

Under Rule 1.190(a) a plaintiff has an absolute right to amend the complaint before a responsive pleading is served. Where a defendant has filed only a motion to dismiss following the filing of a complaint, the trial court does not have discretion to dismiss the action with prejudice even if the amendment of the complaint would be futile.

The court also found that the plaintiffs preserved their argument by raising it in their motion for motion for rehearing.