Did you Move to Continue or to do by Zoom?

FLORIDA LAW WEEKLY

VOLUME 49, NUMBER 36

SEPTEMBER 6, 2024

TRIAL COURT DID NOT DENY DEFENDANT DUE PROCESS BY DENYING HIS MOTION TO QUASH SERVICE OF PROCESS DURING A HEARING DEFENDANT ADVISED HE WAS UNABLE TO ATTEND — ALTHOUGH DEFENDANT DID FILE A NOTICE OF UNAVAILABILITY, HE DID NOT MOVE FOR A CONTINUANCE

Padilla v. Capital One, N.A., 49 Fla. L. Weekly D1803 (Fla. 4th DCA Aug. 28, 2024):

The defendant challenged the trial court’s denial of his motion to quash service of process and the subsequent denial of his motion for sanctions and motion to dismiss. The court observed that the orders denying the appellant’s motion for sanctions and motion to dismiss were not appealable under Rule 9.130, and the court dismissed the appeal as to those orders.

The defendant claimed the trial court denied him due process, because the trial court scheduled the motion to quash at a time he had filed a notice of unavailability. However, the appellate court noted that the defendant failed to move to continue the hearing.

Although a notice of unavailability is useful to apprise the court and parties of potential scheduling conflicts and for assisting them in efforts to accommodate counsel, it is not an adequate substitute for obtaining a continuance order.

While the appellant apparently tried to attend the hearing by Zoom, the trial court had set the motion to be in person, and the defendant also failed to move to appear at the hearing using communication technology under Florida Rule of General Practice and Judicial Administration 2.530(b).

Because there was no transcript of the hearing and the trial court’s ruling came to the appellate court clothed with a presumption of correctness, the defendant failed to demonstrate reversible error.

MOTION FOR APPELLATE ATTORNEYS’ FEES DENIED–EVEN THOUGH THE MOTION IDENTIFIED A STATUTORY AND CONTRACTUAL BASIS FOR THE FEES, THE PARTY FAILED TO EXPLAIN HOW THE CITED STATUTE APPLIED TO THE CASE AT ISSUE, OR CITE TO THE RECORD OR OTHERWISE ATTACH A CONTRACT TO ITS MOTION

Lance v. Bright Water Homeowners Association, 49 Fla. L. Weekly D1807 (Fla. 5th DCA Aug. 30, 2024):

The Homeowner’s Association prevailed on the appeal. However, the court denied its motion for appellate attorney’s fees.

A motion for attorneys’ fees must state the grounds on which recovery is sought in accordance with Rule 9.400(b), which requires the party to identify the source of entitlement to an award of fees. Moreover, if the attorneys’ fee motion is based on an agreement in a note or contract, the pertinent document should be attached to the motion or cited from the record.

Here, while the party’s motion identified both a statutory and contractual basis for the award of fees, the statutory basis merely identified a Florida statute related to condominium associations, when the prevailing party was a Homeowners Association. The motion failed to explain how the statute applied.

Additionally, while the prevailing party raised a contractual basis for fees in the motion, it failed to cite to the record or otherwise attach the applicable declaration to its motion, let alone identify the specific provision in the declaration entitling it to fees.

The appellate court admonished that it will not conduct legal research for a party to identify a statute if one exists and that the party should have identified in its motion, nor will it search the record for what appears to be the operative contract and then search the contract for the correct provision.

The take-away from this case is that motions for appellate fees have to be much more specific than courts once seemed to allow. When a party moves for appellate attorney’s fees, that party has the burden to demonstrate the entitlement to fees.